The Volokh Conspiracy

Today the Supreme Court decided Trump v. Barbara, the birthright citizenship case. A 6-3 majority struck down Donald Trump's executive order denying birthright citizenship status to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. I think the Court got this extremely important decision right. In so doing, they saved hundreds of thousands of people from being subject to deportation - often to a lifetime of poverty and oppression.

The dissenting opinions by Justices Clarence Thomas and Samuel Alito mishandle key points. Most notably, they overlook the reality that their positions would have denied birthright citizenship to large numbers of freed slaves and other Blacks, thus negating the central purpose of the Citizenship Clause of the 14th Amendment.

The Citizenship Clause states that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Trump administration claims that children of undocumented immigrants and temporary visa-holders are not "subject to the jurisdiction." For many decades, the dominant interpretation of this phrase was that "subject to the jurisdiction" covers all children of parents who are required to obey US law. For example, they can be prosecuted if they commit a crime.

The majority opinion written by Chief Justice John Roberts rightly endorses this approach. It traces this rule back to British traditions of birthright citizenship later adopted by the US:

In 1868, as today, "jurisdiction" (in the context of a sovereign) refers to the "[p]ower of governing or legislating." N. Webster, An American Dictionary of the English Language
732 (C. Goodrich & N. Porter eds. 1865)…. To be "subject to" the jurisdiction of the United States, then, is to "liv[e] under" its "dominion," J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause's territorial focus on those born "in" the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory….

The scope of that power was well settled in 1868, largely by "the celebrated case" of Schooner Exchange v. McFaddon, 7 Cranch 116…. Expounding on "general principles," Chief Justice Marshall explained that "jurisdiction" referred to "the full and complete power of a nation within its own territories." 7 Cranch, at 136. That "absolute" power was "susceptible of no limitation not imposed" by the nation itself. Ibid. All sovereigns, however, were understood to have impliedly waived their jurisdiction in "certain peculiar circumstances"—in essence, where exercising jurisdiction would "degrade the dignity" of "foreign sovereigns." Id., at 136–137. As in the context of jus soli, those peculiar circumstances arose most frequently in the case of "foreign ministers." See id., at 138–139. "[E]very sovereign would hazard his own dignity," after all, if his officials abroad were made to "owe temporary and local allegiance to a foreign prince." Id., at 139….

The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th- century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).

No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States….

As the Court points out, this approach was reinforced by the Supreme Court's ruling in United States v. Wong Kim Ark (1898), which held that birthright citizenship applies to all children of noncitizens born in the United States,  with the exception of children of foreign diplomats, those born on foreign "public ships" in U.S. territorial waters (which remain under the sovereign authority of their home governments), Native Americans born under the rule of tribal governments, and children of soldiers in invading armies occupying U.S. territory.

I think this is basically right. And it is reinforced by the main purpose of the Citizenship Clause of the Fourteenth Amendment: granting citizenship to then-recently freed slaves and other Blacks. The 1857 Dred Scott decision had ruled that Black people (even those who were not slaves) could never be citizens of the United States. The Citizenship Clause was intended to reverse this terrible decision. As I explained in a Lawfare article, every argument offered by the Trump Administration and its supporters would also have denied citizenship to large numbers of freed slaves, their children, and other Black people.

In a lengthy dissent partly joined by Justice Gorsuch, Justice Clarence Thomas argues that "subject to the jurisdiction" excludes children people who are not "domiciled" in the United States, and undocumented immigrants and temporary visa holders do not have such domiciles. But, as Thomas himself recognizes,  the main purpose of the Citizenship Clause  was "ensuring that all black Americans, both the newly freed slaves and those who were free before the war, would be treated as citizens of the United States and of the States in which they lived." His domicile theory is at odds with that objective.

As explained in my Lawfare article, many thousands of slaves were brought into the United States illegally after the US banned the slave trade in 1808. If illegal entry is enough to vitiate domicile, these people and their descendants would not - under Thomas's approach - be entitled to birthright citizenship. In the article, I point out this and other related flaws in the domicile theory:

If  "domicile" simply means living in the United States, then both slaves and illegal migrants obviously qualify. If it means living in the U.S. legally, then undocumented migrants can be excluded. But the same goes for slaves brought in illegally. And… there were many such illegally transported slaves.

Moreover, to the extent that the Supreme Court has held that "domicile" matters for jurisdiction, it also requires that any legal change of domicile must be voluntary. For example, in a 1989 case involving a conflict between state and tribal jurisdiction over the adoption of Native American children, the Court ruled that  "[o]ne acquires a 'domicile of origin' at birth, and that domicile continues until a new one (a 'domicile of choice') is acquired." Nineteenth century jurists held similar views. For example, in the 1890 case of Penfield v. Chesapeake O. & S.W. R. Co., the Supreme Court held that "No length of residence, without the intention of remaining, constitutes domicile" in a case where state jurisdiction over a case turned on residency…. Most, if not all, slaves forcibly brought to the U.S. obviously had no "intention of remaining" but would have preferred to be returned to their original homes. On this theory, undocumented migrants actually have a stronger claim to domicile than slaves did, since the former come voluntarily and generally have every intention of remaining indefinitely.

