First Circuit Rules Trump's Birthright Citizenship Executive Order is Unconstitutional

This is the second appellate court ruling against the order. So far, every court that has addressed this issue has ruled the same way.

Photo by saiid bel on Unsplash; Reamolko

Yesterday, the US Court of Appeals for the First Circuit issued a decision that Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas is unconstitutional. It also ruled that it violates a 1952 law granting naturalization to children born in the United States, and upheld a nationwide injunction against implementation of the order. This is the second appellate court decision ruling against Trump's order, following an earlier Ninth Circuit decision. Multiple district court judges (including both Democratic and Republican appointees) have also ruled that the order is illegal, and so far not a single judge has voted to uphold it.

Judge David Barron's opinion for the First Circuit runs to 100 pages. But he emphasizes that this length is the product of the large number of issues (including several procedural ones) that had to be considered, and does not mean the case is a close one:

The analysis that follows is necessarily lengthy, as we must address the parties' numerous arguments in each of the cases involved. But the length of our analysis should not be mistaken for a sign that the fundamental question that these cases raise about the scope of birthright citizenship is a difficult one. It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright.

I won't try go to through all the points in the decision in detail. But I think Judge Barron's reasoning is compelling and persuasive, particularly when it comes to explaining why this result is required under the Supreme Court's ruling in the 1898 Wong Kim Ark case, and why the 1952 naturalization statute provides an independent ground for rejecting Trump's order.

I would add, as I have noted previously (e.g. here and here), that virtually all the government's arguments for denying birthright citizenship to children of undocumented immigrants and those on temporary visas would also have denied it to numerous slaves freed as a result of the Civil War and the Thirteenth Amendment. For example, if children of people who entered the US illegally are ineligible, that would exclude the children of many thousands of slaves who were brought into the US illegally after Congress banned the slave trade in 1808. And granting citizenship to freed slaves and their children was, of course, the main purpose of the Citizenship Clause of the Fourteenth Amendment.

I also think the ruling is sound in concluding that the state government plaintiffs in the case have standing to sue (though, admittedly, the Supreme Court's precedents on state standing are far from a model of clarity), and in suggesting that "complete relief" for their injuries requires a nationwide injunction (though it ultimately remanded this issue to the district court for further consideration). State lawsuits are one of several possible exceptions to the Supreme Court's general presumption against nationwide injunctions in Trump v. CASA, Inc. Both this exception and that for class actions have been used in lower court decisions against the birthright citizenship order, since Trump v. CASA came down in June. These exceptions are among the reasons why CASA has so far not had anywhere near as devastating an impact as some feared (though I continue to believe it was a bad decision).

Both the substantive birthright citizenship issue and the procedural issue of the proper scope of injunctions are likely to return to the Supreme Court. Hopefully, the justices will affirm the lower court rulings on these issues. We shall see.

Comments

[JohnSteed]

We would all benefit from a word limit on judicial opinions. No author without overweening self indulgence needs 100 pages.

[John F. Carr]

In California the Supreme Court can unpublish a published opinion it doesn't like. It takes the case and summarily affirms without an opinion of its own. The judgment of the court below stands. The precedent does not.

The merits question here could be decided on a postcard. The procedural questions take some more work.

[windycityattorney]

The first 35pages are on standing. So its not so egregious. The Court could have also shortcut its opinion by not addressing each and all of the govt's arguments but it chose to address and reject each of them for completeness.

[Poxigah146]

Judge Barron was appointed by the stupid, treasonous Kenyan, so the result was a foregone conclusion.

[MollyGodiva]

It was also a foregone conclusion because it was correct from a legal perspective.

[JohnSmith97]

Why bother to have a 14th amendment, when every judge just ignores it?

[MollyGodiva]

Go ask SCOTUS. They are the ones that deleted 14A3S.

[JohnSmith97]

I can see why you would be confused about the first sentence of section 1 in the 14th amendment.

But nice try at the whatabout topic change

[Stephen Lathrop]

"We shall see?"

How can a legal expert at this point, given the lower court and appellate court rulings already made, be content with an exhortation to patience?

