Bannon's War Room - Episode 5263/5264: Historical Morning SCOTUS Hearing Arguments On Birthright Citizenship
Aired: 2026-04-01
Duration: 01:57:59


=== Birthright Citizenship Defined (02:22) ===

[00:00:00]  And so after the Civil War, the 14th Amendment was enacted principally to undo Dred Scott, meaning that enslaved people, their children, are citizens and will forevermore be citizens.
[00:00:13]  In fact, what the 14th Amendment says is that anyone born in this country or naturalized, right, and subject to the jurisdiction thereof are U.S. citizens.
[00:00:22]  And so the debate now is what does that phrase mean, subject to the jurisdiction of?
[00:00:29]  There's an 1898 Supreme Court case, Wong Kim Ark, that seems to answer the question.
[00:00:34]  The president and his team took another swing at it.
[00:00:37]  And so, to answer your question, why is this before the Supreme Court?
[00:00:42]  It's because the president issued an executive order on his first day in his second term, trying to undo what we think is the common understanding of the 14th Amendment.
[00:00:53]  And that's the problem I have with Donald Trump, because he doesn't give a damn about that.
[00:00:58]  He doesn't care about that because he wants to get his way.
[00:01:01]  And he wants to appease a very small sect of Americans who don't like.
[00:01:06]  Their fellow Americans.
[00:01:08]  And they don't like the people who are coming here because they don't look like them.
[00:01:12]  They don't sound like them.
[00:01:13]  They don't have their hair like them.
[00:01:15]  They don't talk like them.
[00:01:16]  They don't make the movements that they've defined as Americans.
[00:01:20]  So, if nothing else, the Supreme Court tomorrow, from where I see, can settle that piece.
[00:01:26]  That you were born here, you're an American citizen, regardless of your parents' status, regardless of your granddaddy's status, regardless of the color of your skin or where you're from.
[00:01:38]  That, to me, is an important aspect of this.
[00:01:40]  The flip side of that coin is what Donald Trump thinks, and I would love to get your thoughts.
[00:01:45]  When you look at those two pieces, Donald Trump thinks that his way to win the argument is to basically crap all over the judges.
[00:01:54]  Sometime this summer, a majority of the justices come back and say, We agree with Donald Trump.
[00:02:00]  How then are you able to prove you are a citizen in this country?
[00:02:04]  Because if he gets his way with this, a birth certificate won't be enough.
[00:02:09]  And then I juxtapose that with the Save Act.
[00:02:12]  They're saying you need a passport and a birth certificate.
[00:02:16]  How are people supposed to prove their citizenship in this country if being born here does not qualify?

=== The Deportation Coalition's Stance (05:20) ===

[00:02:22]  Right.
[00:02:23]  So, if your question is, could it be messy if the Supreme Court goes the other way?
[00:02:28]  Yeah, absolutely.
[00:02:30]  And most recently, Simone, in the tariffs case, without getting into sort of the nuts and bolts of it, the Supreme Court ruled one way but didn't quite explain how the remedy would work.
[00:02:41]  So, is this a proactive remedy, meaning only children subsequently born?
[00:02:46]  That's what the executive order seems to posit.
[00:02:50]  Is it a retroactive order, meaning it would apply to people already born in this country who we believe are citizens?
[00:02:58]  I doubt it.
[00:02:59]  That seems completely unworkable.
[00:03:01]  But in terms of fashioning a remedy if the Supreme Court rules contrary to our common understanding, you're right.
[00:03:09]  It could be messy.
[00:03:12]  It's Wednesday, the 1st of April, the year of our Lord 2026, a historic day.
[00:03:17]  We're going to go live to the Supreme Court.
[00:03:19]  The President of the United States, I think, in an unprecedented move, is at the court today.
[00:03:23]  He will listen to the oral arguments.
[00:03:24]  Mike Hell, Mike Davis will join me.
[00:03:26]  Neil McCabe is there.
[00:03:27]  Also, at 6 24 p.m. Eastern Daylight Time today, there's scheduled to be a launch of a live crew of astronauts on a journey to the moon.
[00:03:36]  And then at 9 p.m. tonight, the President will address the nation about his plans on the war in Iran.
[00:03:42]  So, a big news day.
[00:03:44]  Real America's Voice will be here all day covering it all, including special coverage at 9 o'clock tonight.
[00:03:50]  That'll go to 11 o'clock or midnight as circumstances dictate.
[00:03:55]  Let's go quickly to Neil McCabe at the.
[00:03:58]  Neil McCabe's outside the Supreme Court.
[00:04:00]  Neil, put us in the room.
[00:04:01]  We know the president has gotten to the building a few minutes ago.
[00:04:05]  What's going on?
[00:04:06]  And by the way, we're going to go to live coverage of the hearing.
[00:04:09]  It jerked back and forth between Mike Hal and Mike Davis for assessments.
[00:04:12]  Neil McCabe, what is going on outside?
[00:04:14]  Sounds like a festival.
[00:04:17]  Yeah, it's a carnival like atmosphere here outside the Supreme Court, Steve.
[00:04:22]  Mostly supporters of birthright citizenship, but there are a few people who are supporting the president's position that it is not soil.
[00:04:32]  But actually, your circumstances, your parents, and if you are under the jurisdiction of the United States, which is going to be the thrust of John Sowers' arguments today, he's the Solicitor General.
[00:04:43]  The line was forming early, early this morning for the open seats, and so it's like it's very, very exciting here.
[00:04:53]  Not a lot of back and forth.
[00:04:55]  The police haven't had to separate the sides or anything like that because it's so overwhelmingly for the birthright citizen position, they really know how to deliver a crowd, Steve.
[00:05:08]  Oh, yeah, of course.
[00:05:09]  Neil, just hang on for one second.
[00:05:11]  Stay right there outside the Supreme Court.
[00:05:13]  Mike Howe, huge day today.
[00:05:16]  Mass deportation coalition, huge story in Politico, if we can get that up.
[00:05:20]  And you actually launched your action plan on exquisite timing coming when the importance of this issue is so vital to this republic that the President of the United States, in an unprecedented move, goes to hear the oral arguments at the Supreme Court on this historic.
[00:05:38]  Case of around the 14th Amendment and birthright citizenship.
[00:05:42]  Talk to me your thoughts about that and the launch today of the mass deportation coalition.
[00:05:48]  Yeah, so the birthright citizenship case is absolutely huge.
[00:05:51]  It'll be one of the biggest legal victories I think we have seen in some time, should it be secured.
[00:05:56]  It's just common sense stuff.
[00:05:58]  Everyone's laughing in America for having a policy that people could just jump the border and have kids and then they're magically citizens.
[00:06:04]  And then it turns into millions and millions, and the U.S. doesn't even know how many, and they don't keep track.
[00:06:09]  And we're seeing China abuse it.
[00:06:11]  With birth tourism.
[00:06:12]  It is just really suicidal policy.
[00:06:15]  And I applaud President Trump for staying the course and going there today to try to see this one through.
[00:06:21]  So hopefully he gets that victory.
[00:06:22]  But from the Mass Deportation Coalition, our plans today are focused on rolling out this massive playbook we released this morning, which proves that a million deportations.
[00:06:33]  Mike, can you hang up?
[00:06:34]  Mike, Mike, Mike, can you hang up for one second?
[00:06:36]  I want to go live.
[00:06:37]  John Sauer is actually addressing the court.
[00:06:39]  Just hang up for one second.
[00:06:40]  Mike Howe, head of the Mass Deportation Coalition.
[00:06:42]  Let's go live, Supreme Court.
[00:06:44]  When Congress used the term not subject to any foreign power in the Civil Rights Act of 1866, it rejected the British conception of allegiance.
[00:06:52]  Senator Trumbull explained that subject to the jurisdiction thereof in the clause means not owing allegiance to anybody else.
[00:07:00]  And in 1884, this court recognized that subject to the jurisdiction means owing direct and immediate allegiance.
[00:07:07]  The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens.
[00:07:13]  Unlike the newly freed slaves, those visitors lacked.
[00:07:16]  Direct and immediate allegiance to the United States.
[00:07:19]  For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile.
[00:07:28]  For decades following the clause's adoption, commentators recognize that the children of temporary visitors are not citizens, and illegal aliens lack the legal capacity to establish domicile here.

=== State Citizenship and Jurisdiction (08:00) ===

[00:07:42]  Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations.
[00:07:48]  It demeans the priceless and profound gift of American citizenship.
[00:07:52]  It operates as a powerful pull factor for illegal immigration.
[00:07:56]  And rewards illegal aliens who not only violate the immigration laws but also jump in front of those who follow the rules.
[00:08:03]  It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States.
[00:08:19]  I welcome the court's questions.
[00:08:21]  General Sauer, before we get into the broader national issues, Would you start with Dred Scott?
[00:08:30]  Dred Scott was a case about state citizenship.
[00:08:34]  It was a diversity case.
[00:08:38]  And of course, we know what Chief Justice Taney did with that.
[00:08:44]  How does the citizenship clause respond specifically to Dred Scott and answers or changes or corrects?
[00:08:57]  Its answer as to citizenship.
[00:08:59]  The other point is the citizenship clause refers not just to national citizenship but also to state citizenship.
[00:09:10]  Are we to have two different definitions for those?
[00:09:15]  It is one word citizens of the United States and citizens of the state wherein they reside.
[00:09:24]  So, as you begin, I would like you to go back at the beginning and be more specific about the answer.
[00:09:31]  And I want you to explain whether or not those two definitions are the same or related, and what state citizenship is based on.
[00:09:44]  Thank you, Justice Thomas.
[00:09:45]  I'll maybe start by addressing Dred Scott.
[00:09:48]  As you alluded to the fact, Dred Scott imposed one of the worst injustices in the history of this court, and it led to the outbreak of the Civil War.
[00:09:57]  It's very clear, and this court, in all of its early cases interpreting the 14th Amendment, said, The one pervading purpose, the main object of the citizenship clause is to overrule Dred Scott and establish the citizenship of the freed slaves.
[00:10:10]  If you look at the debates in the congressional record and discussion surrounding the adoption of the citizenship clause, what you see is a very clear understanding that the newly freed slaves and their children have a relationship of domicile.
[00:10:23]  They do not have a relationship to any foreign power, for example.
[00:10:26]  There's a comment where he says, Look, people have been here for five generations and clearly have no relationships to any foreign African potentate.
[00:10:34]  Have a relationship of allegiance to the United States.
[00:10:36]  And that reinforces our point that allegiance is what the word jurisdiction means.
[00:10:40]  It doesn't mean regulatory jurisdiction or sort of being merely subject to the laws.
[00:10:46]  They're talking and they're thinking about it in those debates about allegiance.
[00:10:50]  Now, as to your second question, if you look at the text of the clause, we believe it says, born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and the states of which they reside.
[00:11:03]  So there's a constitutional guarantee that applies to both.
[00:11:06]  Federal or national and state citizenship.
[00:11:09]  And the key point we make there is that that word reside, if you look at, for example, section 1473 of Justice Story's commentaries, was understood to mean domicile.
[00:11:18]  So when they say subject to the jurisdiction, and then they go on to say you're a citizen of the United States and the state in which they reside, the very text of the clause itself presupposes that the citizen is domiciled in the United States.
[00:11:30]  If they're present in a state at all, they reside there.
[00:11:33]  Reside means domicile in the Constitution.
[00:11:35]  And we think that strongly supports our interpretation.
[00:11:37]  It's textual evidence.
[00:11:38]  Of our domicile based theory of jurisdiction?
[00:11:41]  Well, starting with that theory, you obviously put a lot of weight on subject to the jurisdiction thereof.
[00:11:48]  But the examples you give to support that strike me as very quirky, you know, children of ambassadors.
[00:11:55]  Children of enemies during a hostile invasion, children on warships, and then you expand it to the whole class of illegal aliens are here in the country.
[00:12:08]  I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.
[00:12:15]  There are those sort of narrow exceptions for ambassador foreign public ships.
[00:12:18]  Tribal Indians is an enormous one that they were very focused on in the debates as well.
[00:12:22]  But what I do is I invite the court to look at the intervening step.
[00:12:25]  Which is the enactment of the Civil Rights Act of 1866.
[00:12:29]  And there they didn't say subject to the jurisdiction thereof.
[00:12:31]  There it says not subject to any foreign power.
[00:12:34]  Now, if you go back to Blackstone and Calvin's case, they say it does not matter if you are subject to any foreign power.
[00:12:40]  If you are born in the king's domains, you have this indefeasible duty of allegiance to the king at any time.
[00:12:46]  So there's a clear repudiation in the Civil Rights Act.
[00:12:49]  The Civil Rights Act is this breakwater which makes it very, very clear that they are not thinking about allegiance in the terms of like the British common law.
[00:12:56]  They've adopted the Republican conception of allegiance.
[00:12:59]  So it's from not subject to any foreign power, and then the debates just a couple months later make it very clear that they're recodifying the same conception.
[00:13:06]  They were dissatisfied with the potential ambiguity in the phrase Indians not taxed, and they adopted subject to the jurisdiction thereof.
[00:13:13]  And one of the strongest statements of this is Senator Trumbull's statement that I quoted at the beginning, where he says, he's asked, what does that mean, subject to the jurisdiction thereof?
[00:13:20]  And he says, it means not owing allegiance to anybody else.
[00:13:23]  That is what it means.
[00:13:24]  And this court picked up on that in Elk against Wilkins when it says, it uses, you know, completely subject to the political jurisdiction, not merit regulatory jurisdiction.
[00:13:35]  What do you do with Wong Kim Ark's quote of Daniel Webster, who said, independently of a residence, with intention to continue such residence, independently of any domiciliation, independently of the taking of any oath of allegiance, or renouncing any former allegiance, it is well known that by the public law, a non citizen,
[00:14:03]  while he is here in the United States, Owes obedience to this country's laws.
[00:14:09]  Now, the examples that Wong Arkim used as exceptions are situations in which there was not temporary allegiance to the United States.
[00:14:23]  The children of foreign diplomats, whose only allegiance was to their foreign country, andor occupied territory residents, including those citizens in Maine.
[00:14:38]  Who had been occupied by the British forces.
[00:14:41]  The U.S. had no control over them.
[00:14:44]  And the whole theory of the Indian tribes was similar.
[00:14:47]  The Indian tribes were analogized to foreign diplomats.
[00:14:52]  So, what do we do with that?
[00:14:54]  I'd say two things.
[00:14:55]  First, as the Indian tribes, we think that's a case that strongly supports us, because, of course, by 1866 and 1868, there was strong understanding that the Indian tribes were subject to the United States as regulatory jurisdiction.
[00:15:06]  But not the same way that temporary foreigners were.
[00:15:10]  Meaning, there was a real debate going on whether the U.S. actually had jurisdiction over Indian tribes.
[00:15:18]  That's why our cases, for the longest time until that was finally settled, said absence of act of Congress, there is, our laws don't apply, U.S. laws don't apply to Indians on Indian lands, correct?
[00:15:35]  I believe you look at the Rogers decision, for example, that we cite in our brief, where they say that they are subject to the.
[00:15:41]  That's later.