In sum, either children of undocumented migrants and temporary visa holders satisfy any relevant domicile requirement, or that requirement would exclude all or most slaves and their descendants.

In his separate dissent, Justice Gorsuch raises an additional criticism of Thomas' theory (which explains why he joins Thomas only as to the status of children of temporary visitors, while potentially excluding undocumented migrants who wish to remain in the US indefinitely):

Perhaps Wong Kim Ark does not squarely foreclose the government's position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents' presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court's longstanding recognition that every person is domiciled somewhere?

This is correct. But worth nothing that slaves, of course, did not choose to make their homes in the US at all.

In a separate dissent, Justice Alito argues that the Citizenship Clause "confers citizenship on only those children who, at birth, owe allegiance solely to this country." Children of illegal migrants and temporary visa-holders, he contends, may owe allegiance to their parents' countries of origin. As I explained in my article, this theory, too, would deny birthright citizenship to freed slaves:

If, as this theory assumes, people owe allegiance to the government of the country they are born in, it obviously applies to virtually all freed slaves as well, even those brought into the U.S. legally.

Africans captured and sold to slave traders owed "allegiance" to the rulers of their homelands just as much as illegal migrants or temporary visa-holders do. Indeed, the former likely had stronger ties of allegiance than the latter, since captured slaves—unlike migrants—had no desire to leave their homelands and live under the rule of the U.S. government instead.

Contrary to racist stereotypes, many West African rulers of the 18th and 19th centuries had considerably developed states…. And even more primitive tribal rulers could still claim allegiance from their subjects, as the U.S. government recognized in the case of Native American tribal governments.

This is part of the reason why children born on Native American reservations run by such governments are among the few categories of people born in the United States who were not historically understood to be given birthright citizenship by the Citizenship Clause….

The Trump administration and some of its amici, such as Ilan Wurman, combine the "allegiance" argument with the idea that illegal migrants are not under U.S. jurisdiction because they are not under the "protection" of the U.S. government. Randy Barnett and Wurman have argued that birthright citizenship applies only to the children of people who have entered into a "social compact" and an "allegiance-for-protection" exchange with the U.S. government.

But, as I pointed out in an earlier critique of the Barnett-Wurman argument, slaves obviously were not part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters. Indeed, illegal migrants and temporary visa holders actually get far more protection from the U.S. government than slaves did. While undocumented immigrants are subject to deportation, U.S. authorities still, at least to some extent, protect them against enslavement, forced labor, and assault. Temporary visa holders get still more protection, as they can seek protection from law enforcement without fear of getting deported.

In a concurring opinion, Justice Kavanaugh argues that the Trump executive order is illegal under a federal law enacted in 1940, but not under the Fourteenth Amendment. He contends that illegal migration was a problem largely unknown in 1868, and that the Citizenship Clause should not be understood in a way that precludes addressing this supposedly "new and different circumstance." But, as already noted, illegal entry of slaves was not a novel issue at all, and the Citizenship Clause was intended to cover such people. Moreover, even if there were few federal immigration restrictions prior to 1868, many state governments did have such restrictions, and it is notable that the Citizenship Clause grants state citizenship as well as the federal kind. Illegal entry was no obstacle to the latter, and the same logic applies to the former.

Kavanaugh also states that the  "only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign." He claims this unifying principle also covers children of undocumented immigrants and temporary visa holders. In reality, these four exceptions are also unified by their exemption from many or all US laws. In addition, as already noted, any theory under which the latter two categories could be added to the list of exceptions would also cover numerous freed slaves and other Blacks.

In a concurring opinion, Justice Ketanji Brown Jackson rightly emphasizes the links between the Citizenship Clause and Black Americans lengthy struggle for freedom and equal rights. She explains how the Citizenship clause is based on a "universalist approach" to liberty and equality, as opposed to one limited to a specific group.

I think she is generally right on this, and there are many eloquent quotes and notable historical points in her opinion. But it is worth noting that the Citizenship Clause itself does not fully live up to these universalist aspirations. As I explained in a post on why birthright citizenship is a "second-best" policy, the Fourteenth Amendment makes citizenship dependent on morally arbitrary circumstances of location of birth, which is not entirely dissimilar to the rules based on race and ancestry that Jackson and nineteenth century advocates of racial equality rightly condemned. A fully universalistic policy would eliminate such distinctions entirely.

That said, the moral limitations of the Citizenship Clause do not vitiate its legal validity. And today's decision is vastly preferable to one that would have upheld Trump's executive order, thereby subjecting hundreds of thousands of people to deportation.

UPDATE: For those interested, I have posted a compendium of all my writings on the birthright citizenship issue here.