SCOTUS should have disposed of this non-issue promptly, as soon as possible after the first case was filed. Delay seems ominous. Even patience with delay seems ominous.

Perhaps some procedural failure on the part of lawyers for birthright citizen interests explains this delay? I hope so. I do not want to contemplate a possibility that SCOTUS has any role to put off a decisive rebuke to Trump.

[Poxigah146]

The fact that some low IQ mestizo hops over the Rio Grande, false claims asylum and is released into the United States, and later gives birth in our hospital at our expense doesn't mean that her illegitimate crotch dropping should be an American, with all the rights and privileges pertaining thereto.

Look at the pictures of the Guatemalans and other Central Americans streaming across the border. They're not Spaniards. They're nearly full-blooded American Indians. We don't need more Aztecs, Mayans and other people genetically predisposed to alcoholism, scalping and other disorder in this country. There's a reason we shoved these people onto reservations back in the 1800s. They don't belong among civilized human beings.

[J_A_H]

It appears to have been good enough for your ancestors. If having a low IQ ancestor who had to flee their homeland for the US is disqualifying, please show yourself out at the first available opportunity.

[Stupid Government Tricks]

There was a case just recently (https://www.scotusblog.com/2025/10/do-state-limits-on-malpractice-actions-apply-in-federal-court/) where a Florida resident had an accident in his Delaware house, was treated by a Delaware doctor, sued for malpractice, was bounced out for not following procedures, so he removed it to federal court for diversity reasons, never mind that everything happened in Delaware. The accident happened in August 2020. It is just now, 5 years later, getting the Supreme Court to decide which state's rules apply in federal court.

And you think this case is slow?

Last thing lawyers want is clarity which reduces their billable hours.

[David Nieporent]

While it has nothing to do with your point about the speed of the courts, your description of the procedural history of the case you cite is not correct. A plaintiff cannot remove a case, let alone a case that was dismissed. What happened was that the plaintiff sued in federal court in the first instance, the case was tossed for failure to comply with the Delaware AOM statute, and he appealed. (If the plaintiff had filed in state court, the defendant potentially could've removed — if he used snap removal — but would've had no incentive to do so in this case.)

[David Nieporent]

SCOTUS should have disposed of this non-issue promptly, as soon as possible after the first case was filed. Delay seems ominous. Even patience with delay seems ominous.

Sigh. You've been told repeatedly that this isn't how it works. The Supreme Court has no authority to just randomly grab cases and decide (or re-decide, in the case of your opposition to Trump v. U.S.) them.

[Stephen Lathrop]

The Supreme Court has no authority to just randomly grab cases and decide (or re-decide, in the case of your opposition to Trump v. U.S.) them.

Nieporent — Really? Who does have that authority, the authority to decide Supreme Court procedure if the Supreme Court says otherwise?

I get that there was a time, about a century ago, when Congress reviewed Supreme Court procedure, with regard to certiorari. Congress decided, and the Supreme Court said, in effect, "Great, we will take it from there." Thereafter the Court put the Congressional constraints aside, and went on to do just as they pleased.

As I see it, the Constitutional Cases and Controversies jurisdictional doctrine now lies in shreds. Instead of hearing cases whole, the Court prefers directed questions for briefs, to more efficiently get to the meat of political policy questions it should not decide at all. The Court likes to do that by means of procedural novelties it tailors to the policy outcomes it is after. It lets those decide cases without reaching the merits.

That is the history of Trump v. United States. I think that Constitutionally, the Court still owes the nation a merits decision on that catastrophically precedential case. By ignoring the merits, the Court created an IOU to the nation.

Feel free to tell me I am wrong about that, because who am I to say anything, when the Court gets to decide. If that is your rebuttal, then you are repeating my point, that the Court uses whatever procedures it wants, and acknowledges no constraints.

I have not even been saying that the Court must pay off its IOU. I have just been asking the Court to do on its own what would be wiser for the Court, and for America. If the Court did decide to do that, who would stop them?

[David Nieporent]

If the Court did decide to do that, who would stop them?

If the Court tomorrow said, "We've reviewed all of Stephen Lathrop's posts, and we conclude he's a domestic terrorist; we order him to be imprisoned for five years at hard labor," who would stop them?