=== Illegal Immigration Exceptions (16:13) ===

[00:15:42]  I'm talking at the time.
[00:15:44]  Yes, at the time.
[00:15:45]  So, as of 1876.
[00:15:46]  So, what do you do during the debates of the 1866 Civil Rights Act and of the 14th Amendment?
[00:15:53]  With the entire discussion of the people who opposed the amendment, Who kept saying we can't pass it because we're making citizens of gypsies who have no allegiance to anybody, and we're not going to make citizens of Chinese people who can't be citizens because we're not going to permit them to be citizens?
[00:16:11]  What do we do with those debates and the fact that the proponents of both acts said everyone who's born in the U.S. will be citizens?
[00:16:23]  First, as that particular exchange, page 2890 of the congressional record from 1866, Senator Cowan gives this virulently racist statement.
[00:16:31]  Where he says that.
[00:16:32]  And what does he say right at the beginning of that sort of offensive speech?
[00:16:35]  He says, We can't have children of gypsies, children of Chinese immigrants, we can't have them become citizens.
[00:16:40]  And he says, Have they any more rights than a sojourner in the United States?
[00:16:44]  So he's trying to persuade the Republicans to his view by appealing to a common understanding that sojourners do not have children who become citizens.
[00:16:53]  So there's powerful evidence there that everybody understood this to not sweep in the temporary sojourner.
[00:17:00]  40, 50 years, you see every commentator who addresses the specific question of temporary presence saying it's not covered by the clause, including for decades after Wong Kim Ark.
[00:17:10]  General, can I take you back to the Chief Justice's question about the specific exceptions to birthright citizenship that everybody seems to agree were recognized under the common law?
[00:17:23]  And it brings up an important principle about how we interpret the law.
[00:17:30]  When particular problems pop up, lawmakers May enact a general rule.
[00:17:37]  When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule?
[00:17:50]  Or do we say they adopted a general rule, they meant for that to apply to later applications that might come up?
[00:17:59]  Justice Scalia had an example that dealt with this situation.
[00:18:03]  He imagined an old theft statute.
[00:18:08]  That was enacted well before anybody conceived of a microwave oven.
[00:18:12]  And then afterwards, someone is charged with the crime of stealing a microwave oven.
[00:18:17]  And this fellow says, Well, I can't be convicted under this because the microwave oven didn't exist at that time.
[00:18:24]  And he dismissed that.
[00:18:26]  There's a general rule there, and you apply it to future applications.
[00:18:30]  And what we're dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration.
[00:18:39]  So, how do we deal with that situation when we have a general rule?
[00:18:42]  Yeah, I strongly agree with the way that you framed it, that there is a general principle that's a broad principle that's adopted in the phrase, subject to the jurisdiction thereof.
[00:18:49]  And we submit that our theory of allegiance and domicile based allegiance is what explains those specific exceptions that everybody was aware of, but it is broad enough to sweep in future situations.
[00:18:59]  And as you pointed out, illegal immigration did not exist then.
[00:19:01]  Now, the problem of temporary visitors did exist.
[00:19:04]  And it's very interesting that as you look at pages 26 and 28 of our brief, commentators going from 1881 until 1922 are uniformly saying the children of temporary visitors are not included.
[00:19:16]  Now, that logic, we say, naturally extends.
[00:19:19]  It's really an a for sure case.
[00:19:20]  If you, as someone who enters illegally, by the 1880s, there are restrictions on immigration.
[00:19:25]  If you've entered illegally, it's kind of a well established principle of law going back to the Code of Justinian that says you're not allowed to be there.
[00:19:33]  You don't have the legal capacity to create domicile there.
[00:19:35]  But I think, General Sauer, that what you just said suggests that you can't be arguing in the way Justice Alito suggests because most of your brief is not about illegal aliens.
[00:19:47]  Most of your brief.
[00:19:48]  Is about people who are just temporarily in the country where there was quite clearly.
[00:19:54]  An experience of, an understanding of, that there were going to be temporary inhabitants.
[00:20:00]  And your whole theory of the case is built on that group.
[00:20:04]  You don't get to talking about undocumented persons until quite later and at much lesser, you know, I think it's like 10 pages to three pages or something like that.
[00:20:15]  So you can't really be going with Justice Alito's theory.
[00:20:18]  You must be saying that there is a principle that developed, that was there in.
[00:20:26]  At the time of the 14th Amendment, isn't that right?
[00:20:29]  We agree there's a principle there at the 14th Amendment.
[00:20:32]  It is the jurisdiction, means allegiance.
[00:20:34]  The allegiance of a, and this is very strongly reflected in the 19th century sources, the allegiance of an alien president in another country is determined by domicile.
[00:20:44]  And that goes back to the Venus and the Pizarro.
[00:20:46]  It goes through the Katza affair in 1853.
[00:20:48]  It comes right up to Fong Yui Ting and Lao Al Bu that are decided shortly before Wong Kim Ark.
[00:20:56]  So that's the principle.
[00:20:57]  That principle clearly applies here.
[00:20:58]  I also respectfully disagree with that.
[00:21:00]  Yeah, and I guess, Mr. General Sauer, you know, where does this principle come from?
[00:21:06]  Allegiance, domicile.
[00:21:11]  Allegiance, I think you point to a Lincoln funeral speech as your primary example of where this principle comes from.
[00:21:18]  It's certainly not what we think of when we think of the word jurisdiction, and I appreciate that jurisdiction has many meanings, but, you know, the first meaning is like, If you're subject to jurisdiction, you're subject to the authority of.
[00:21:32]  One doesn't say, oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does.
[00:21:39]  So the text of the clause, I think, does not support you.
[00:21:43]  I think you're sort of looking for some more technical, esoteric meaning.
[00:21:48]  And then the question comes okay, if the text doesn't support you, if there's a real history of people using it that way, but as far as I can tell, you know, at the time of the 14th, you're.
[00:22:00]  You're using some pretty obscure sources to get to this concept.
[00:22:06]  Well, take it straight from the framers' mouths.
[00:22:08]  So, for example, Senator Trumbull was asked, What does jurisdiction mean?
[00:22:12]  He means subject to jurisdiction.
[00:22:14]  He said, What does that mean?
[00:22:15]  He says it means not owing allegiance to anybody else.
[00:22:18]  He is the principal framer of the Civil Rights Act of 1866.
[00:22:22]  Representative Biggum, who's the framer of the 14th Amendment, is asked, What does it mean in the congressional record on page 1291?
[00:22:28]  He says, Within the jurisdiction of the United States of parents not owing allegiance.
[00:22:33]  To any foreign sovereignty.
[00:22:34]  And we've cited many, many examples where the congressional debates reflect that.
[00:22:38]  Then you referred to the oration of George Bancroft.
[00:22:40]  That's one of probably 16 sources, but there's at least 13, counting that one in the 12 treaties as we cite it, pages 26 to 28 of our brief.
[00:22:48]  There is over a dozen sources that specifically address temporary sojourners.
[00:22:53]  In the five decades after the enactment of the amendment, every single one of them says, well, temporary sojourners, their children are not included, including for two decades after Wong Kim Ark.
[00:23:03]  So if domiciles, Key linchpin to your argument, and I take it that it is.
[00:23:10]  Do we look at how domicile was understood in 1868, or do we look at it how it's understood today in the context of the INA?
[00:23:20]  The 1868 understanding, I'm not aware of a strong difference between those.
[00:23:24]  Well, here's where I'm going with it.
[00:23:25]  I'm just working within your argument for a moment.
[00:23:30]  Today, you can point to laws against immigration that are much more restrictive than they were in 1868.
[00:23:38]  We really didn't have laws like that.
[00:23:40]  That we do today until maybe 1880.
[00:23:43]  So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to anything.
[00:23:53]  Any immigration laws.
[00:23:54]  There they were.
[00:23:55]  And so, why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial?
[00:24:05]  I would first cite Wong Kim Ark on that point because Wong Kim Ark says you're.
[00:24:09]  Well, I'm not sure how much you want to rely on Wong Kim Ark.
[00:24:12]  But there is a statement in there that says, so long as they are permitted to be here.
[00:24:16]  So, Wong Kim Ark, keep in mind that by the time they decide Wong Kim Ark in 1898.
[00:24:20]  I know, but that's 1898.
[00:24:22]  Now I'm looking at 1868, you're telling me is when I should look, and the test for domicile.
[00:24:27]  And the stuff you have about unlawfully present is like Roman law sources you're going to.
[00:24:33]  First and second restatements as well, and decisions of this court go back.
[00:24:38]  So it wouldn't be the INA that would control whether you're capable of having domicile.
[00:24:43]  It would be whatever the law was in 1868.
[00:24:46]  Well, I think that this is addressed by my exchange with Justice Alito from earlier, which is that this concept, jurisdiction, baking in allegiance and domicile, would continually restrict who may lawfully be present.
[00:25:00]  More and more, and you would say that would be incorporated into it, even though you're telling us to apply the original meaning of 1868.
[00:25:07]  The original meaning of domicile.
[00:25:08]  And so the question is is there any argument that the framers intended to preclude Congress from dictating who can and who cannot establish a lawful domicile here?
[00:25:16]  I don't see any evidence of that in the congressional record, so it's a natural extension.
[00:25:20]  Whose domicile matters?
[00:25:22]  I mean, it's not the child, obviously.
[00:25:24]  It's the parents you'd have us focus on.
[00:25:27]  And, you know, what if, is it the husband?
[00:25:30]  Is it the wife?
[00:25:31]  What if they're unmarried?
[00:25:32]  Whose domicile?
[00:25:33]  Well, in the executive order, it draws a distinction between the mother and the father.
[00:25:37]  That's really the mother's domicile.
[00:25:39]  I think that would matter.
[00:25:40]  Well, but 1868 matters, you're telling us.
[00:25:42]  So what's the answer?
[00:25:44]  The 1868 sources talk about parental.
[00:25:46]  I'm not aware of them drawing a distinction between mother or father, but they say the domicile of the child follows the domicile of the parents.
[00:25:52]  And how are we going to determine domicile?
[00:25:54]  I mean, would we use contemporary sources on what qualifies as domicile in a state, or do we look in 1868?
[00:26:01]  And do we have to do this for every single person?
[00:26:03]  And again, I don't see a strong distinction between those because, of course, domicile is a high level concept that has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently.
[00:26:12]  That domicile, when you've come to a new nation, you say, I'm here to stay, you become part of their political community, and you become akin to a citizen.
[00:26:20]  And that's reflected very strongly in the case I cited before.
[00:26:23]  And just to circle back to Justice Kagan's point, it's striking that in none of the debates do we have parents discussed.
[00:26:31]  We have the child's citizenship, and the focus of the clauses on the child, not on the parents.
[00:26:38]  And you don't see domicile mentioned in the debates.
[00:26:42]  The absence is striking.
[00:26:43]  I think the 19th century sources would say a child, a newborn child, lacks the capacity to form a domicile, so they're imputed the domicile of their parents.
[00:26:50]  So I don't think they would have seen a distinction between children and parents.
[00:26:53]  And I point out that their position, like ours, is forced to look at the domicile of the parents because if you look at the exceptions that they accept, like tribal Indians and so forth.
[00:27:01]  I'm talking about in the debates over the 14th Amendment and the Civil Rights Act, it's striking that these concepts aren't discussed in them.
[00:27:11]  I think domicile is discussed.
[00:27:13]  I mean, it's brought up in many.
[00:27:15]  Allegiance, jurisdiction, complete jurisdiction.
[00:27:19]  Well, I mean, here's just a few examples.
[00:27:21]  Page 1679 of the Congressional Record President Johnson vetoes the first version of the Civil Rights Act, and he says, I can't sign this because it would extend citizenship to the children of, quote, all domiciled aliens and foreigners, even if not naturalized.
[00:27:35]  And you have all the other sources that we cited that say, and this is a deeply rooted 19th century understanding.
[00:27:40]  It's reflected in the Venus.
[00:27:42]  Reflected in the Bizarro in 1814 and 1817.
[00:27:45]  It carries through the 19th century, and this court is talking about it in 1892 and 1893 when it's discussing the Chinese Exclusion Acts.
[00:27:52]  Domicile is the key.
[00:27:54]  Concept that creates allegiance.
[00:27:56]  That's a general.
[00:27:57]  So, you said in your reply brief that the children of slaves who were brought here unlawfully, you know, in defiance of laws forbidding the slave trade, would in fact be citizens.
[00:28:13]  And you can imagine that their parents were not only brought here in violation of United States law, but were here against their will, and so maybe felt allegiance to the countries where they were from.
[00:28:23]  And you say that the purpose of the 14th Amendment was to put all slaves on equal terms.
[00:28:27]  Equal footing, newly freed slaves on equal footing, and so they would be citizens.
[00:28:32]  But that's not textual.
[00:28:33]  So, how do you get there?
[00:28:34]  You say it in just a few sentences, so can you elaborate?
[00:28:37]  Sure.
[00:28:38]  I think if you look at the 19th century sources, what you see is that even though their entry may have been unlawful, 19th century antebellum law never treated their presence as unlawful.
[00:28:46]  In fact, quite the opposite.
[00:28:47]  One of the Amici, in fact, points like a Mississippi statute, which probably is replicated throughout the South before the Civil War, that says slaves in Mississippi have an indefeasible domicile.
[00:28:58]  In Mississippi.
[00:28:59]  In other words, even if they run away, if they get away, Mississippi says, nope, you still live here.
[00:29:04]  Right?
[00:29:04]  And so it would be astonishing, in other words, for the opponents of the 14th Amendment to say, oh, you know, these people were not domiciled and therefore it goes the other way.
[00:29:11]  Because actually, U.S. law, even if they were brought in illegally through an illegal slave trade, once they were there by the 14th Amendment.
[00:29:19]  Well, their intent is to return as soon as they can, let's say.
[00:29:22]  So they're here, they're resident, and maybe under your theory, I mean, which says, well, lawfulness for a different purpose, but they're here, they're resident, let's Take your assumption that they're not here unlawfully.
[00:29:32]  But let's say they don't have an intent to stay.
[00:29:34]  They want to escape and go back the second they can.
[00:29:36]  Are they domiciled?
[00:29:38]  Under the 19th century law, I mean, I think this is the flip side of the hypothetical that we talked about earlier.
[00:29:43]  Under 19th century law, they are treated as domiciled in the United States.
[00:29:46]  So it would be astonishing.
[00:29:47]  And the debates in the Congressional floor talk about not this specific case, but they say, look, slaves who have been forced to come here and have been here are lawfully domiciled here.
[00:29:56]  I mean, they don't use the ways domiciled, but like they have, they use allegiance.
[00:29:59]  They say they don't have allegiance to, once they've been forced to come here, they don't have allegiance to any foreign or African.
[00:30:05]  Potentate and therefore they're.
[00:30:07]  But how would that apply to the children of illegally trafficked people today?
[00:30:12]  Would the same reasoning apply?
[00:30:14]  It would turn on whether the parents are lawfully domiciled in the United States.
[00:30:20]  So if they're brought in illegally, but then they choose to remain and they want to remain and they're domiciled, you would say that their lawful presence is not dictated by whether they were brought here lawfully or not.
[00:30:32]  And that's different from someone who, say, crosses the border unlawfully.
[00:30:36]  Yeah, I think it would turn on whether their presence is lawful.
[00:30:38]  General, in other words, obviously there may be many other important things that could be done to assist people like that.
[00:30:44]  The question is if they give birth to someone in the United States, that person naturally is a citizen, that would turn, based on the original public meaning of the clause, on the lawfulness of their presence.
[00:30:53]  Are they domiciled?
[00:30:54]  General, can I ask you a question?
[00:30:56]  To follow up on what Justice Gorsuch was exploring with you with respect to domicile, did I understand you to say that domicile is going to be eventually or is controlled by Congress?
[00:31:09]  Who is domiciled?
[00:31:10]  I'm struggling to figure out who is domiciled in your argument.
[00:31:14]  The domiciliaries are people who are lawfully present and have an intent to remain permanently.
[00:31:18]  So that's a kind of black letter understanding of domicile.
[00:31:21]  Now, Congress can dictate that certain classes of people, legal entrants and so forth, cannot lawfully, lack the legal capacity to form a legally binding domicile.
[00:31:30]  But if that's so, then doesn't it make the domicile for the purpose of the 14th Amendment turn then ultimately on Congress's will in a way?
[00:31:40]  That the framers did not intend.
[00:31:42]  I mean, my understanding was the framers put this citizenship clause into the Constitution to prevent future Congresses from being able to affect citizenship in this way.

