Bannon's War Room - Episode 5263⧸5264： Historial Morning SCOTUS Hearing Arguments On Birthright Citizenship; Trump Live In The Courtroom

00:00:00.000 And so after the Civil War, the 14th Amendment was enacted principally to undo Dred Scott,

00:00:07.460 meaning that enslaved people, their children, are citizens and will forevermore be citizens.

00:00:13.480 In fact, what the 14th Amendment says is that anyone born in this country or naturalized, right,

00:00:19.340 and subject to the jurisdiction thereof are U.S. citizens.

00:00:22.920 And so the debate now is, what does that phrase mean, subject to the jurisdiction of?

00:00:28.820 There's an 1898 Supreme Court case, Wong Kim Ark, that seems to answer the question.

00:00:34.340 The president and his team took another swing at it.

00:00:37.600 And so to answer your question, why is this before the Supreme Court?

00:00:41.960 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.

00:00:52.520 And that's the problem I have with Donald Trump, because he doesn't give a damn about that.

00:00:57.980 He doesn't care about that because he wants to get his way.

00:01:01.100 And he wants to appease a very small sect of Americans who don't like their fellow Americans.

00:01:07.920 And they don't like the people who are coming here because they don't look like them.

00:01:12.080 They don't sound like them.

00:01:13.220 They don't have their hair like them.

00:01:14.580 They don't talk like them.

00:01:16.320 They don't make the movements that they've defined as Americans.

00:01:20.260 So if nothing else, the Supreme Court tomorrow, from where I see, can settle that piece.

00:01:26.140 that this you're born here, you're an American citizen, regardless of your parents' status,

00:01:33.200 regardless of your granddaddy's status, regardless of the color of your skin or where you're from.

00:01:38.160 That to me is an important aspect of this. The flip side of that coin is what Donald Trump

00:01:43.300 thinks. And I would love to get your thoughts when you look at those two pieces. Donald Trump

00:01:48.220 thinks that his way to win the argument is to basically crap all over the judges.

00:01:54.180 Sometime this summer, a majority of the justices come back and say, we agree with Donald Trump.

00:02:00.420 How then are you able to prove you are a citizen in this country?

00:02:04.740 Because if he gets his way with this, a birth certificate won't be enough.

00:02:10.020 And then I juxtapose that with the SAVE Act.

00:02:12.580 They're saying you need a passport and a birth certificate.

00:02:15.260 How are people supposed to prove their citizenship in this country if being born here does not qualify?

00:02:22.140 Right.

00:02:22.360 So if your question is, could it be messy if the Supreme Court goes the other way?

00:02:29.000 Yeah, absolutely.

00:02:30.240 And most recently, Simone, in the tariffs case, without getting into sort of the nuts and bolts of it,

00:02:36.180 the Supreme Court ruled one way but didn't quite explain how the remedy would work.

00:02:41.280 So is this a proactive remedy, meaning only children subsequently born?

00:02:46.500 That's what the executive order seems to posit.

00:02:49.260 Is it a retroactive order?

00:02:52.120 meaning it would apply to people already born in this country who we believe are citizens,

00:02:58.320 I doubt it. That seems completely unworkable.

00:03:01.720 But in terms of fashioning a remedy if the Supreme Court rules contrary to our common understanding,

00:03:08.300 you're right. It could be messy.

00:03:12.360 It's Wednesday, the 1st of April, the year of our Lord, 2026, a historic day.

00:03:17.560 We're going to go live to the Supreme Court.

00:03:19.220 But the President of the United States, I think in an unprecedented move, is at the

00:03:22.800 core today.

00:03:23.800 He will listen to the oral arguments.

00:03:25.020 Mike Hell, Mike Davis will join me.

00:03:26.980 Neal McCabe is there.

00:03:27.980 Also at 6.24 p.m. Eastern Daylight Time today, there's scheduled to be a launch of a live

00:03:33.100 crew of astronauts on a journey to the moon.

00:03:36.300 And then at 9 p.m. tonight, the President will address the nation about his plans on

00:03:41.140 the war in Iran.

00:03:42.920 So a big news day, Real America's Voice will be here all day covering it all, including

00:03:47.660 Special coverage at 9 o'clock tonight that will go to 11 o'clock or midnight as circumstances dictate.

00:03:55.640 Let's go quickly to Neil McCabe at the – Neil McCabe's outside the Supreme Court.