Feel free to tell me I am wrong about that, because who am I to say anything, when the Court gets to decide. If that is your rebuttal, then you are repeating my point, that the Court uses whatever procedures it wants, and acknowledges no constraints.

This is cloudcuckooland bizarre. I'm saying that there are constraints; you're the one saying that there aren't, and SCOTUS can (and should!) just go around deciding cases where it doesn't have jurisdiction.

I don't know what "merits" you're complaining that SCOTUS didn't decide, but yes, you're wrong about everything.

[Stephen Lathrop]

Nieporent — So put aside the ipse dixits, and name the constraints.

You seem to suppose that, "jurisdiction," is a magic word. I don't see much magic left, after Bush v. Gore. A Court which can award itself jurisdiction to dictate a presidential election outcome, and turn another president into a king, can demonstrably do whatever it wants.

That may not make America's governance crisis easier to get out of, but it makes it easier to understand accurately. The problem is judicial turpitude, but not through the entire system, only in the highest Court.

What do you think is going on in this country? This is not a civics class pageant staged to the theme, "The Glories of the Law."

Let me help you out. Here is what I think is your best argument against what I have advocated. If the Supreme Court retains jurisdiction to reopen a previously decided case, then that takes a measure of needed finality out of the rule of law. Not that precedents overruled don't do that too, but of course a bigger myth of finality serves that need better than a smaller one.

Can you think of anything better? I hope so, because compared to what is at risk this time, that is weak sauce. Let's see, which risk should we most want to minimize, the risk of a jurisdictional stutter at the Supreme Court, or the risk of an end to American constitutionalism?

Responding to my own self-critique, I note the Court's former one-ride-only dodge in Bush v. Gore, and call for its use again.

Amidst crisis, it would be useful to the American people to know with certainty whether their entire government is ready for constitutional overthrow, or only two branches of it. If it's the latter, then the next election still matters.

If the Court is left to temporize all the way until the mid-term election gets contested in earnest, the risk of violence and chaos will get worse. With an authoritarian already in control of the executive, that ought to be a terrifying prospect for everyone.

[wvattorney13]

How does your proposal not turn the Supreme Court into everything you claim that Trump is, and more? The Court could do absolutely anything. After all "who is going to stop them"?

That's what you want? Or does it only last so long as the Court is doing semi-reasonable stuff or things that you like?

[Stephen Lathrop]

WVattorney13 — That's a fair question. I do not insist what I wrote above is a good solution to optimize Court performance. Far from it. It's a candid makeshift, to address a developing emergency. Were anyone here, or anywhere, proposing anything better I would be delighted to forget what I wrote, and help the nation do better by any more sensible method.

Because I am not seeing much of anything proposed, I am not seeing better. Given your own hypothetical impression of an Executive threat to overthrow the Constitution with Supreme Court connivance, what would you propose?

An optimized solution would maybe do something like this: insist the Court take cases whole, with an obligation to decide every case on its merits first, and write that decision. Then, if the case was not tossed on the merits, the question of procedural fairness would get attention, with another written decision. The party bringing the case gets relief only if it wins both decisions.

No case which gets tossed on the merits can become precedent. If the case on the merits is not sustained, the Court never reaches the procedural questions.

The reason to decide the merits first is to force the Court back to Cases and Controversies as a jurisdictional limitation. A weakness of the present process is that appellate courts are bound by facts from below, but at liberty to do as they please with procedures. I think it is outrageous to let the Court invent procedures to reach desired outcomes, call such outcomes precedent not only on the procedures, but also on merits questions which the court either bypassed or flagrantly misinterpreted, and call that justice.

But I do dispute, "Everything Trump is and more." This Court has been Trump's enabler. But the Executive branch is famously the force multiplier for the Court. It is the Executive which supplies the authoritarian, "more."

To what I proposed above, I would add two other Court constraints from Congress. First, an explicit, and explicitly enforceable, code of ethics for Supreme Court Justices. Second, a law against oath breaking by all sworn officials of the federal government. The latter might better be accomplished by an amendment, I concede. But there is precedent for statutory law against oath breaking.