=== Understanding Domicile Requirements (02:16) ===

[00:31:57]  Very briefly, no, I don't think so, because it is up to the alien whether or not they want to be domiciled here.
[00:32:05]  Now, there may be a couple of other things.
[00:32:06]  But I thought you just said Congress can make determinations as to who counts as being domiciled here.
[00:32:13]  So if that's true, then it ultimately would impact, in your theory, whether or not this person can claim that they have citizenship for 14th Amendment purposes based on Congress's determination.
[00:32:26]  And I just thought that's what the 14th Amendment was trying to get away from.
[00:32:31]  If I may.
[00:32:31]  Yes, please.
[00:32:33]  Very briefly, I just point you to the discussion in Professor Warman's Amicus brief where he talks about this is not a new problem.
[00:32:40]  Going back even to the British common law, there's a situation of people who lack a safe conduct and are passing through the king's domains without permission.
[00:32:47]  And he says the best reading of the common law is they are not under the protection of the king and they're not covered by the rule of birthright citizenship.
[00:32:53]  Thank you, counsel.
[00:32:55]  You mentioned in your briefing and also this morning the problem of birth tourism.
[00:33:02]  Do you have any information about?
[00:33:04]  How common that is or how significant a problem it is?
[00:33:09]  It's a great question.
[00:33:10]  No one knows for sure.
[00:33:11]  There's a March 9th letter from a number of members of Congress to DHS saying, Do we have any information about this?
[00:33:18]  The media reports indicate estimates could be over a million or 1.5 million from the People's Republic of China alone.
[00:33:25]  The congressional report that we cite in our brief talks about certain hotspots like Russian elites coming to Miami through these tourism companies.
[00:33:33]  And I mean, here's a fact about it that I think is striking.
[00:33:37]  Media reported as early as 2015 that, based on Chinese media reports, there are 500, 500 birth tourism companies in the People's Republic of China whose business is to bring people here to give birth and return to that nation.
[00:33:53]  Analysis before us?
[00:33:54]  I think it's, I'd quote what Justice Kalia said in his Hamdan dissent, where they have, where like their interpretation has these implications that could not possibly have been approved by the 19th century framers of this amendment.
[00:34:07]  I think that.
[00:34:09]  Shows that they've made a mess, their interpretation has made a mess of the provision.

=== Revising Historical Precedents (09:38) ===

[00:34:12]  Well, it certainly wasn't a problem in the 19th century.
[00:34:15]  No, but of course, we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a child who's a U.S. citizen.
[00:34:24]  Well, it's a new world.
[00:34:24]  It's the same Constitution.
[00:34:27]  It is.
[00:34:28]  And as Justice Scalia said, I think in the case that Justice Alito was referring to, you've got a constitutional provision that addresses certain evils and it should be extended to reasonably comparable evils.
[00:34:38]  He said that about statutory interpretation.
[00:34:40]  I think the same principle applies here, and I think we quote that in our brief.
[00:34:43]  Thank you.
[00:34:43]  Justice Thomas, anything further?
[00:34:45]  General, you're getting a lot of questions about immigration, and they harken back, of course, to the citizenship, which is defined in or set out in the 14th Amendment.
[00:34:58]  How much of the debates around the 14th Amendment had anything to do with immigration?
[00:35:07]  I think that the principal focus of those debates has to do really not with immigrants, but with the Indian tribes.
[00:35:14]  I mean, obviously, the main goal, the one pervading purpose, as this court said in the slaughterhouse cases, was to establish the citizenship of the freed slaves and their children, but they were very concerned about the problem of something that they all accepted as a given, which is that the children of tribal Indians are not within the rule of birthright citizenship.
[00:35:34]  So I think that's what they focus on.
[00:35:40]  And we draw an analogy to that, too, the issue of temporary sojourners.
[00:35:44]  But there are mentions of temporary sojourning multiple places in.
[00:35:51]  And there was Justice Sotomayor brought up Wong King.
[00:35:58]  There was no question in that case about domicile, was there?
[00:36:04]  I disagree.
[00:36:06]  The court says at the very beginning of its opinion here are the accepted facts.
[00:36:09]  These are lawfully domiciled here.
[00:36:11]  When it states the question presented, it talks about domicile.
[00:36:14]  When it recites the legal principle at page 693, it says domicile three times.
[00:36:18]  And at page 705, at the end of the opinion, it says here's the single question we've decided.
[00:36:22]  We've decided that Chinese immigrants with a permanent domicile and residence here are fall within the rule of birthright citizenship.
[00:36:30]  Justice Alito?
[00:36:32]  Under the minimum definition of domicile, which I think existed in 1868 and continues to exist today, a person's domicile is the place where he or she intends to make a permanent home.
[00:36:49]  Now, normally you would think that a person who is subject to arrest at any time and removal could not establish a domicile, but we have an unusual situation.
[00:37:02]  Here, because our immigration laws have been ineffectively and in some instances unenthusiastically enforced by federal officials.
[00:37:17]  So, there are people who are subject to removal at any time if they are apprehended and they go through the proper procedures, but they have in their minds.
[00:37:33]  Made a permanent home here and have established roots.
[00:37:38]  And that raises a humanitarian problem.
[00:37:40]  And I wonder if you could address that.
[00:37:44]  If I may, one legal and one humanitarian.
[00:37:46]  The legal point is if you look at those cases, for example, Carson against Reed, Park against Barr, this court's decisions in Elkins and Toll against Marino, they talk about the legal capacity to create a domicile, excluding someone who may have the subjective intent, which otherwise would be determinative.
[00:38:03]  As being excluded.
[00:38:04]  On the humanitarian point, I would point out, as I said at the beginning, Justice Alito, that the United States rule of nearly unrestricted birthright citizenship is an outlier among modern nations.
[00:38:14]  It's a very small minority of nations that have that rule.
[00:38:17]  For example, every nation in Europe has a different rule.
[00:38:22]  And the notion that they have a huge humanitarian crisis as a result of not having unrestricted birthright citizenship, I don't think is a strong argument.
[00:38:29]  And I point out, obviously, for reliance related reasons, this executive order applies only prospectively.
[00:38:36]  And we ask the court to rule.
[00:38:38]  Only prospectively.
[00:38:40]  Justice Sotomayor?
[00:38:43]  I agree with you what the European nation's rule is, but England was always different, wasn't it?
[00:38:51]  Not until 1983 it changed.
[00:38:54]  That's not quite true.
[00:38:55]  The Wong Kim Ark does a wonderful job of laying out the English rule, and you claim it was different, but there isn't any treatises or scholars who say it's different.
[00:39:09]  English rule was always by birth, other people were not by birth.
[00:39:13]  Other countries were not by birth.
[00:39:15]  Let me just go to the implications of what you're asking us to do.
[00:39:20]  You are asking us to overrule Wang Kim Ark?
[00:39:25]  Well, there, Wang Kim Ark's parents were domiciled in the U.S., but they owed loyalty to China.
[00:39:33]  They eventually returned to China.
[00:39:36]  So they didn't have a primary allegiance to the United States.
[00:39:41]  So you're not asking that.
[00:39:43]  Are you asking us to overrule then?
[00:39:47]  Our cases, one of which said that a child of illegal aliens. Could be, was a citizen.
[00:40:00]  You're asking us to overrule that.
[00:40:02]  No, first of all, we're not asking you over to rule Wong Kim Ark.
[00:40:06]  We agree with the ruling of Wong Kim Ark in much of the reasoning.
[00:40:09]  And then, as to those later cases starting in 1966, where the court makes sort of unreasoned references to this issue, we.
[00:40:16]  Wait, I'm going to thin top you loose.
[00:40:18]  The respondent unlawfully overstayed her visa and gave birth to a child here.
[00:40:24]  The court, Harlan II, wrote the child is, of course, an American citizen.
[00:40:29]  That person wasn't domiciled here lawfully.
[00:40:33]  So you're asking us to overrule that case?
[00:40:35]  I wouldn't say we're asking you to overrule.
[00:40:37]  We think that's similar to a drive by jurisdictional ruling where there's a simple statement that's not debated, there's no further analysis of it.
[00:40:43]  There's really an assumption there, and we think that's similar to cases where the court just assumes jurisdiction without disclosure.
[00:40:48]  When we ruled in trends that Indians could not become citizens, the government then after began to unnaturalize many Indians who had been sworn in as citizens.
[00:41:02]  You asked us to concentrate only on the prospective nature of the citizens' order.
[00:41:09]  But the logic of your position, if accepted, is that this president or the next president or a Congress or someone else could decide that it shouldn't be prospective.
[00:41:23]  There would be nothing limiting that, according to your theory.
[00:41:27]  If, as we ask, the court confines its ruling to prospective relief only, which it didn't say.
[00:41:32]  No, I'm saying to you, don't, yeah, that's what you're asking us for relief right now.
[00:41:36]  I'm asking whether the logic of your theory would permit what happened after the court's decision in Trin, that the government could move to unnaturalize people who were born here of illegal residence.
[00:41:56]  No, we believe the court should do what it did in Sessions against Morales Santana, where there was a ruling that would have deprived people who were already citizens of citizenship, and the court said this applies prospectively only, and we think that's the appropriate course here.
[00:42:09]  But that's not what we did in Trin.
[00:42:12]  We think the sessions provides the proper course here, and that's what we're asking.
[00:42:16]  We are not asking for any retroactive relief.
[00:42:19]  Justice Kagan?
[00:42:22]  General, I think even your brief concedes that the position you're taking now is a revisionist one with respect to a substantial part of our history.
[00:42:34]  And I think that that's in large part because of Wamkim Ark and the way people have read that case, which of course was in the late 19th century.
[00:42:44]  And have read it ever since then.
[00:42:46]  And what that case suggests is I mean, there's a very clear rationale.
[00:42:51]  You say, oh, it says the word domicile a bunch of times, which it does.
[00:42:55]  It's a long opinion, it says a lot of things.
[00:42:58]  But the rationale of the case is really quite clear.
[00:43:01]  It says there was this common law tradition, it came from England, we know what it was.
[00:43:07]  Everybody got citizenship by birth except for a few discrete categories, which were the ones that the Chief Justice mentioned at the beginning.
[00:43:15]  And that tradition carried over to the United States, and then what the 14th Amendment did was accept that tradition and not attempt to place any limitations on it.
[00:43:28]  And so that was the clear rationale, a clear rationale that is diametrically different from your rationale.
[00:43:35]  And everybody took Wonkham Ark to say that and to say that as a result of that, of course, birthright citizenship was the rule.
[00:43:44]  And I think everybody has believed that for a Long, long time.
[00:43:48]  And I guess my question is this.