00:04:00.400 Neil, put us in the room.

00:04:01.720 We know the president has gotten to the building a few minutes ago.

00:04:05.760 What's going – and by the way, we're going to go to live coverage of the hearing,

00:04:09.040 a jerk back and forth between Mike Cal and Mike Davis for assessments.

00:04:12.660 Neil McCabe, what is going on outside?

00:04:14.440 Sounds like a festival.

00:04:17.660 Yeah, it's a carnival-like atmosphere here outside the Supreme Court, Steve.

00:04:21.960 Mostly supporters of birthright citizenship, but there are a few people who are supporting the president's position

00:04:29.700 that it is not soil, but actually your circumstances, your parents,

00:04:34.660 and if you are under the jurisdiction of the United States, which is going to be the thrust of John Sauer's arguments today,

00:04:42.160 he's the Solicitor General.

00:04:43.300 The line was forming early, early this morning for the open seats, and so it's very, very exciting here.

00:04:52.300 Not a lot of back and forth.

00:04:56.040 The police haven't had to separate the sides or anything like that because it's so overwhelmingly for the birthright citizen position.

00:05:04.540 They really know how to deliver a crowd, Steve.

00:05:08.160 Oh, yeah, of course.

00:05:09.680 Neil, just hang on for one second.

00:05:11.400 Stay right there outside the Supreme Court.

00:05:13.300 Mike Howe, a huge day today, a mass deportation coalition, huge story in Politico, if we can get that up.

00:05:20.780 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 case around the 14th Amendment and birthright citizenship.

00:05:42.400 talk to me your thoughts about that in the launch today of the mass deportation coalition

00:05:47.280 yeah so the birthright citizenship case is absolutely huge it'll be one of the biggest

00:05:52.800 you know legal victories i think we have seen and sometimes should it be secured

00:05:56.500 it's just common sense stuff everyone's laughing in america for having a policy that

00:06:00.520 you know people could just jump the border and have kids and then they're magically citizens

00:06:04.440 and then it turns into millions and millions in the u.s doesn't even know how many and they don't

00:06:08.760 keep track. And we're seeing China abuse it with birth tourism. It is just really suicidal policy.

00:06:15.140 And I applaud President Trump for staying the course and going there today to try to see this

00:06:20.900 one through. So hopefully he gets that victory. But from the mass deportation coalition, our plans

00:06:26.320 today are focused on rolling out this massive playbook we released this morning, which proves

00:06:31.560 that a million deportations- Mike, can you hang on for one second? I want to go live. John Sowers

00:06:38.020 is actually addressing the court.

00:06:39.180 Just hang on for one second.

00:06:40.280 Mike Cowell, head of the Mass Deportation Coalition.

00:06:42.300 Let's go live to the Supreme Court.

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00:11:23.900 supply today that's preparewithbannon.com do it today go check it out when congress used the term

00:11:31.960 not subject to any foreign power in the civil rights act of 1866 it rejected the british

00:11:37.340 conception of allegiance senator trumbull explained that subject to the jurisdiction

00:11:42.020 thereof. And the clause means not owing allegiance to anybody else. And in 1884, this court recognized

00:11:48.260 that subject to the jurisdiction means owing direct and immediate allegiance. The clause thus

00:11:54.900 does not extend citizenship to the children of temporary visa holders or illegal aliens.

00:12:00.260 Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United

00:12:05.140 States. For aliens, lawful domicile is the status that creates the requisite allegiance. And the

00:12:11.540 text of the clause presupposes domicile. For decades following the clause's adoption,

00:12:17.320 commentators recognized that the children of temporary visitors are not citizens,

00:12:22.200 and illegal aliens lack the legal capacity to establish domicile here.

00:12:28.900 Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of

00:12:33.200 modern nations. It demeans the priceless and profound gift of American citizenship.

00:12:39.000 It operates as a powerful pull factor for illegal immigration

00:12:42.380 and rewards illegal aliens who not only violate the immigration laws

00:12:46.840 but also jump in front of those who follow the rules.

00:12:50.440 It has spawned a sprawling industry of birth tourism

00:12:53.020 as uncounted thousands of foreigners from potentially hostile nations

00:12:56.780 have flocked to give birth in the United States in recent decades,

00:13:00.400 creating a whole generation of American citizens abroad

00:13:02.920 with no meaningful ties to the United States.

00:13:05.580 I welcome the court's questions.