Either way, the oath breaking constraint I advocate would be written to make the jointly sovereign People the judges of oath performance for every sworn federal official. It is the People who required the oaths in the first place. They are the only proper judges of their satisfaction. It is paradoxical to leave any sworn office holders to be the judges of their own oath performance.

To be convicted of oath breaking, an official would be targeted exclusively by federal grand jury initiative. No prosecutorial power could initiate an oath breaking charge. That would go far to reduce partisan corruption of the process, or tit-for-tat retaliation games.

The initiative would be by presentment, with the official charged subject to trial beyond a reasonable doubt by a petit jury, as in the case of a felony charge, but without possibility of criminal penalty.

The prosecution would be conducted by a prosecutor hired and supervised by the grand jury. The only verdicts possible would be, "Faithful performance," or Unfaithful performance."

Because no criminal penalty would be at stake, no 5A protection for the official charged would apply. All questions would have to be answered under oath, on pain of contempt. The sole penalty to follow after a unanimous conviction for oath breaking would be removal from office, and disqualification from future office holding.

The President and Vice President would be treated as special exceptions. No other officials get a national mandate directly from the People by election. After so comprehensive an approval, it would risk paradox to let a few grand jurors and petit jurors overturn a national election result.

There would not be much risk in excepting the President and Vice President. A President or Vice President acting with an eye to be unfaithful to their own oaths would find it more difficult to get cooperation from subordinates held to honest oath performance. For instance, it would be harder than it now is to imagine a military coup organized by a President who lost an election but refused to leave office. Likewise for other constitutional miscarriages, such as martial law to disrupt election procedures, or to seize control of vote counting.

It was formerly commonplace for American military professionals to hold their oaths sacred, and no doubt most still do. When the public routinely expected such fidelity from almost all of the professional military, there did not seem to be so much worry about disloyal militarists as there is now. The nation needs to get back to that former confidence, and making oaths enforceable should be tried as a means to effect that improvement.

I am unable to convince myself that Pete Hegseth puts his oath to the Constitution ahead of his loyalty to Donald Trump. Can you?

[David Nieporent]

The initiative would be by presentment, with the official charged subject to trial beyond a reasonable doubt by a petit jury, as in the case of a felony charge, but without possibility of criminal penalty.

The prosecution would be conducted by a prosecutor hired and supervised by the grand jury. The only verdicts possible would be, "Faithful performance," or Unfaithful performance."

Because no criminal penalty would be at stake, no 5A protection for the official charged would apply. All questions would have to be answered under oath, on pain of contempt. The sole penalty to follow after a unanimous conviction for oath breaking would be removal from office, and disqualification from future office holding.

You're literally just making this up as you go along, without any understanding of any of this. The 5A applies to everyone to the extent that testimony could lead to criminal prosecution, regardless of whether that particular proceeding is a criminal prosecution.

The grand jury is going to hire the prosecutor? Do you expect the grand jury to pay his salary out of their own pockets?

And then all of the sudden you carve out the one office where the issue is most significant and for which there is no other possibility of accountability?

[Stephen Lathrop]

Nieporent — Thanks for the pointers. Your remarks direct attention to necessary adjustments. Small stuff which Congress could take care of.

As for no accountability, impeachment for the President or Vice President would still apply. But as I mentioned, their power to make Constitutional violations happen would also be constrained by actually effectual limits on their oath-sworn cronies and supporters.

Do I understand you to be actually in favor of making sworn oaths unenforceable?

[Riva]

Without having carefully reviewed the entire opinion, two initial thoughts come to mind. First, if one actually has a cogent argument one generally doesn't need to write a book length opinion desperately trying to convince your readers. Especially if the matter is simply enough to be resolved by a statute on point. Which brings us to thought number two. A rather circular thought. Because how does the 1952 law resolve the matter: "a person born in the United States, and subject to the jurisdiction thereof" "shall be [a]national[] and citizen[] of the United States." Well thanks 5th Circuit. Genius.

[thesafesurfer]

Thank you for the post.