=== Tribal Indian Exclusions (04:36) ===

[00:43:52]  You have a story about what.
[00:43:54]  About the reasons why we should go back to what you view as the original meaning.
[00:43:59]  And given the long history of this country's understanding about birthright citizenship, what would it take?
[00:44:08]  What do you think it should take to accept that story in terms of the magnitude of the evidence that we would need to see in order to accept this revisionist theory and in order to change what I think people have thought?
[00:44:26]  The rule was for more than a century.
[00:44:30]  Let me make two points in response to that one historical and one legal.
[00:44:33]  Historical point I disagree with the way you've characterized the understanding of Wong Kim Ark, and I point to something that's emphasized in there in Miki's briefs, which is in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a law review article in 1921 where he says, I think the children of temporary visitors.
[00:44:57]  Should be citizens.
[00:44:58]  But he admits that is not the understanding of Juan Camarque.
[00:45:01]  He admits Juan Camarque did not hold that.
[00:45:03]  And he admits that there's an array of authorities that go against him.
[00:45:06]  He talks about careful and reliable, high authorities.
[00:45:09]  And that's referring to the consensus that we point out in pages 26-28 of our brief.
[00:45:13]  We've got 12 treatises from 1881 to 1922 that all say, including for decades after Juan Camarque, that say children of temporary sojourners are not included.
[00:45:22]  What happens between 1921 and the 1930s?
[00:45:25]  Well, Mr. Flournoy became a senior State Department official and he adopted that as the policy.
[00:45:29]  Of the Roosevelt administration.
[00:45:31]  So their argument is basically saying there wasn't this consensus going back to 1898.
[00:45:35]  The consensus, as their own author admits, goes entirely in the opposite direction.
[00:45:39]  For 50 years, right, for 50 years from the framing of the clause through the 1920s, maybe 60 years, the general understanding when it comes to what's at issue here and was not at issue in Wong Kimark is the children of temporary visitors do not become citizens under the clause.
[00:45:55]  And then the legal point you referred to the sort of concept of temporary local allegiance, and they rely on the schooner exchange, this theory that.
[00:46:02]  You've got temporary local allegiance.
[00:46:04]  But if you actually look at page 572 of the Congressional Record, right at the beginning, introducing the Civil Rights Act, Senator Trumbull says, I said not subject to any foreign power.
[00:46:14]  I wanted to say born in the United States and owing allegiance to the United States, but I was aware that there's a quote, a sort of allegiance from persons temporarily resident in the United States whom we have no right to make citizens.
[00:46:28]  So Senator Trumbull says, the reason I haven't adopted the language and meaning that they say should be packed into these provisions is that everybody knows.
[00:46:36]  That the children of temporary visitors should not be citizens.
[00:46:39]  Thank you, General.
[00:46:42]  Just to follow up on that point, General, one interesting counterpoint about the understanding of Wang Kim Arc that followed with respect to temporary sojourners.
[00:46:51]  And I take your well taken points.
[00:46:55]  But there was, of course, John Marshall Harlan, the great dissenter, who descended in Wang Kim Arc and later gave a bunch of lectures.
[00:47:05]  And he posed the question about the sojourners.
[00:47:08]  But suppose an English father and mother went down to the hot springs to get rid of the gout, and while there they have a child, now back in England.
[00:47:17]  Is that child a citizen of the United States, born of the jurisdiction thereof by mere accident of birth?
[00:47:23]  And he says, under one K mark, he is.
[00:47:27]  And he continues, I was one of the minority, and of course I was wrong.
[00:47:34]  Now, I'm sure that was tongue in cheek, but what do you do with that?
[00:47:39]  I draw the, I mean, I'd say two things in response to that.
[00:47:42]  First of all, he gave a speech, but we have 12 uncontradicted treatises that say the opposite that that is not what Wong Kim Ark means and that's not the meaning of the clause.
[00:47:50]  But also, I make a more fundamental point when you're looking at Wong Kim Ark, One of the dissent has this dominant theme, really, a dom theme like, you can't be doing this because you can't make the.
[00:48:02]  We all agree, or it's obvious, that the children of temporary visitors do not become citizens.
[00:48:07]  And how does the majority opinion address that?
[00:48:09]  It says domicile three times when it recites the legal rule, it says permanent residence and domicile when it decides the holding.
[00:48:16]  So the court should be bound by what it says.
[00:48:18]  This is what we're deciding.
[00:48:19]  And again, on page 75, it says, this is the single question.
[00:48:21]  Now, there's been a lot of discussion up to that point, but at the very end, they said, the single question we've decided.

=== Codifying Naturalization Rules (08:47) ===

[00:48:27]  Is the citizenship test the children of Chinese immigrants with a permanent residence and domicile in the United States?
[00:48:34]  Do you think Native Americans today are birthright citizens under your test and under your friend's test?
[00:48:40]  I think so.
[00:48:41]  I mean, obviously, they've been granted citizenship by statute.
[00:48:44]  Put aside the statute.
[00:48:45]  Do you think they're birthright citizens?
[00:48:47]  No, I think the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens.
[00:48:53]  I understand that's what they said, but your test is the domicile of the parents.
[00:48:59]  And that would be the test you'd have us apply today, right?
[00:49:03]  Yes, yes.
[00:49:03]  So if a tribal Indian, for example, gives up allegiance to.
[00:49:07]  Our tribal citizens are born today, birthright citizens.
[00:49:11]  I think so, on our test, yeah.
[00:49:13]  If they're lawfully domiciled here.
[00:49:15]  Okay, but then.
[00:49:16]  I have to think that through, but that's my reaction.
[00:49:18]  I'll take the yes, that's all right.
[00:49:21]  And then I just want to ask you quickly about the INA adopted in 1940 and 1952.
[00:49:27]  It uses the same term.
[00:49:29]  As the citizenship clause.
[00:49:31]  And one might have a pretty good argument.
[00:49:34]  I'm sure you got some arguments along just these lines that it should be understood to mean whatever it meant in 1868.
[00:49:40]  But there was a lot of water over the dam between those two things.
[00:49:44]  And as your brief points out, by the Roosevelt administration, there's a pretty strong juice solely move.
[00:49:54]  That is to say, that the thin concept of jurisdiction, power over, is enough.
[00:50:00]  A broader understanding of birthright, would there be an argument for reading that statute under its original plain meaning at the time, 1940, 1952, to perhaps have a different meaning than the Constitution?
[00:50:14]  We don't think that's the best interpretation.
[00:50:16]  I give two reasons.
[00:50:17]  One is it would be very surprising if a statute that says exactly the constitutional phrase, subject to the jurisdiction thereof, were interpreted to mean something totally different or to ossify a then current misunderstanding of the clause.
[00:50:29]  We think that the best analogy here is probably state long arm statutes.
[00:50:33]  Take a sort of non controversial example.
[00:50:35]  State long arm statutes routinely say we're going to exercise personal jurisdiction to the extent of due process.
[00:50:40]  It takes the constitutional standard and it puts it in the statute.
[00:50:43]  And nobody thinks that those ossify, you know, are limited to the precedent, this court's precedence at the time they're enacted.
[00:50:50]  Everyone thinks that that phrase, due process, incorporates, you know, the developing law of due process and minimum context and so forth, including from this court.
[00:50:58]  So we think that's the best analogy.
[00:51:00]  When you're looking at the constitutional phrase itself, And you take it out of a freighted context, the natural interpretation is to say this reflects the objective meaning of the Constitution.
[00:51:11]  And the objective meaning of the Constitution is its original public meaning in 1866.
[00:51:14]  Do you see any notable counterpoints to that argument?
[00:51:19]  I'm sure there are arguments on the other side.
[00:51:20]  We've addressed them in their brief.
[00:51:22]  So, really, at the end of the day, then, this is a straight up constitutional ruling you want from this court win, lose, or draw?
[00:51:29]  Yeah, we think that the statute of the Constitution means the same thing.
[00:51:32]  If the court disagrees, obviously we prefer an adverse ruling if the court's going to agree.
[00:51:36]  Do that on a statutory basis than a constitutional basis.
[00:51:39]  But you just disavowed that in your responses to me by saying that that's not an available option.
[00:51:44]  That's the way I understood it.
[00:51:46]  Yes, the court would have to disagree with our statutory position, which is that it means the same thing as the Constitution.
[00:51:51]  But if the court were to do that, then The natural course would probably be to rule on statutory grounds alone.
[00:51:55]  Now, we think they mean the same thing, and we've got arguments for that, including, I think, the analogy I just referenced.
[00:52:00]  Thank you.
[00:52:01]  Justice Kavanaugh?
[00:52:02]  General, how should we think about the text of the 14th Amendment, subject to the jurisdiction thereof, as distinct from the different language of the Civil Rights Act of 1866, which refers, as you know, to persons not subject to any foreign power?
[00:52:18]  Those texts are, on their face, different, and the history that Justice Kagan referred to might have developed.
[00:52:26]  Quite a bit differently, if the 14th Amendment's text had used the phrase that was in the Civil Rights Act.
[00:52:34]  That's an excellent point.
[00:52:35]  And this court has held in multiple cases heard against Hodge and general building contractors has recognized that they're intended and they did mean the same thing.
[00:52:43]  And that's powerfully reinforced by the congressional debates, where you really what they're discussing is they said they were dissatisfied with the language in the Civil Rights Act because the phrase Indians not taxed they thought was ambiguous.
[00:52:54]  And so they switched to the affirmative statement as opposed to the negative statement.
[00:52:57]  The affirmative statement is subject to the jurisdiction thereof, but there are express statements in the congressional record essentially that we're doing the same thing, and that is what this court's case law has reflected.
[00:53:06]  Why didn't they say the same thing?
[00:53:09]  Again, it appears they preferred the sort of positive formulation, subject to the jurisdiction thereof, as opposed to not subject to any foreign power.
[00:53:15]  And again, there's a deep concern and lengthy discussion of the potential ambiguity in the Civil Rights Act.
[00:53:21]  They want to eliminate the ambiguity but do the same thing, and I think that that's very strongly reflected in those debates.
[00:53:27]  By the time of the 1940 and 1952 congressional actions, Where Congress repeats subject to the jurisdiction thereof.
[00:53:38]  Given Juan Kimark, one might have expected Congress to use a different phrase if it wanted to try to disagree with Juan Kimark on what the scope of birthright citizenship or the scope of citizenship should be.
[00:53:56]  And yet Congress repeats that same language knowing what the interpretation had been.
[00:54:02]  So, how are we to think about that?
[00:54:03]  I think baked into that question is an understanding.
[00:54:06]  I think that was reflected in Justice Kagan's earlier question that everybody understood that Wong Kim Ark meant that.
[00:54:11]  And the history I talked about, I think, refutes that.
[00:54:13]  That really there's a consensus that goes our way for decades and decades after the adoption of the amendment and after Wong Kim Ark on the specific question of the children of temporary visitors.
[00:54:24]  And it's really not until.
[00:54:25]  And again, their author in 1921 is saying, hey, the other side is a consensus.
[00:54:29]  I'm sorry.
[00:54:30]  Sorry, go ahead.
[00:54:32]  But there's executive branch interpretations and others.
[00:54:36]  If you're in Congress in 1940 and 1952 and you want to limit the scope of Long Kim Arc or to eliminate ambiguity, why do you repeat the same language rather than choosing something different?
[00:54:51]  For example, you could use the language from the Civil Rights Act of 1866 or some similar formulation if your idea in 1940 and 1952 was to not have ambiguity or not have an overly broad scope.
[00:55:08]  I think if you look at the structure of that statute, where it's 1401A and then B through H, it says these are the people who are entitled to birthright citizenship.
[00:55:17]  A is the constitutional standard, and then B through H are all the categories that Congress has superadded to that.
[00:55:23]  I think the natural inference is that Congress is codifying, which it was consciously doing in 1941, pulling all the naturalization rules and immigration rules together into one statute and said, you go to one place, here's who is a birthright citizen.
[00:55:35]  A, those who are guaranteed that right by the citizenship clause, and B through H are the ones that Congress has added through its naturalization power.
[00:55:42]  So that inference to me says, A, is merely, it's not trying to change or alter the constitutional standard.
[00:55:48]  It's just saying, hey, the baseline is what the Constitution says, and we codify that, and then we move on to the new categories.
[00:55:54]  Of what relevance, if any, do you think Section 5 of the 14th Amendment has here that gives Congress the power to enforce the article, the 14th Amendment, by appropriate legislation?
[00:56:07]  Does that give Congress room here, or do you not think so?
[00:56:13]  I do think that a ruling in our favor would leave room for Congress.
[00:56:16]  I don't think you'd have to rely on Section 5.
[00:56:18]  I think that Congress has its own inherent power to grant citizenship by statute.
[00:56:22]  So if the court were to rule in our favor for the classes of individuals that they say should be covered, Congress has the latitude to do that.
[00:56:28]  How much room do you think Section 5 gives, if any, and it may not be any, Congress to interpret the phrase subject to the jurisdiction thereof or to define that?
[00:56:40]  Is that relevant at all?
[00:56:42]  It's a great question, and I'm thinking about it for the first time.
[00:56:44]  I assume it would be governed by the congruence and proportionality test from this court's case law.
[00:56:48]  How that would apply here, I don't know.
[00:56:49]  And I don't think it's presented because our contention is that the statute means exactly the same thing.
[00:56:53]  If anything is congruent and proportional, it's that.
[00:56:55]  And I think the court held that in the United States against Georgia.
[00:56:58]  You've mentioned several times the practices of other countries, and that's obviously, as a policy matter, supports what you're arguing here.
[00:57:09]  But obviously, we try to interpret American law with American precedent based on American history.