00:13:06.980 General Sauer, before we get into the broader national issues, would you start with Dred

00:13:16.220 Scott?

00:13:17.220 Dred Scott was a case about state citizenship.

00:13:20.980 It was a diversity case.

00:13:25.140 And of course, we know what Chief Justice Taney did with that.

00:13:31.500 How does the citizenship clause respond specifically to Dred Scott and answers or changes or corrects

00:13:43.640 its answer as to citizenship?

00:13:46.600 The other point is the citizenship clause refers not just to national citizenship, but

00:13:54.280 also to state citizenship.

00:13:57.640 Are we to have two different definitions for those?

00:14:02.700 It's one word, citizens of the United States and citizens of the state wherein they reside.

00:14:12.140 As you begin, I'd like you to go back at the beginning and be more specific about the answer,

00:14:18.080 and I want you to explain whether or not those two definitions are the same or related.

00:14:27.640 state citizenship is based on. Thank you Justice Thomas. I'll maybe start by

00:14:33.560 addressing Dred Scott. You know as as you alluded to the fact Dred Scott you

00:14:37.680 know imposed one of the worst injustices in the history of this court and it led

00:14:42.620 to the outbreak of the Civil War. It's very clear in this court in all of its

00:14:46.060 early cases interpreting the 14th Amendment said you know the one

00:14:49.100 pervading purpose the main object of the citizenship clause is to overrule Dred

00:14:54.200 Scott and establish the citizenship of the freed slaves. If you look at the

00:14:57.240 debates in the congressional record and discussion surrounding the adoption of the

00:15:01.720 citizenship clause, what you see is a very clear understanding that the newly freed slaves and

00:15:07.160 their children have a relationship of domicile. They do not have a relationship to any foreign

00:15:12.840 power. For example, there's a comment where he says, look, people have been here for five

00:15:16.100 generations and clearly have no relationships to any foreign African potentate or have a

00:15:21.680 relationship of allegiance to the United States. And that reinforces our point that allegiance is

00:15:25.620 what the word jurisdiction means. It doesn't mean regulatory jurisdiction or sort of being

00:15:31.340 merely subject to the laws. They're talking and they're thinking about it in those debates about

00:15:35.940 allegiance. Now, as to your second question, if you look at the text of the clause, we believe

00:15:40.560 it says, you know, born or naturalized in the United States and subject to the jurisdiction

00:15:45.420 thereof are citizens of the United States and the states of which they reside. So there's a

00:15:50.180 constitutional guarantee that applies to both federal or national and state citizenship. And

00:15:56.040 the key point we make there is that that word reside, if you look at, for example, section 1473

00:16:01.020 of Justice Story's commentaries, was understood to mean domicile. So when they say subject to

00:16:06.320 the jurisdiction, and then they go on to say you're a citizen of the United States and the

00:16:10.900 state in which they reside, the very text of the clause itself presupposes that the citizen is

00:16:16.080 domiciled in the United States, if they're present in a state at all, they reside there. Reside means

00:16:20.480 domiciled in the Constitution. And we think that strongly supports our interpretation. It's textual

00:16:24.680 evidence of our domicile-based theory of jurisdiction. Well, starting with that theory,

00:16:31.000 you obviously put a lot of weight on subject to the jurisdiction thereof. But the examples you

00:16:35.820 give to support that strike me as very quirky. You know, children of ambassadors, children of

00:16:43.060 enemies during a hostile invasion, children on warships, and then you expand it to the whole

00:16:50.220 class of illegal aliens are here in the country. I'm not quite sure how you can get to that big

00:16:57.600 group from such tiny and sort of idiosyncratic examples. There are those sort of narrow exceptions

00:17:03.400 for ambassador foreign public ships. Tribal Indians is an enormous one that they were very

00:17:07.400 focused on in the debates as well. But what I do is I invite the court to look at the intervening

00:17:11.700 step, which is the enactment of the Civil Rights Act of 1866. And there they didn't say subject to

00:17:17.220 the jurisdiction thereof. There it says not subject to any foreign power. Now if you go back to

00:17:22.060 Blackstone and Calvin's case, they say it does not matter if you are subject to any foreign power. If

00:17:27.620 you are born in the king's domains, you have this indefeasible duty of allegiance to the king

00:17:32.320 at any time. So there's a clear repudiation in the Civil Rights Act. The Civil Rights Act is this

00:17:37.280 breakwater which makes it very, very clear that they are not thinking about allegiance in the

00:17:41.260 terms of like the British common law. They've adopted the Republican conception of allegiance.