[y81]

I usually think your comments are too silly to merit response, but in this instance I will note that the 1952 law has to be interpreted in accordance with the Wong Kim Ark precedent which governed at the time, and so indicates that Congress intended to codify that precedent. And Wong Kim Ark, for those who care to take the time to read it (it's much less than 100 pages), says very clearly that the 14th Amendment codified, indeed constitutionalized, the ancient common law of jus soli, rather than the emerging European trend of jus sanguinis. (Personally, I think continental Europe has nothing to teach us about the nature of the just state, so rejection of their practice and understanding, where it differs from ours, is always the right answer.)

[NvEric]

The Wong Kim Ark precedent has no bearing on illegal aliens here giving birth or illegal aliens seeking asylum giving birth.

Alien status must be positively established before any subject to the jurisdiction of the US comes into play which may then grant citizenship.

[windycityattorney]

Wrong. Read around pg 50 of the opinion cited in the OP.

[Riva]

Don't recall reading your comments before but if the opening insult is any indication, they're weren't worth reading anyway.

And you might actually take the time to read Wong Kim Ark. There is admittedly much time spent on poorly worded dicta. The holding however is quite clear and limited:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Do me the kind favor and go back to not responding to my comments. Your obnoxious ignorance isn't helpful.

[David Nieporent]

Bot not programmed to understand how to interpret a Supreme Court decision. For one thing, there really isn't such a thing as "dicta" in a Supreme Court case; every Circuit Court agrees that it is generally bound by what the Supreme Court says, and doesn't get to ignore any part as "dicta." (SCOTUS, of course, is not bound by its own "dicta," but SCOTUS isn't bound by its own ratio decidendi, either.) In any case, and more importantly, none of Wong Kim Ark was dicta. It was not limited to children of permanent residents any more than it was limited to people of Chinese descent.

And every court, every judge, to have considered WKA over the last 127 years agrees that the bot's reading of the case is wrong. To be sure, a handful of judges have disagreed with WKA's holding, but none have said, "Actually, SCOTUS didn't say what everyone knows it said."

[Riva]

Not sure exactly what legal education you have given this display of consummate ignorance. Now, we could have discussed the nature of dicta in this context and whether it is persuasive or binding. But, given that you have decided to foreclose any discussion by acting like an ass (again, I confess i’ve lost count), we actually won’t have any further exchange. No point in discussing anything with an asshole troll, especially one as oblivious as this one.

[David Nieporent]

Bot programmed to pretend to flounce off every time someone responds to a post.

[wvattorney13]

"For one thing, there really isn't such a thing as "dicta" in a Supreme Court case; every Circuit Court agrees that it is generally bound by what the Supreme Court says, and doesn't get to ignore any part as "dicta.""

I strongly disagree with that. Dicta is dicta and a holding is a holding. No court is bound by SCOTUS dicta.

As far as Wong Kim Ark, you then pivot on your own words. If every jot and tittle of a SCOTUS opinion is meaningful, then it only holds what it holds---that case only applies to the Chinese or permanent residents or someone named Wong Kim Ark. After all, we can't ignore anything that SCOTUS said.

In any event, you wouldn't consider at least the possibility that the case comes out differently if Wong Kim Ark's parents had snuck into the country by subterfuge?

[windycityattorney]

No because then you would resort right back to language of the 14th amend "All persons born..." But really, the jus solis argument is the real problem for Trump's executive order. Because if nothing else, the sup ct in Wong Kim Ark adopts the English common law rule of birthright citizenship. So absent a few exceptions known to the common law and adding the one additional exception of indian members of their respective sovereign tribes; jus soli doesn't care how or why someone is here. If they aren't in one of the few exceptions; they are citizens by place of birth.

If you would like to argue that illegal aliens are one of the exceptions to the common law rule..have at it.

[Riva]

Not sure mass illegal alien border trespasses was really anything the Court had had in mind. If anything, they might have considered this as akin to an invasion. I don't even believe they would have agreed that the common law rule expounded on in dicta applied to mere visitors or travelers.

[windycityattorney]

I am sorry... are you saying that the constitution should be interpreted by common standards and modern public life vs original meaning at time of enactment???

Color me shocked!

The constitution is self correcting. But not the way you suggest. If the world has changed so much as to make a previous amendment untenable in some way; there is but only one way to fix it. Pass a new amendment. You might recall a certain alcohol prohibition amendment that provides an example of how to do this.