=== Interpreting Constitutional Precedent (09:20) ===

[00:57:18]  That's certainly what I try to do, and I think you try to do.
[00:57:20]  And so, why should we be thinking about, even though as a policy matter I get the point, thinking about, gee, European countries don't have this?
[00:57:30]  Most other countries, many other countries in the world don't have this.
[00:57:33]  Doesn't that, I guess I'm not seeing the relevance as a legal, constitutional, interpretive matter necessarily, although I understand it's a very good point as a policy matter.
[00:57:45]  Yeah, I largely agree with that, and you can view it as being raised preemptively, defensively.
[00:57:49]  I'm going first, but obviously the other side in there and Miki say, you know, make end of the world type predictions, and our point is, you know, it's a very small minority of countries.
[00:57:59]  Almost every country, and certainly all European countries, have a different rule, and the world hasn't ended there.
[00:58:05]  The other side, last one, the other side relies heavily, of course, on Wonkim Ark, and you disagree with their interpretation.
[00:58:13]  Oftentimes, when you are dealing with a constitutional precedent like this, you might argue, we disagree with that interpretation, but if you adopt their interpretation or agree with their interpretation of that precedent, you should overrule it.
[00:58:27]  And you haven't made that argument here, and I'm just giving you an opportunity to explain why you haven't.
[00:58:34]  Because we think it's totally unambiguous in Wonkim Ark that the holding is.
[00:58:38]  Relates to domiciled aliens.
[00:58:41]  And so we strongly agree with the holding.
[00:58:42]  We think domicile was the touchstone, and we think that's not a coincidence for the reason that I maybe speculated a little bit when I was talking to Justice Gorsuch about how the dissent raises this, and then the majority's like, we're putting domicile in there so we know that the absurd conclusion that they say would come from this isn't there.
[00:58:58]  But also, domicile as kind of the sort of relationship that creates this relationship of allegiance that makes you part of a political community if you're an alien from another country.
[00:59:09]  That's deeply rooted in their understanding when they're doing it.
[00:59:11]  They talk about domicile in Yikwo against Hopkins in the 1892 and 1893 cases, and there's this deeply rooted understanding again that goes all the way back to the early 19th century.
[00:59:21]  So we think that's a really important conception.
[00:59:22]  So, I mean, we disagree with some of the dicta in Wong Kim Ark that we discuss, and we think there's dicta that goes our way that the other side overlooks.
[00:59:29]  And we're not asking the court to overrule dicta.
[00:59:31]  We just say don't follow erroneous dicta and don't apply it to this brand new situation that was not decided in Wong Kim Ark.
[00:59:37]  Thank you.
[00:59:38]  Mr. Sparrett?
[00:59:39]  So, General Sire, I want to zoom out a little bit and think about use solely and use sanguinis.
[00:59:45]  So, as I understand it, at the time of the 14th Amendment, those were the two dominant approaches.
[00:59:49]  You know, use solely, the English common law, roughly following the soil.
[00:59:54]  Use Sanguinis, roughly citizenship following the parents.
[00:59:58]  Now, use soli was very generous on the soil, the English common law, and so it extended citizenship to those born there who may not have been born of parent citizens.
[01:00:09]  But use Sanguinis, you know, if parents who were citizens and had a child abroad, then that child's citizenship followed the parents.
[01:00:18]  So, one thing that's puzzling me about your argument when I think about the ratification of the 14th Amendment, in many ways it would have made sense.
[01:00:27]  For them, and you acknowledge the use sanguinis in citing Vittel, it would have made sense in some ways for them to say, okay, we're going to follow, if they wanted to accomplish what you're saying they wanted to accomplish, you could say, well, we're going to follow use sanguinis because we're going to make it all ride on parentage.
[01:00:43]  But instead, I mean, the 14th Amendment we're talking about subject to the jurisdiction thereof, but it also says born in the United States.
[01:00:49]  So you have the use solely kind of point there, but you're saying it narrowed that point by tying it to the citizenship of the parents, at least as the soil, but I take it you're not arguing that.
[01:01:02]  United States citizens who have children born abroad would qualify for birthright citizenship.
[01:01:08]  So it's kind of a narrower view of both the traditional use solely rule and a narrower view of the use sanguinis rule.
[01:01:17]  So why would they have done that?
[01:01:18]  And if they were going to invent an entirely new kind of citizenship, like an American brand, why wouldn't we have seen more discussion of that in the debates?
[01:01:26]  I think you do.
[01:01:27]  And I'm saying, I think the right way to conceptualize it is much more, it is a modified use solely.
[01:01:32]  Because even the British sources don't just say you're born here, you're a citizen.
[01:01:36]  They say you're born here and you have to be under the protection of the sovereign.
[01:01:40]  You have to have a relationship of allegiance.
[01:01:42]  Allegiance is the word in Calvin's case.
[01:01:44]  But they don't focus on the parents, it's the child.
[01:01:47]  And your approach focuses on the parents' allegiance.
[01:01:50]  Yeah, I'm not sure that that's true of the 19th century.
[01:01:52]  That's a little ambiguous, and I'm going to ask your friend on the other side that question.
[01:01:56]  Let me point out then that there are two criteria one is birth on the soil, and the other is allegiance or allegiance.
[01:02:02]  What we have is birth on the soil remains the same, right?
[01:02:05]  And so they are, and that's why so much of Wong Kim Armour.
[01:02:07]  Is actually, we agree with because they are adopting a modified British rule.
[01:02:11]  They are not going the French rule, you know, that Vittel talks about where it's like, who's the citizen?
[01:02:15]  That had to be done by statute, as you pointed out, which it was in 1401.
[01:02:19]  But what they've got is they say birth in the United States and subject to the jurisdiction thereof.
[01:02:24]  That is talked about as allegiance, allegiance, allegiance in the congressional debates.
[01:02:27]  But they were clearly not incorporating the British feudal monarchial conception of allegiance where it's indefeasible.
[01:02:36]  I mean, going back to the early 1700s, our nation had repudiated the notion that citizenship is indefeasible.
[01:02:41]  The expatriation statutes for the late 1700s reflect that.
[01:02:45]  And again, you look at the 1868 congressional report that we cite.
[01:02:50]  There, this is the same group of congressmen, Republican congressmen, and they say things like the U.S. Constitution itself is proof that Blackstone's theory of allegiance was not accepted.
[01:03:02]  So they accept birth on U.S. soil, but then they take the concept of allegiance and give it its Republican, Democratic, American understanding.
[01:03:10]  And that's very, very, I think that makes a ton of sense.
[01:03:14]  Okay, and let's talk about its applications.
[01:03:16]  So, you know, there are some, I can imagine it being messy in some applications.
[01:03:21]  So, what would you do with what the common law called foundlings?
[01:03:25]  You know, the thing about this is then you have to adjudicate if you're looking at parents and if you're looking at parents' domicile, then you have to adjudicate both residence and intent to say, what if you don't know who the parents are?
[01:03:37]  I think there are marginal cases.
[01:03:39]  That one, I think, has the benefit of being addressed in 1401F where it talks about foundlings.
[01:03:42]  Yeah, yeah, yeah, but what about the Constitution?
[01:03:44]  Under the Constitution, it's dominant.
[01:03:46]  I mean, look, there, Domicile is a constitutional standard in all kinds of other situations.
[01:03:50]  Well, and it's hard.
[01:03:51]  Diversity jurisdiction, personal jurisdiction, sorry.
[01:03:53]  Well, yeah, and personal jurisdiction, I mean, 1332, diversity jurisdiction.
[01:03:57]  And the thing is, it has to be litigated because it turns on intent.
[01:04:01]  And both the virtue of both use solely and use sanguinis, whichever one you pick, it's a bright line rule.
[01:04:07]  How would it work?
[01:04:08]  How would you adjudicate these cases?
[01:04:10]  You're not going to know at the time of birth for some people whether they have the intent to stay or not, including U.S. citizens, by the way.
[01:04:18]  I mean, what if you have someone who is living in Norway with their husband and family but is still a U.S. citizen, comes home and has her child here and goes back?
[01:04:28]  How do we know whether the child is a U.S. citizen because the parent didn't have an intent to stay?
[01:04:32]  I'd say make two points one practical, one legal.
[01:04:35]  The practical point is under the terms of this executive order, you don't have to because the executive order turns on objectively verifiable things, which is immigration status.
[01:04:42]  Are you lawfully present but temporarily present, or do you have an illegal status?
[01:04:47]  So, those kind of like taking evidence, so to speak, under subjective intent wouldn't be done.
[01:04:52]  And as to the constitutional point, obviously domicile is baked into a lot of constitutional and legal concepts, and there may be situations where facts are determined, but if you look at the guidance, The guidance that all the agencies did after this court and Costa said the agency could go forward to issue guidance.
[01:05:05]  The guidance provides, I think, very, very clear, objective, verifiable approaches to doing this.
[01:05:12]  And so, as a practical matter, I don't think it's presented by this executive order.
[01:05:16]  Thank you, General.
[01:05:17]  Justice Jackson.
[01:05:20]  Good morning, General.
[01:05:22]  So, I guess I am looking at your position in this case, and it boils down to Requiring us to do at least these two things.
[01:05:34]  One is to believe that the framers were not importing the common law rule and understanding of birthright citizenship.
[01:05:44]  And the second is to believe that what they were doing was departing from that common law rule in the way that you suggest.
[01:05:54]  That is, they were seeking to have this turn on domicile.
[01:06:00]  I think you have a number of hurdles to accomplish.
[01:06:04]  Those two things.
[01:06:06]  One of which I think is that when we look at this court's case law, no one I think has mentioned Schooner's Exchange, but it appears that that was an 1812 case in which it seems as though the court had already accepted at the time of the ratification of the 14th Amendment that the allegiance that you were talking about was the English common law rule.

=== Senator Fessenden's Allegiance View (06:37) ===

[01:06:35]  That, in other words, allegiance meant that you are covered by the laws of the jurisdiction, that you can rely on that jurisdiction's protection.
[01:06:45]  That's what allegiance meant.
[01:06:47]  Now, you're saying today, no, no, allegiance meant something about loyalty or that kind of idea.
[01:06:54]  But if the Supreme Court had, prior to the 14th Amendment, established that allegiance meant the common law definition, I think your first hurdle is to help us understand why we would believe.
[01:07:09]  That when the 14th Amendment was ratified, the framers weren't just incorporating what we had previously said it meant.
[01:07:19]  Page 572 of the Congressional Record directly addresses this.
[01:07:22]  They say the concept of temporary and local allegiance from the Schooner Exchange is what is meant by, or temporary and local jurisdiction from the Schooner Exchange is what is meant by the word jurisdiction in the 14th Amendment.
[01:07:32]  Senator Trumbull says, I thought about saying owing allegiance, but again, quote, there's a sort of allegiance from persons temporarily resident in the United States.
[01:07:41]  Whom we have no right to make citizens.
[01:07:43]  So he expressly and consciously rejected reliance on citizenship.
[01:07:47]  What do we do with that?
[01:07:48]  I mean, that's a debate and it's a discussion, very valid.
[01:07:51]  But then we have a subsequent debate between Fessenden and Wade.
[01:07:56]  Where the same concept comes up, and it becomes clear, at least from Senator Wade's perspective, that that's wrong.
[01:08:05]  So, Senator Fessenden, and I'm not sure whether these are senators, I apologize.
[01:08:09]  Fessenden says, Suppose a person is born here of parents from abroad temporarily in this country.
[01:08:16]  Wade responds, The senator says a person may be born here and not be a citizen.
[01:08:22]  I know that is so in one instance, in the case of the children of foreign ministers who reside near the United States.
[01:08:30]  Et cetera, et cetera.
[01:08:32]  So it appears as though in that exchange, at least Senator Wade believed that the English common law understanding of what it means to have allegiance, to be a temporary person on the soil, was what was being adopted.
[01:08:50]  Yeah, that exchange strongly supports us.
[01:08:53]  If you look at it in context, Senator Wade has introduced a version that says only birth on U.S. soil and doesn't have any allegiance or jurisdictional.
[01:09:02]  Element to it.
[01:09:03]  And so Senator Fessenden stands up and says, Well, that can't be right because, you know, obviously, what about the children of temporary visitors?
[01:09:10]  It has this, you know, it's another one of these statements that has this appeal to a background understanding that we all agree that the temporary visitors, their children, do not become citizens.
[01:09:19]  And then Senator Wade has to kind of backtrack and say, Well, what about the children of ambassadors?
[01:09:23]  And in the end, Congress does not adopt Senator Wade's proposal.
[01:09:26]  So we think that, to extend, you can draw an inference from that.
[01:09:29]  The inference strongly supports.
[01:09:30]  All right.
[01:09:30]  Well, let me just ask you about.
[01:09:32]  Why we wouldn't see in the 14th Amendment anything about parental allegiance.
[01:09:36]  Several of my colleagues have talked about the fact that your view of this turns on what the status of the parents are and not the child, as would the born in the United States view of it.
[01:09:51]  Can you help us understand why we wouldn't expect to see a mention of parents in the text of this amendment?
[01:09:58]  I think it was well understood that, for example, children cannot, newborns cannot.
[01:10:03]  Form domicile, so it follows every 19th century.
[01:10:06]  That assumes domicile is in the test.
[01:10:07]  And I'm asking you, how do we know that Congress did adopt the test that you say it adopted?
[01:10:14]  When you're looking at 19th century conceptions of allegiance, the notion that the allegiance, again, we say domicile is instantiating the concept of allegiance for aliens as opposed to citizen.
[01:10:24]  All of that, the 19th century understands the newborn's domicile, its allegiance follows the allegiance of the parents.
[01:10:30]  And I point out that their theory relies on parental allegiance as well because they recognize the exceptions for.
[01:10:36]  You know, hostile invading armies, for tribal Indians, for ambassadors.
[01:10:42]  Again, the child's allegiance status, even on their view, turns on the status of parent.
[01:10:46]  What do we do with Professor Mueller's amicus brief and the historical record and the fact that even at times in this country where we understood that the parents were declared enemies of the United States, I'm talking about World War II and Japanese internment, babies born in that circumstance were given birthright citizenship?
[01:11:07]  So it seems as though this concept of allegiance of the parents really wasn't driving birthright citizenship, at least at this period of our history.
[01:11:17]  So are you saying this is wrong or they shouldn't have gotten birthright citizenship?
[01:11:20]  Well, if they were domiciled here, yes, they should have.
[01:11:23]  If they were temporarily present, then no.
[01:11:25]  But the executive practice we can see from the 1930s.
[01:11:30]  How does the temporary presence run with your concept of allegiance?
[01:11:35]  I'm not sure I understand.
[01:11:36]  So can you be clear?
[01:11:37]  Are you saying that only people who are Domiciled here as you define it, can form the necessary loyalty to the United States?
[01:11:48]  It's not a question of subjective loyalty.
[01:11:50]  Okay.
[01:11:51]  Oh, it is something you owe.
[01:11:52]  It's a reciprocal relationship between the citizen, whether they want it or not, they have that allegiance.
[01:11:56]  And I think it's powerfully.
[01:11:57]  On the basis of what?
[01:11:59]  I mean, that's what it says in so many words in the Venus and the Pizarro.
[01:12:02]  It says, look, if you're talking about an alien, if they're just temporarily passing through, no, they don't have allegiance.
[01:12:07]  But if they've made it to their permanent home, they become part of our political community and they are analogous or akin to citizens.
[01:12:14]  All right, just quickly, because I'm mindful of the time, what do you do with Juan Kim Ark's statement that birthright traditionship is applying, quote, independently of a residence with intention to continue such residence?
[01:12:31]  Independently of any domiciliation, I know that they use domicile, it's a fact in the case, but that's not a part of their holding, it's not what the reasoning turns on.
[01:12:43]  I believe you're quoting from page 693 of that opinion, it goes on to say, not citizen terms on that, but the duty of obedience to our laws.
[01:12:51]  It doesn't take the further step at that point and say, therefore, if you have temporary local allegiance, you're a citizen.
[01:12:56]  And immediately before that, you have that page 693 summary of the court's holding where it says, Guam can are incorporates a domicile requirement.
[01:13:05]  That is the holding, it's Definitely clearly expressed in the holding of the law.
[01:13:08]  All right, one final thing perspective.
[01:13:09]  You say, perspective, we're supposed to do this.