00:17:46.320 So it's from not subject to any foreign power. And then the debates just a couple months later

00:17:50.380 make it very clear that they're recodifying the same conception. They were dissatisfied

00:17:54.420 with the potential ambiguity in the phrase Indians not taxed, and they adopted subject

00:17:58.440 to the jurisdiction thereof. And one of the strongest statements of this is Senator Trumbull's

00:18:02.780 statement that I quoted at the beginning where he says, he's asked, what does that mean,

00:18:05.640 subject to the jurisdiction thereof? And he says, it means not owing allegiance to anybody else.

00:18:10.020 that is what it means. And this court picked up on that in Elk against Wilkins when it says,

00:18:14.540 uses, you know, completely subject to the political jurisdiction, not very regulatory jurisdiction.

00:18:21.220 What do you do with Wong Kim Ark's quote of Daniel Webster, who said, independently of a residence

00:18:31.820 with intention to continue such residence, independently of any domiciliation,

00:18:39.340 independently of the taking of any oath of allegiance or renouncing any form of allegiance,

00:18:45.700 it is well known that by the public law, a non-citizen, while he is here in the United States,

00:18:53.340 owes obedience to this country's laws. Now, the examples that Wong Ar-Kim used as exceptions

00:19:01.920 are situations in which there was not temporary allegiance to the United States.

00:19:09.440 The children of foreign diplomats, whose only allegiance was to their foreign country,

00:19:18.400 and or occupied territory residents, including those citizens in Maine

00:19:24.700 who had been occupied by the British forces.

00:19:28.440 The U.S. had no control over them.

00:19:30.820 And the whole theory of the Indian tribes was similar.

00:19:33.960 The Indian tribes were analogized to foreign diplomats.

00:19:39.080 So what do we do with that?

00:19:40.880 I'd say two things.

00:19:41.840 First, as the Indian tribes, we think that's a case that strongly supports us.

00:19:45.160 Because, of course, by 1866 and 1868, there was strong understanding that the Indian tribes were subject to the United States' regulatory jurisdiction.

00:19:52.920 But not the same way that temporary foreigners were.

00:19:56.760 meaning there was a real debate going on whether the U.S. actually had jurisdiction over Indian tribes.

00:20:04.880 That's why our cases, for the longest time until that was finally settled, said,

00:20:12.120 absent some act of Congress, our laws don't apply, U.S. laws don't apply to Indians on Indian lands, correct?

00:20:20.940 I believe you look at the Rogers decision, for example, that we cite in our brief where it's where they say that they are subject to.

00:20:28.320 That's later. I'm talking at the time.

00:20:31.040 Yes, at the time. So as to 1817.

00:20:32.920 So what do you do during the debates of the 1866 Civil Rights Act and of the 14th Amendment with the entire discussion of the people who oppose the amendment,

00:20:43.200 who kept saying we can't pass it

00:20:45.500 because we're making citizens of gypsies

00:20:47.680 who have no allegiance to anybody

00:20:50.300 and we're going to make citizens of Chinese people

00:20:53.960 who can't be citizens

00:20:55.660 because we're not going to permit them to be citizens.

00:20:58.080 What do we do with those debates

00:20:59.620 and the fact that the proponents of both acts

00:21:03.600 said everyone who's born in the U.S. will be citizens?

00:21:09.000 first as that particular exchange page 2890 of the congressional record from 1866 senator cowan

00:21:16.000 gives this violently racist statement where he says that and what does he say right at the beginning

00:21:20.000 of that that sort of offensive speech he says he says we can't have children of gypsies children

00:21:24.320 of chinese immigrants we can't have them become citizens and he says quote have they any more

00:21:28.720 rights than a sojourner in the united states so he's trying to persuade the republicans to his

00:21:33.340 view by appealing to a common understanding that sojourners do not have children who become

00:21:39.220 citizens. So there's powerful evidence there that everybody understood this to, you know,

00:21:44.840 not sweep in the temporary sojourner. And that's why you see for 40, 50 years, you see every

00:21:50.280 commentator who addresses the specific question of temporary presence saying it's not covered by

00:21:54.660 the clause, including for decades after Wong Kim Ark. General, can I take you back to the

00:21:59.220 Chief Justice's question about the specific exceptions to birthright citizenship that