[Riva]

No, I'm saying the holding in Wong Kim Ark cannot be stretched to apply to the mass illegal alien trespasses we experience today since that was even considered by the Court. And to the extent one could analogize that to something in their dicta meanderings, it is more equivalent to the case of an invasion and the offspring of invaders would likely not be considered citizens of the territory their parents invaded under the dicta reasonings of this opinion. And I also pointed out that, in the context of this opinion, legal domicile was most definintely an important factor. Something else illegals by definition do not have. And neither do tourists. Would the Court have extended birth right status to the children of mere visitors? Likely not. It's not the Constitution I'm referring to, it's the limits of the applicability of Wong Kim Ark.

[David Nieporent]

Would the Court have extended birth right status to the children of mere visitors? Likely not.

The WKA court expressly cited English common law to the contrary:

By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England.

There is nothing in the decision that even remotely hinted at "But of course that isn't the law here in the U.S."

[Riva]

Funny thing, the actual holding (that would be the thing at the end for all the crazy Daves out there), the Court specifically noted the permanent legal domicile of the parents. I believe someone had commented: "For one thing, there really isn't such a thing as "dicta" in a Supreme Court case; every Circuit Court agrees that it is generally bound by what the Supreme Court says, and doesn't get to ignore any part as "dicta." So I guess we're going to have to deal with the domicile aspect now, aren't we crazy Dave?

And of course, you might also want to consider something the Wong Kim Ark court actually never considered, and that would be masses of illegal aliens trespassing over the border. As noted above, the closest analogy would be an invasion, and even the English common law wouldn't accord birth right citizenship in that circumstance. Of course this is all speculation on dicta, for whatever that is worth.

[Roger S]

Stories about English Common Law are interesting, but the USA can have its own immigration policies, and is not bound English law from centuries ago.

[David Nieporent]

Stories about English Common Law are interesting, but the USA can have its own immigration policies, and is not bound English law from centuries ago.

It is in fact bound by that English law if that English law is incorporated in our constitution. (Unless and until the constitution is amended.)

[David Nieporent]

the Court specifically noted the permanent legal domicile of the parents.

The Court also specifically noted that the parents were from China. But nobody — not even the bot — thinks that WKA applies differently to the children born of Chinese parents than to the children born of Turkish or French or Mexican parents. That the Court mentions the facts of the specific case before it does not mean that each of those facts was relevant to the decision.

[Riva]

I see DM has determined to revert back to his asshole self. Never far from the surface I suspect. My error in engaging as if the asshole was actually interested in a reasonable argument. Fuck off and good bye asshole, go argue with yourself.

[Voize of Reazon]

Whether a legal conclusion is binding or persuasive is a separate question from which facts were material in reaching it. "Every principle is binding" in no way implies that "every fact is material".

[David Nieporent]

I strongly disagree with that. Dicta is dicta and a holding is a holding. No court is bound by SCOTUS dicta.

Well, that's not what they think. Here, for example, is the 10th circuit:

While these statements are dicta, this court considers itself bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements.

Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (Emphasis added)

Here's the 1st Circuit:

"[c]arefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative,"

Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 861 n. 3 (1st Cir.1993).

1st Circuit again:

We think that federal appellate courts are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement.

[...]

If lower courts felt free to limit Supreme Court opinions precisely to the facts of each case, then our system of jurisprudence would be in shambles, with litigants, lawyers, and legislatures left to grope aimlessly for some semblance of reliable guidance. 

McCoy v. Massachusetts Institute of Technology, 950 F. 2d 13, 19 (1st Cir. 1991)

D.C. Circuit:

For this "inferior Court[]," U.S. CONST. art. III, § 1, cl. 1, however, that argument carries no weight since "carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative." United States v. Oakar, 111 F.3d 146, 153 (D.C.Cir.1997) (internal quotation marks and citation omitted);

Sierra Club v. E.P.A., 322 F.3d 718, 724 (D.C.Cir.2003)

4th Circuit:

But as we and our sister circuits have frequently noted, with "inferior [c]ourt[s]," like ourselves, "that argument carries no weight since carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative."

Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004), quoting Sierra Club v. E.P.A..

8th Circuit:

Federal courts, however, are not "free to limit Supreme Court opinions precisely to the facts of each case." McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 19 (1st Cir.1991),cert. denied, ___ U.S. ___, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992). Instead, federal courts "are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings, particularly when ... [the dicta] is of recent vintage and not enfeebled by any [later] statement." Id.

City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 557 (8th Cir. 1993)

I could go on; there is similar language from, I believe, every single circuit.

[David Nieporent]

In any event, you wouldn't consider at least the possibility that the case comes out differently if Wong Kim Ark's parents had snuck into the country by subterfuge?

Look, SCOTUS can do whatever it wants and isn't required to be consistent, so anything is possible. SCOTUS can say that the constitution requires that the president be able to fire anyone for any reason, and also that even if the president's firing someone is illegal, that person is not entitled to any relief other than monetary… except for if the person being fired works for the Fed, Because Reasons™.

But there is no basis for thinking it would come out differently, no. The birthright principle is grounded in centuries of common law — as the WKA court explained — and has never made an exception for "illegal immigrants." (There was no such status in the U.S. when the 14th amendment was adopted, but there was in England. Roma (a/k/a Gypsies) were forbidden from residing in England, but their children were still citizens at birth.)

[M L]

There's no basis for thinking that the jurisdiction clause included tourists and sojourners. Nor that they intended to give up the sovereign right to regulate immigration including who would be made subject to full political jurisdiction.

[Darwinnie]

Well, they’re not the historians the Supreme Court justices are. They’ll find them some history all right. At least six of them will anyway.

[John F. Carr]

There were three decisions because there were too many plaintiffs to fit into a single case. One of them left the constitutional questions to another opinion but ruled that the District Court should not have directed an injunction at the President. A judge can't order the President not to shoot a man on Fifth Avenue. A judge can order the Secret Service not to help him.

[thesafesurfer]

It ain't over until SCOTUS sings.

[Commenter_XY]

This is the correct answer ^^^

[Frank Drackman]

State Laws banning Abortion were "Unconstitutional"
until they weren't.
The Surpremes said Capital Punishment was "Unconstitutional" in 1972, then a few years later it wasn't.
and explain to me why if Obama Bin Laden had hidden out in Carlsbad CA, instead of Abbottabad Pock-E-Stan, any of his children born here would be Full Blooded Amurican Citizens.
Doesn't pass the Smell Test, like how can a team Ohio State not win it's Ohio State Conference Championship, not even PLAY in the Conference Championship, but win the National Championship??

Frank

[not guilty]

Frank, any of Osama bin Laden's children who were born here are full blooded American citizens, unless and until they affirmatively relinquish that citizenship. Where their father hid out has no bearing on that question.

[JonFrum]

At worst, we still deport the parents.

Question: If a woman is under a deportation order, and she has a child, is that child a citizen? I don't see why.

[windycityattorney]

Open the link to the opinion provided in the OP. Go to page 49-51. Read it.

[David Nieporent]

If a woman is under a deportation order, and she has a child, is that child a citizen? I don't see why.

Because the child was born in the United States and subject to the jurisdiction of the United States, and that's all that's required.

[M L]

Initial thoughts from a quick skim of the portions of interest.

1. This opinion appears better than the 9th circuit one. For example the 9th circuit had blatantly wrong statements about Elk v Wilkins and other things that jumped out. This opinion gives a somewhat better treatment of the key issue.

2. Interestingly the court puts this other statutory argument very much front and center. The court says it doesn't even need to address the constitutional issue, but does anyway. Almost suggests a bit of softness on the constitutional issue.

3. As to the key constitutional issue, basically the entire discussion of the issue is framed as just a discussion about WKA. It's very stare decisis. Which is fine. The Court decided this, and that's that. There is no direct treatment of the ratification debates and such, except within the framing of discussing WKA.

Unfortunately, WKA is a meandering mess of an opinion. And that shines through as the 1st circuit spends over 30 pages discussing it.