=== Social Security and Intent (10:45) ===

[01:13:12]  Don't worry about the people who are already here and who would not qualify under your rule.
[01:13:18]  How does this work?
[01:13:19]  Are you suggesting that when a baby is born, people have to have documents, present documents?
[01:13:27]  Is this happening in the delivery room?
[01:13:29]  How are we determining when or whether a newborn child is a citizen of the United States under your rule?
[01:13:36]  And I think that's directly addressed in the SSA guidance that's cited in our brief.
[01:13:40]  What SSA says is there's currently a system where, for example, social security numbers are generated based on the birth certificate.
[01:13:46]  They say this can still be, for the vast majority of instances, completely transparent.
[01:13:50]  You will still get a.
[01:13:51]  No, not transparent.
[01:13:52]  I'm just talking about the particulars.
[01:13:54]  Because now you say your rule turns on whether the person intended to stay in the United States.
[01:13:58]  And I think Justice Barrett brought this up.
[01:14:00]  So we're bringing pregnant women in for depositions.
[01:14:03]  What are we doing to figure this out?
[01:14:05]  No, as I pointed out earlier, the executive order turns on lawfulness of status.
[01:14:10]  So, if you give birth to a baby in the hospital right now, it gets the birth certificate in the system.
[01:14:16]  There's a computer system.
[01:14:17]  So, there's no opportunity, there's apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States.
[01:14:25]  Absolutely not.
[01:14:25]  The opposite is true.
[01:14:26]  Their opportunity to dispute if they think they were wrongly denied, which would only happen in a tiny minority of cases, is directly addressing that gap.
[01:14:33]  After the fact, after their baby has been denied citizenship, then we can go through the process.
[01:14:37]  And the way that, I mean, I'm summarizing because I'm not an expert in computers, but there's a computer program that currently automatically generates a social security number.
[01:14:44]  SSA says, look, a social security number, non citizens can have them if they work authorization, so it doesn't prove citizenship.
[01:14:49]  We'll give you a social security number, provided that the system automatically checks the immigration status of the parents, which there are robust databases for, and then it appears no different to the vast majority of birthing parents.
[01:15:02]  Thank you.
[01:15:03]  Thank you, counsel.
[01:15:15]  Ms. Wong?
[01:15:16]  Mr. Chief Justice, and may it please the court, ask any American what our citizenship rule is, and they'll tell you, everyone born here is a citizen alike.
[01:15:27]  That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.
[01:15:34]  When the government tried to strip Mr. Wong Kim Ark's citizenship on largely the same grounds they raised today, this court said no.
[01:15:43]  Thirty years after ratification, This court held that the 14th Amendment embodies the English common law rule.
[01:15:50]  Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.
[01:15:57]  It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign's jurisdiction, even when they're in the United States.
[01:16:08]  A closed set of exceptions to an otherwise universal rule.
[01:16:13]  My friend has now clearly said that the government is not asking you to overrule Wonkim ARC.
[01:16:19]  That is a fatal concession because Wonkim ARC's controlling rule of decision precludes their parental domicile requirement.
[01:16:28]  The dissent understood that, and the majority tells us six times in the opinion that domicile is irrelevant under common law.
[01:16:37]  Lynch versus Clark was already the dominant American case on citizenship, and it held that the U.S. born daughter of temporary visitors from Ireland who took the baby back to Ireland with them was a U.S. citizen.
[01:16:52]  Authorities, including Lincoln's Attorney General and Kent's commentaries, embraced Lynch, and Kent specifically talked.
[01:17:00]  About temporary sojourners' children being U.S. citizens.
[01:17:04]  Justice Field said in 1884 that that reflected the general understanding.
[01:17:10]  That understanding was confirmed by Congress with its 1940 Act.
[01:17:16]  The 14th Amendment's fixed bright line rule has contributed to the growth and thriving of our nation.
[01:17:22]  It comes from text and history, it is workable and it prevents manipulation.
[01:17:29]  The executive order fails on all those counts.
[01:17:32]  Swathes of American laws.
[01:17:34]  Would be rendered senseless, thousands of American babies will immediately lose their citizenship.
[01:17:39]  And if you credit the government's theory, the citizenship of millions of Americans, past, present, and future, could be called into question.
[01:17:48]  All of this tells us the government's theory is wrong.
[01:17:51]  I welcome the court's questions.
[01:17:53]  There are five exceptions to citizenship that you do accept.
[01:18:00]  Yes, depending on how many you count, Justice Thomas, how you count them.
[01:18:04]  What is the underlying rule of law?
[01:18:09]  That you use to connect these five exceptions?
[01:18:12]  Sure.
[01:18:12]  So, as I just said, all of the exceptions involve situations where that U.S. born child is not subject to the jurisdiction of the United States because that extraterritoriality, the fiction of extraterritoriality, the interaction of another sovereign between the United States' jurisdiction and that person applies to the child as well as to the parent.
[01:18:37]  Everyone else born in the United States. Is subject to the United States' jurisdiction.
[01:18:43]  To answer Justice Barrett's question to my friend, that's what sets those exceptions apart from other U.S. born persons.
[01:18:52]  We've heard a lot of talk about long K mark, and you dismiss the use of the word domicile in it.
[01:19:02]  It appears in the opinion 20 different times, including in the question presented and in the actual.
[01:19:14]  Legal holding, and the government doesn't want it to be overruled because it relies on it's willing to rely on that particular fact in that case.
[01:19:25]  Isn't it at least something to be concerned about to say that since discussed 20 different times and has that significant role in the opinion that you can just dismiss it as irrelevant?
[01:19:38]  Well, Chief Justice, Mr. Chief Justice, I think we have to look at what the controlling rule of decision is in Wonkimark.
[01:19:45]  Justice Gray takes pains in the majority opinion to set out his analysis.
[01:19:49]  He first starts with a premise that in construing the 14th Amendment Citizenship Clause, we look to the English common law.
[01:19:57]  That was the rule that applied from the colonial era on, at least for the colonists and for European immigrants.
[01:20:05]  He then says, look, Chief Justice Marshall tells us in the Schooner Exchange what subject to the jurisdiction means, again, looking to the English common law.
[01:20:15]  Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance.
[01:20:21]  And those who are present in the dominions of the sovereign owe temporary allegiance for as long as they're present.
[01:20:27]  The only exceptions, again, at common law were ambassadors, people born on foreign ships, and people who were born during periods of foreign occupation.
[01:20:37]  He then gets to the government's favorite page, 693, where he says, look, we have had this rule in the United States as to citizenship, at least for white Americans, from before independence.
[01:20:50]  The purpose of the 14th Amendment was to embrace that universal rule of birthright citizenship.
[01:20:58]  To embrace and incorporate the common law exceptions with the single additional exception of the pre existing exception for tribal Indians that we had in the United States, which is an analogous exception, and that's the closed set of exceptions.
[01:21:14]  You can't make sense of the holding in the case without looking to the controlling rule of decision, which is the common law.
[01:21:21]  And I think my friend agrees that under English common law, domicile was not relevant, and the children born to temporary visitors.
[01:21:29]  In the territory of the sovereign, were always considered birthright citizens.
[01:21:33]  Well, Ms. Wong, I mean, everything you say strikes me as, yeah, that's the way I read it too, but then what are those 20 domicile words doing there?
[01:21:42]  Like, you can, you know, take some of them and say, I don't know, they were just summarizing the facts of the case, but not all of them.
[01:21:49]  And why did they keep on, like, why did they sprinkle that in the opinion?
[01:21:54]  Well, I think, again, those were the stipulated facts in the case, and it's clear we have textual evidence in the majority opinion.
[01:22:03]  That they were simply saying this is an a fortiori application of that controlling rule that comes from the English common law.
[01:22:11]  Justice Gray writes, again, after setting out the English common law rule and the exceptions, with a single additional exception for children of members of Indian tribes, that the amendment in clear words and manifest intent includes the children born within the territory of the United States of all other persons of whatever race or color domiciled within the United States.
[01:22:33]  And as was pointed out earlier, the very next.
[01:22:38]  Part of that same paragraph, he cites to Webster talking about Thrasher's case.
[01:22:45]  And he says, People who are born in this country owe allegiance independently of a residence within, I'm sorry, foreign nationals owe allegiance independently of a residence with intention to continue such residence, independently of any domiciliation, and independently of taking any oath of allegiance, which is totally contrary to both the government's theory of.
[01:23:10]  Dual allegiance or partial allegiance, and to the theory of domiciliation?
[01:23:15]  I mean, I would, I might agree with you if domicile had simply been sprinkled in the opinion.
[01:23:24]  But in Wang Kim Ark, it's a long opinion, but it begins by saying, here's the question, and it ends by coming back to the question.
[01:23:33]  And it says, here's the question stated at the beginning of the opinion, namely, whether a child born in the United States.
[01:23:41]  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.
[01:23:53]  And he states the diplomatic exception, and he says, for the reasons.

=== Wong Kim Ark Holding Analysis (02:50) ===

[01:23:57]  Above stated, this court is of the opinion that the question must be answered in the affirmative.
[01:24:03]  So, why put domicile in?
[01:24:05]  Sometimes it's hard to figure out what is the holding of the case.
[01:24:08]  Here he tells us this is the holding of the case.
[01:24:10]  Why put domicile in there?
[01:24:13]  It's just something irrelevant that he wanted to throw in.
[01:24:16]  It's like whether a child born in the United States of parents of Chinese descent who once resided at a particular address in San Francisco who attempted to enter the country at the port of San Francisco.
[01:24:31]  Why put it in if it's irrelevant?
[01:24:33]  Well, Justice Leto, I'll give you two responses.
[01:24:37]  The first is that, again, it was a stipulated fact.
[01:24:40]  The second is that, regardless of what the judgment in the case was, which again was an a fortiori application of the rule of decision, the rule of decision in Wong Kim Ark has binding precedential effect.
[01:24:54]  Even if you think that Wong Kim Ark decided the case based on the stipulated facts, you have to follow that controlling rule of decision.
[01:25:03]  If you follow that rule, you get to the same result for people without domicile.
[01:25:08]  Wong Kem Ark says six times in the first parts of the opinion, as well as on the page the government focuses on, that domicile is not relevant.
[01:25:18]  Well, Mr. Wong, on that, what do we do with the fact that after Wong Kem Ark, at least some authorities took the view that the non domiciliary question wasn't decided, remained open, and even continued to press.
[01:25:35]  The view that domicile is required.
[01:25:38]  Now, I know you've got a lot of good stuff on your side, too.
[01:25:41]  But what do we do with the fact that many, many sound legal authorities thought it remained an open question, even if one of them wasn't John Marshall Harlan?
[01:25:51]  I liked your example from Justice Harlan's lecture here in D.C.
[01:25:56]  So here's what I would say all of the government's citations in their brief generally either were rejected by Wonky Mark expressly, if they predated Wonky Mark.
[01:26:06]  If we're trying to understand how the legal community understood what happened in Won Kimark, it seems to me it's a mess.
[01:26:14]  So maybe you can persuade me otherwise.
[01:26:17]  I think I can, Justice Gorsuch.
[01:26:19]  First, as to the post Won Kimark authorities, the government cites, each one of them is inconsistent with Won Kimark's reasoning or doesn't mention it at all.
[01:26:29]  Most of them have very little reasoning at all.
[01:26:33]  And in contrast, what we have on our side post Won Kimark is numerous federal court decisions.
[01:26:40]  Around the time of Wong Kimark, between ratification and Wong Kimark, that said that domicile is not relevant.

=== Domicile as Public Acceptance (06:27) ===

[01:26:47]  They cited Lynch versus Clark, which again was about the daughter of temporary sojourners.
[01:26:52]  We have the sixth edition of Kent, which was cited in Wong Kimark and, of course, was then cited after Wong Kimark was decided by many authorities, again, discussing temporary sojourners.
[01:27:03]  Anyone who wanted to know what the law of citizenship was under the 14th Amendment after Wong Kimark would go to the sixth edition of Kent, where he says in that footnote on page 38.
[01:27:15]  That the rule was Lynch versus Clark, and temporary sojourners' children are U.S. citizens.
[01:27:20]  We have members of Congress speaking on the record on debates on immigration laws where they were finally passing these immigration restrictions that Senator Cowan wanted.
[01:27:31]  And they all stated either that Lynch was the rule, that Attorney General Bates had stated the rule, again citing Lynch, or Kent and stating the rule that everyone born in the U.S. is a citizen and saying, look, Children of Chinese immigrants, these immigrants who are unwelcome, these immigrants that Congress is now trying to bar from entering the United States, if their children born in the United States are citizens.
[01:27:57]  We have an 1896, so a couple years before Bonkimark, but an 1896 State Department regulation which said the U.S. born children of foreign nationals are U.S. citizens, excepting only the children of ambassadors.
[01:28:13]  And then you have Marshall Woodworth, who is a U.S. attorney who writes in a Law Review article that he's talking specifically about temporary sojourners' children.
[01:28:22]  And he says, I don't think that's a good rule from a policy perspective, but that's the general rule.
[01:28:29]  Ms. Lang, can I?
[01:28:30]  Yes.
[01:28:32]  Can I offer a possible explanation for why Justice Gray made a point of putting domicile in what he said was the holding of the case?
[01:28:44]  And it is this Wang Kim Ark and his parents, had they come to the United States from Europe, could have been naturalized.
[01:28:56]  But because they were Chinese, they could not be naturalized.
[01:28:59]  And they had done everything that they could.
[01:29:03]  To make themselves Americans by establishing a domicile in the United States.
[01:29:11]  And so that's what this was about.
[01:29:14]  He couldn't get naturalized because of a racist law, but they had done everything they could to become part of the American society.
[01:29:25]  At the same time, there were many, many men who were horribly exploited, brought to the United States to work on the Transcontinental Railroad, to work.
[01:29:37]  In mines, they were worked to death, they were treated horrifically, but they were not, they were overwhelmingly men.
[01:29:47]  There wasn't an indication that they would stay here, they could stay here, they didn't have permanent homes.
[01:29:54]  And the opinion is drawing a distinction between those two categories of people who would have been well understood at the time when Wang Kim Ark was decided.
[01:30:05]  No, Justice Leto, I don't think that's a plausible explanation for why domiciles mentioned.
[01:30:10]  In Wonky Mark, because again, the controlling rule of decision based on the English common law and cases from Schooner Exchange to Lynch versus Clark to State versus Manual, which was the North Carolina decision that said, look, the rule in the United States from independence on has been the English common law rule.
[01:30:31]  That explanation would be inconsistent.
[01:30:34]  But, Ms. Wong, isn't that an explanation?
[01:30:36]  I take Justice Alito's point, and I think he actually makes a good one in the sense that it could be.
[01:30:44]  That Justice Gray emphasized domicile to help the public accept the outcome of this case.
[01:30:54]  You're suggesting that the emphasis on domicile was not a part of the rule, meaning he wasn't saying you had to be like a foreigner who is doing everything they can and who can't be naturalized.
[01:31:09]  But he might have emphasized those facts in this case precisely because Chinese immigrants were unwanted.
[01:31:17]  Precisely because he had to get this out into the public, and people were going to say, Whoa, you're saying these people have to, this baby has to be a citizen?
[01:31:26]  And so one could imagine that it was important from a standpoint of helping people accept this citizen rule under these circumstances to emphasize that these particular people in this case were in Justice Alito's first category.
[01:31:44]  I think that is very possible, Justice Jackson, and as evidence of that, I would point to the fact that.
[01:31:50]  If you look at the briefing in Wong Kim Ark, you'll see that even though the parties had stipulated in the district court.
[01:31:59]  That Wang Kimark's parents were domiciled in the United States.
[01:32:03]  When the case came to the Supreme Court, the government's brief argued that it was impossible for Chinese immigrants to have domicile because they expressed the view that was common among people who opposed immigration by Chinese nationals to the United States.
[01:32:20]  There was a common view that Chinese people were inherently temporary sojourners in the country.
[01:32:26]  And so I do think it's possible, Justice Alito and Justice Jackson, that.
[01:32:31]  He was trying to dispel that notion and tell the government.
[01:32:33]  Absolutely.
[01:32:34]  At least it reads as though he's trying to calm everyone down.
[01:32:39]  These particular people were domiciled, but we're following the English common law rule.
[01:32:45]  And when you look at the English common law rule, domicile is not a factor.
[01:32:50]  That's right.
[01:32:51]  I think, you know, who knows why the majority opinion mentioned domicile?
[01:32:55]  We know it's a stipulated fact.
[01:32:57]  We know the government tried to renege on that stipulation and rely on this assumption on the part of anti Chinese.
[01:33:07]  Advocates at that time that Chinese people couldn't form a domicile in the United States, and he followed the English common law rule.

=== Enemy Alien Exceptions (15:15) ===

[01:33:15]  Ms. Michael, can I move?
[01:33:17]  Go ahead.
[01:33:18]  I just wanted to ask you a question about how the exceptions fit within the general rule.
[01:33:22]  You've called them exceptions, and some of the common law sources call them exceptions, so I take that point.
[01:33:27]  But if we think of you solely as tied to the territory, and we look at the exceptions as territorial in a sense, then they seem kind of like natural outcomes.
[01:33:38]  Growths of that rule, and this is what I mean, and this is where I want your help with how the exceptions played out in practice.
[01:33:45]  If you look at Indian reservations as unique places because Indians were quasi sovereigns, separate nations in the American system, if you look at occupied alien territory as territory that's outside the jurisdiction of the United States, and then if you look at the diplomatic exception, almost like diplomats and their children had little bubbles around them, like the embassy is really the territory of that country.
[01:34:13]  And even when they're traveling around, they're all not subject to the jurisdiction by virtue of this territorial fiction.
[01:34:19]  Are those just applications of the rule?
[01:34:22]  And if they are, then what happens to alien enemies like the German spies in Ex parte Quirin, or what happens to Indians who are actually not on the reservation but maybe born, say, in Baton Rouge?
[01:34:38]  How does the rule apply in those situations?
[01:34:40]  Does it travel with the person, or is it tied in some sense to the land?
[01:34:44]  Sure.
[01:34:45]  So let me answer each part in turn.
[01:34:48]  So, the thing that all of the exceptions have in common, again, is this sense that the person has this fiction of extraterritoriality around them.
[01:35:01]  Let's set aside the Indian tribal exception for a moment and come back to it.
[01:35:05]  So, the example of enemy aliens, for example, ex party Kieran, is one that is answered by Justice Story in both Inglis and in Rice.
[01:35:16]  And the touchstone under the American application of English common law was that in wartime, the touchstone is whether there's a foreign occupation of U.S. territory.
[01:35:29]  And that's just to interrupt for one second.
[01:35:31]  Sure.
[01:35:31]  And that is territorial.
[01:35:32]  Sometimes it just seemed to me that the rule varied.
[01:35:34]  Sometimes it was stated as enemy alien, and sometimes it was focused on occupied territory.
[01:35:40]  Sure.
[01:35:41]  So the rule I don't think there's a separate rule for enemy aliens, and the government's briefs, Describe the exception as an enemy alien exception.
[01:35:49]  I don't think that is the best way to think about it.
[01:35:52]  Rice and Inglis tell you that when the British forces are occupying Cassidy and Maine.
[01:35:59]  No one is subject to US jurisdiction there because Britain is ruling, is governing Castine, Maine.
[01:36:06]  And Justice Story explains look, if the US then retakes that territory, babies who are born to US citizens by what he called post limine become US citizens.
[01:36:17]  So that's the way to think about any wartime situation, enemy aliens or otherwise.
[01:36:24]  As we heard earlier, Professor Mueller's amicus brief tells us how we've thought about enemy aliens in wartime.
[01:36:32]  Even in World War II, When the United States was detaining Japanese nationals who were deemed enemy aliens of the United States, when those enemy aliens had babies in these detention camps, everyone agreed that those babies were U.S. citizens.
[01:36:48]  And Professor Mueller goes on to explain that there are many cases of those U.S. citizens going on to a lifetime of government service to the United States.
[01:36:57]  Everyone agrees those babies are U.S. citizens like everyone else.
[01:37:01]  So, again, the touchstone for enemy aliens is.
[01:37:05]  So, what about the Indian who's off the reservation or born off of a reservation?
[01:37:10]  Sure.
[01:37:10]  So, to start with the basics, I'll refer to the Indian tribal exception just to use the term of art.
[01:37:17]  The Indian tribal exception, Elk versus Wilkins tells us, comes from the constitutionally unique status of Indian tribes.
[01:37:25]  In the Indian Commerce Clause, we know that tribes are treated as basically quasi sovereign nations.
[01:37:33]  We know that from the Marshall trilogy of cases, we know from Worcester versus Georgia.
[01:37:38]  Where Chief Justice Marshall said that the tribes are essentially distinct political communities.
[01:37:44]  Well, I understand all that.
[01:37:45]  So, just at the entrance of time, just to sort of issue, I understand why the Indians are treated differently for purposes of the law, but I want to know is it tied to territory or is it tied to the status of someone as a member of a tribe?
[01:37:58]  Because if you're looking at it because of the special relationship of Indians to the United States as a matter of the Constitution, et cetera, well, I mean, citizens of France are citizens of a different sovereign as well.
[01:38:10]  Sure.
[01:38:11]  So, Elk versus Wilkins doesn't really answer that question.
[01:38:16]  The court says there are two ways to look at this.
[01:38:19]  Either you look at it as the tribal member is like an ambassador, or you can look at it like there's a territoriality issue where people are born on tribal lands, and therefore they're essentially, I think he says, Justice Gray says at one point, we might as well be talking about someone who's born in Mexico.
[01:38:38]  Well, there's a lot in Elk, and some of it's not terribly helpful for you, it seems to me, because Justice Gray, again, strikes again, says that they may be subject in some degree or respect to the United States.
[01:38:54]  So there's some jurisdiction.
[01:38:56]  He says they're born in the geographic limits.
[01:38:59]  They are, in a geographical sense, born in the United States.
[01:39:04]  But because they are not completely subject to the jurisdiction of the United States and owe allegiance distinct from the United States, that's what takes them outside.
[01:39:16]  And that language sure sounds a lot like the Solicitor General's presentation today.
[01:39:23]  To the contrary, Justice Gorsuch, I embrace that part of Elk versus Wilkins' holding.
[01:39:29]  Justice Gray, of course, wrote both Wong Kim Arnold and.
[01:39:32]  I know, and it's a struggle.
[01:39:33]  Sure.
[01:39:34]  Let me try to help you out with that.
[01:39:37]  So, you know, the government tries to make it seem as though what sets the exceptions apart, what defines the exceptions, is that the government has some maximum theoretical power.
[01:39:50]  The government could have exercised plenary regulatory power over the tribes, and therefore, that's the same situation as.
[01:39:58]  A foreign national in the United States.
[01:40:01]  But that's actually not true because remember, if the, there's always this background notion, whatever the parameters of the relationship between the United States government and tribal nations at that time of ratification, there was this constitutionally distinct status of the tribes and tribal members, the setting them excluding from apportionment, which came, was renewed in the 14th Amendment.
[01:40:28]  And that's not true for foreign nationals.
[01:40:30]  If the government, Word right that the question is what's the maximum theoretical power the government has?
[01:40:36]  There would be no ambassador exception because, of course, the United States could decide in some instance to go ahead and prosecute an ambassador.
[01:40:44]  There would be inter sovereign comedy considerations there.
[01:40:48]  That's how you define the exceptions.
[01:40:50]  And as Wong K. Mark says, Elk versus Wilkins has no bearing on the question of foreign nationals.
[01:40:57]  Ms. Wong, on the earlier answer you gave to Justice Gorsuch on the temporary sojourners cases, Those were distinct cases, correct, where the parents had come to the U.S. and didn't want to give citizenship to their kids, took them out immediately, correct?
[01:41:16]  I'm sorry, Justice Sonnemayer, I'm not sure which cases you're referring to.
[01:41:20]  All right, that we can look at.
[01:41:23]  Okay.
[01:41:24]  Ms. Wanger, would you agree that the citizenship test in the 14th Amendment is the same as the test in the 1866 Civil Rights Act?
[01:41:34]  So the words are obviously different.
[01:41:37]  What Wong Kimark tells us and what the debates tell us is that the framers, it was the same Congress obviously framing both.
[01:41:46]  Congress was trying to do the same thing with both the 1866 Act and with the 14th Amendment.
[01:41:51]  They wanted to capture the common law exceptions and the Indian tribal exception.
[01:41:56]  They started out with the two separate phrases not subject to any foreign power, plus excluding Indians not taxed.
[01:42:03]  And as Justice Gray described it in his majority opinion in Wong Kimark, they decided to switch to the affirmative phrase subject to the jurisdiction.
[01:42:10]  Yeah, well, do they mean the same thing?
[01:42:12]  And wouldn't it be very odd if the citizenship test in the 14th Amendment were broader than the citizenship test in the 1866 Civil Rights Act, particularly in the light of the fact that the 1866 Civil Rights Act was reenacted after the adoption of the 14th Amendment and remained in place until 1940?
[01:42:36]  Sure.
[01:42:38]  The framers were trying to do the same thing with the language in both.
[01:42:41]  Okay.
[01:42:41]  Then I think we can turn to the language of the 1866 Civil Rights Act because it's more straightforward.
[01:42:49]  Subject to the jurisdiction thereof is like the puzzle wrapped in an enigma, wrapped in a mystery.
[01:42:56]  But not subject to any foreign power is pretty straightforward.
[01:43:02]  So let me give you these examples.
[01:43:06]  A boy is born here to an Iranian father who has entered the country illegally.
[01:43:12]  That boy is automatically.
[01:43:14]  An Iranian national at birth, and he has a duty to provide military service to the Iranian government.
[01:43:21]  Is he not subject to any foreign power?
[01:43:26]  Not within the meaning of the 1866 Act, Justice Alito.
[01:43:30]  And that's clear from Won Kim Ark and it's clear from the debates.
[01:43:33]  What the framers meant by the phrase not subject to any foreign power was referring to the ambassador exception.
[01:43:39]  If it meant what the government contends, basically not a subject of any foreign power, That another country considers you a eusanguinis citizen, then lawful permanent residence, all foreign national citizens.
[01:43:53]  Well, ordinary public meaning of that would certainly encompass.
[01:43:58]  That boy, would it not?
[01:44:00]  Justice Alito, if you think that the language of the 1866 Act was ambiguous, as Wong Kimark says, the shift to the language of the 14th Amendment, which is the operative text, certainly clears up any ambiguity.
[01:44:13]  What I said about a boy born to an Iranian father is true of children born here to parents who are nationals of other countries.
[01:44:24]  If I'm correct, it's true to a child who's born here to Russian parents.
[01:44:29]  It's true to a child who's born here to Mexican parents.
[01:44:33]  They're automatically citizens or nationals of those countries and have a duty of military service.
[01:44:40]  It sure seems like that makes them subject to a foreign power.
[01:44:46]  But again, Justice Alito, that would have meant that the children of Irish, Italian, and other immigrants, which Juan K. Mark refers to and the debate the framers refer to, would not have been citizens either.
[01:45:01]  Because if the only test is whether that U.S. born child is considered a citizen by another country under their eusanguinis laws, then no foreign nationals' children would be.
[01:45:14]  Well, in all of those cases, the parents could be naturalized, and then the children would be derivatively naturalized when the parents were naturalized.
[01:45:29]  Won Kim Ark, I'm sorry.
[01:45:32]  The deadlit is on.
[01:45:34]  Wang Kim Ark has a passage explaining how this court should treat dicta.
[01:45:41]  And it quotes something that John Marshall said.
[01:45:44]  It is well, this is quoting from Wang Kim Ark, it is well to bear in mind the oft quoted words of Chief Justice Marshall.
[01:45:52]  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.
[01:46:03]  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 a decision.
[01:46:16]  So, does that fall within the, you know, what's good for the goose is good for the gander rule?
[01:46:22]  That's how Wong Kim Ark treats what was said in the slaughterhouse cases.
[01:46:30]  Should we apply that same rule to Wong Kim Ark itself?
[01:46:35]  Wong Kim Ark tells you what to make of the slaughterhouse dicta.
[01:46:38]  It was dicta.
[01:46:40]  The issue of citizenship was not at play in Slaughterhouse.
[01:46:44]  And in contrast, the parts of the holding, the parts of the decision that I alluded to, are the controlling rule of decision.
[01:46:53]  Again, we look to the English common law in construing the 14th Amendment.
[01:46:58]  Thank you, counsel.
[01:46:59]  Justice Thomas?
[01:47:00]  Anything further, Justice Alito?
[01:47:02]  Just a couple more questions.
[01:47:03]  So, if those who framed and adopted the 14th Amendment had wanted To limit the citizenship test to just those specific groups that you concede fall outside the birthright citizenship rule, why didn't they refer specifically to those groups?
[01:47:29]  Why did they adopt the general rule?
[01:47:31]  They could have said all persons born or naturalized in the United States, excluding Indians not taxed and those ineligible under common law, are citizens of the United States and of the state wherein they reside.
[01:47:44]  Or they could have said all persons born or naturalized in the United States, excluding Indians not taxed, and the children of foreign ambassadors or foreign invaders are citizens of the United States and of the state wherein they reside.
[01:47:56]  But they didn't do that, they adopted a general rule.
[01:47:59]  So, what's the explanation?
[01:48:01]  I would say the Wong Kimark tells us what the explanation is that the framers of the 14th Amendment, after overriding President Johnson's veto, wanted to adopt a universal rule with a closed set of exceptions.
[01:48:15]  And they believed that, subject to the jurisdiction of the United States, did that.
[01:48:20]  And that term does describe both the universal general rule and the common law exceptions, with the sole additional American exception for tribal Indians.