4. The court recites the WKA view of Indians, and of Elk v Wilkins. Of course, the logical implications are not explored and obvious questions such as "wait, what about Indians belonging to a tribe who temporarily ventured outside of the territories?" are elided. (I say of course because every proponent of maximal birthright citizenship has to ignore this.) Instead they just say "it's a single exception."

5. Again framed within the WKA discussion, the court discusses at length and relies heavily on a cited 1812 case of dubious relevance called The Exchange. Although that case was about sovereign immunity for foreign warships and included a discussion about how aliens were generally subject to temporary local jurisdiction in the sense of being subject to LAWS, it's used here to embrace the "temporary local allegiance" theory to show that aliens have allegiance in the sense of being subject to laws. There is even some loose sleight of hand to suggest this allegiance is exclusive.

For those familiar with the debate, it is really interesting that the court, arguing for birthright citizenship, would implicitly acknowledge that there is some basis for the claim that the jurisdiction clause meant something more than subject to laws, and that it requires exclusive allegiance. Yet that key issue of exclusive allegiance is not directly addressed.

6. Speaking of Justice Gray the opinion states:

"He rejected the contention that the phrase "not subject to any foreign power" in the Civil Rights Act was "intended," "for the first time in our history, to deny the right of citizenship to native-born children . . . ."

So there is even some acknowledgement of the 1866 CRA and its key phrase "not subject to any foreign power." The ratification debates make clear that the jurisdiction clause was considered to encompass this same exclusivity. The court never directly addresses this obvious problem.

But I think this illustrates a main theme. The thrust of the position in this opinion and from proponents more broadly is sort of an exasperated question - How could the CRA and the citizenship clause mean anything other than maximal birthright citizenship, given that this was generally what happened in practice? I.e., up to that point, foreigners moved here and the subsequent generations born were considered citizens. That was the law. And the opinion admits that the citizenship clause was declaratory of existing law.

The answer is of course that for obvious reasons, the US never restricted immigration up to that point in time, but later on it did, again for obvious reasons. Illegal immigration is an anachronism to that prior time period. Yet the principle of political jurisdiction always retained an inherent US sovereign choice to accept immigrants or not, and thereby to accept them within its full political jurisdiction, or not. Illegal immigrants and temporary visitors have not been accepted into the full political jurisdiction of the US, and neither WKA nor any other case has held otherwise.

[David Nieporent]

You are certainly right that your desperate attempt to invent new categories of people in order to rewrite a clear text is exasperating.

[M L]

The original meaning, as set forth in the ratification debates and other sources, is exasperating to those who support rewarding millions of illegal immigrants and birth tourists with citizenship.

[Bored Lawyer]

Right or wrong, lower courts are bound to follow SCOTUS precedent until SCOTUS speaks again. That's what happened here. The decision was "right" because of the binding nature of SCOTUS precedent and that these are inferior courts.

I doubt that SCOTUS will reverse, because it seems that the historical and legal arguments favor the position taken here. But whether you agree or not, lower courts cannot just ignore SCOTUS precedent.

[M L]

Wong Kim Ark dealt with legal immigrants and established business owners, who were permanently and legally domiciled in the U.S.

This is quite easily distinguished from illegal immigrants and temporary visitors, in my opinion. So I disagree with your comment. But the court agreed with you and you are accurately describing the basis of the opinion here.

[M L]

From WKA (emphasis added)

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution. . . .

. . . it is well to bear in mind the often-quoted words of Chief Justice Marshall: 'It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.'

[David Nieporent]

Again, why emphasize those words, rather than:

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China,

Why not conclude that the holding of WKA doesn't apply to the children of any nationality besides Chinese?

[M L]

That's easy - because we are talking about the citizenship clause of the United States constitution which deals with U.S. citizenship of immigrants to the U.S. The clause has nothing to do with China and doesn't distinguish among foreign countries of origin. This has been another episode of simple answers to stupid questions.

Next up, the court noted that Wong was born in the United States. But is that really relevant? Hard to say. Also that Wong was a child, i.e. a human person. Hm, I wonder what that's a about.

[M L]

.

[Patrick Henry, the 2nd]

Another set of judges ignore "under the jurisdiction of" because they love illegal immigrants and hate Americans.