=== Historical Immigration Context (09:29) ===

[01:48:30]  Thank you.
[01:48:31]  Justice Solmeyer?
[01:48:32]  Ms. Wang, I don't, I've not quite understood the Solicitor General's argument that lawful domicile somehow changes the U.S.'s dominion over a person or allegiance.
[01:48:52]  Even in Justice Alito's examples, if your parents are Iranian, if you get permanent, lawful permanent residency here, that child still.
[01:49:05]  By their laws, when it leaves the United States, must serve in the Iranian army, correct?
[01:49:12]  Well, I don't know the answer to that.
[01:49:14]  What I can tell you is that under Wong Kim Ark, the court says we don't care about problems of dual nationality.
[01:49:23]  We don't look to other countries' laws in construing our 14th Amendment.
[01:49:29]  Well, it was undisputed there that Wong Kim Ark's parents.
[01:49:37]  Owed loyalties to China, correct?
[01:49:39]  Sure, yes.
[01:49:40]  What I'm saying is, even if you become a permanent resident, you're not a U.S. citizen.
[01:49:46]  So your primary loyalty still remains with your citizenship country, wherever you came from.
[01:49:52]  That's right, Justice Sotomayor.
[01:49:54]  I take your point now.
[01:49:55]  You understand what I'm saying.
[01:49:57]  And during temporary, whether it's lawful or unlawful, temporary presence in the United States, you are subject to the U.S. laws, correct?
[01:50:09]  That's right.
[01:50:10]  The question that the 14th Amendment asks is whether the U.S. born child is subject to U.S. jurisdiction when they're born.
[01:50:17]  Meaning, are they within the U.S. territory?
[01:50:20]  Exactly.
[01:50:20]  Other than the people covered by that closed set of exceptions.
[01:50:23]  Thank you.
[01:50:24]  That's right.
[01:50:25]  In other words, the government's rule, which really is looking at whether someone has a divided allegiance because they're a citizen of another country, would exclude the children of all foreign nationals.
[01:50:37]  And that isn't what they're saying.
[01:50:39]  Exactly.
[01:50:40]  So the only way that allegiance Lawful or unlawful has no play in this question.
[01:50:48]  I would say that the relevance of allegiance is the relevance under the English common law rule that's embodied in the 14th Amendment.
[01:50:55]  All persons born in the territory of the sovereign owe natural allegiance.
[01:51:00]  Except for limited, three limited exceptions.
[01:51:03]  Precisely.
[01:51:05]  Mrs. Kagan?
[01:51:06]  I think I'd like to take you back to the first question that Justice Salido asked General Sauer, and it was this question of.
[01:51:13]  What do we do if we think we have a new problem that didn't exist at the time of the 14th Amendment?
[01:51:20]  I don't think, actually, that the U.S. government argues the case this way.
[01:51:25]  But let's put the U.S. government's arguments aside and just ask something like, well, everything that you're saying would suggest an answer to the question of the children of people who are temporarily in the U.S. but here lawfully.
[01:51:43]  Is there any way that there might be a different answer with respect to the children of people who are here unlawfully because of this new problem issue that Justice Alito has raised?
[01:52:00]  No, there is no difference.
[01:52:02]  And of course, the government's arguments as to people who are unauthorized immigrants in this country all runs through and hinges on their domicile requirement.
[01:52:10]  The first thing I would say in response is that, once again, it's crystal clear from Wong Kimark and from the debates that the framers of the 14th Amendment meant to have a universal common law rule of citizenship subject to the closed set of exceptions.
[01:52:26]  And we can't take the current administrations, Policy considerations into account to try to re engineer and radically reinterpret the original meaning of the 14th Amendment.
[01:52:38]  The second point I would make is that, in fact, the framers did consider the concept and the actual problems of immigration that were coming up at that time.
[01:52:50]  In addition to this notable exchange between Senator Cowan and Senator Conness, where Cowan says, if we have this citizenship clause as part of the Constitution, We are going to encourage these gypsies, what he called gypsies, Roma, in Pennsylvania, whom he characterized as invaders, trespassers, and lawbreakers, to come into our country because their children will be citizens.
[01:53:19]  He says, Senator Conness, in your state of California, you will be facing a mass flood of Chinese immigration if we adopt the citizenship rule.
[01:53:29]  And Senator Conness, himself, an Irish immigrant, says, yes, and I am voting for that because I believe in citizenship by virtue of birth.
[01:53:38]  Without regard to parentage.
[01:53:40]  And the third point I would make is a historical one, which is that recall that at the time the framers are thinking about birthright citizenship, there had just been 15 or 20 years of unprecedented immigration from Ireland.
[01:54:00]  The Know Nothing Party was dominant in the 1850s, just a decade earlier, and they were vehemently opposed to Irish immigration.
[01:54:09]  They believed Irish Catholic immigrants.
[01:54:12]  were unassimilable and could never become Americans.
[01:54:15]  But even the Know Nothing Party members of Congress believed that the children born in the United States to those Irish immigrants were citizens like anyone else.
[01:54:26]  That's the intuition that the framers of the 14th Amendment had.
[01:54:31]  Contrary to the government's arguments now, they wanted to grow this country.
[01:54:37]  They wanted to make sure we had a citizenry to populate the military, to settle the country.
[01:54:43]  And they also had an intuition that was consistent with the founding aversion to inherited rights and disabilities.
[01:54:55]  Thank you.
[01:54:57]  Justice Gorsuch?
[01:54:58]  Justice Kavanaugh?
[01:55:00]  On Lynch v. Clark, which you cite several times in the briefing today, which I appreciate, the government's response is that that decision was questioned at the time and went unmentioned in congressional debates about the 14th Amendment.
[01:55:14]  I just want to get your response.
[01:55:16]  To that point on Lynch?
[01:55:18]  Sure, not true.
[01:55:20]  Though Lynch was not specifically mentioned by name in the 14th Amendment debates, it was a couple months earlier in the debates on the 1866 Act, where Senator Lawrence talks about the great case of Lynch versus Clark, where it was conclusively shown that all children born here are citizens without any regard to the political condition or allegiance of their parents.
[01:55:45]  And then, of course, they discussed the children of temporary sojourners elsewhere without mentioning Lynch.
[01:55:51]  I just want to isolate a point that you've mentioned, which is if the 14th Amendment used the phrase.
[01:55:59]  Not subject to any foreign power to give a much tougher argument.
[01:56:03]  And then earlier, I think you indicated that that's what they meant, even though they didn't say it.
[01:56:12]  I just want to give you a chance to unpack that, because I think that's.
[01:56:17]  Sure.
[01:56:18]  If it said that, I think our history would be a little different, and I think the text, even put aside the history, because that's speculation, the text would be quite a bit different.
[01:56:26]  Sure.
[01:56:26]  So let me answer in three parts.
[01:56:29]  The first is that Wong Kimark tells us.
[01:56:31]  That the court already dealt with this and said, look, the framers were trying to do the same thing with the language of the 1866 Act.
[01:56:40]  To the extent you think that the language is ambiguous or not as good, let's look at the operative text subject to the jurisdiction thereof.
[01:56:48]  The second point I would make is that it's clear from the debates that the framers, in using the phrase not subject to any foreign power, were thinking about ambassadors.
[01:56:57]  And I believe that Senator Wade at one point says, well, I wanted to start with.
[01:57:02]  The phrase, all persons born in the United States are U.S. citizens.
[01:57:06]  But then I thought, oh, wait, we have these temporary visitors.
[01:57:09]  In fact, the government points to this quote.
[01:57:10]  He says, so there are these temporary visitors.
[01:57:12]  We can't make their children citizens.
[01:57:16]  That's ambassadors, and that's very clear from the text.
[01:57:18]  So if that had been the text, your argument would be that was understood to be narrower than its text would read.
[01:57:24]  Yes.
[01:57:25]  But that's not the text, so I guess we don't need to deal with that.
[01:57:28]  Sure.
[01:57:28]  And that brings me to my third point, which is you can't read.
[01:57:33]  not subject to any foreign power the way the government urges you to without making the children of all foreign nationals non citizens.
[01:57:40]  And that's clearly not what the framers were doing.
[01:57:44]  Justice Alito and Justice Kagan raised an interpretive question that I think is important, which is, are the exceptions, you've used the word closed many times, frozen?
[01:57:53]  Okay, this is the war room.
[01:57:54]  We're back at 5 o'clock.
[01:57:56]  We're going to be back at 9 o'clock tonight to cover for our