00:22:05.840 everybody seems to agree were recognized under the common law. And it brings up an important

00:22:13.120 principle about how we interpret the law. When particular problems pop up, lawmakers may enact

00:22:21.720 a general rule. When they do that, is the application of that general rule limited only

00:22:30.620 to the situations that they had in mind when they adopted the general rule, or do we say

00:22:39.060 they adopted a general rule they meant for that to apply to later applications that might

00:22:45.820 come up. Justice Scalia had an example that dealt with this situation. He imagined an old theft

00:22:53.780 statute that was enacted well before anybody conceived of a microwave oven, and then afterwards

00:23:00.360 someone is charged with the crime of stealing a microwave oven, and this fellow says, well,

00:23:06.120 I can't be convicted under this because the microwave oven didn't exist at that time.

00:23:10.880 And he dismissed that. There's a general rule there, and you apply it to future applications.

00:23:17.280 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.

00:23:25.820 So how do we deal with that situation when we have a general rule?

00:23:29.300 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 the phrase subject to the jurisdiction thereof.

00:23:36.000 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.

00:23:45.740 And as you pointed out, illegal immigration did not exist then.

00:23:48.260 Now, the problem of temporary visitors did exist, 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 that children of temporary visitors are not included.

00:24:03.000 Now, that logic, we say, it naturally extends. It's really an a fortiori case. If you have someone who enters illegally by the 1880s, there are restrictions on immigration. 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. You don't have the legal capacity to create domicile there.

00:24:22.160 But I think, General Sauer, that what you just said

00:24:24.600 suggests that you can't be arguing in the way Justice Alito

00:24:28.520 suggests, because most of your brief

00:24:30.920 is not about illegal aliens.

00:24:33.480 Most of your brief is about people

00:24:36.320 who are just temporarily in the country,

00:24:38.760 where there was quite clearly an experience of,

00:24:42.160 an understanding of, that there were going

00:24:44.160 to be temporary inhabitants.

00:24:46.920 And your whole theory of the case is built on that group.

00:24:50.640 You don't get to talking about undocumented persons until quite later and at much lesser,

00:24:58.240 you know, I think it's like 10 pages to three pages or something like that.

00:25:01.760 So you can't really be going with Justice Alito's theory.

00:25:05.360 You must be saying that there is a principle that developed, that was there in at the time

00:25:13.760 of the 14th Amendment.

00:25:15.040 Isn't that right?

00:25:16.280 We agree there's a principle there at the 14th Amendment.

00:25:18.880 it is the jurisdiction, means allegiance, the allegiance of a, and this is very strongly

00:25:24.300 reflected in the 19th century sources, the allegiance of an alien president in another

00:25:28.540 country is determined by domicile, and that goes back to the Venus and the Pizarro, it

00:25:33.220 goes through the Katza affair in 1853, it comes right up to Fong Yui Ting and Lao Al

00:25:39.680 Bu that are decided shortly before Wong Kim Ark, so that's the principle, that principle

00:25:44.600 clearly applies here, I also respectfully disagree.

00:25:46.360 Yeah, and I guess, Mr. General Sauer, you know, where does this principle come from?

00:25:53.880 Allegiance, domicile.

00:25:57.860 Allegiance, I think you point to a Lincoln funeral speech as your primary example of where this principle comes from.

00:26:04.860 It's certainly not what we think of when we think of the word jurisdiction.

00:26:09.220 And I appreciate that jurisdiction has many meanings.

00:26:11.680 But, you know, the first meaning is like if you're subject to jurisdiction, you're subject to the authority of.

00:26:18.700 One doesn't say, oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does.

00:26:26.120 So the text of the clause, I think, does not support you.

00:26:30.040 I think you're sort of looking for some more technical esoteric meaning.

00:26:34.820 And then the question comes, OK, if the text doesn't support you, if there's a real history of people using it that way,

00:26:41.100 But as far as I can tell, you know, at the time of the 14th, you're using some pretty obscure sources to get to this concept.

00:26:53.000 Well, take it straight from the framers' mouths.

00:26:55.360 So, for example, Senator Trumbull was asked, what does jurisdiction mean?

00:26:59.380 He means subject to jurisdiction.

00:27:01.100 He said, what does that mean?

00:27:01.820 He says it means not owing allegiance to anybody else.

00:27:05.080 He is the principal, a framer of the Civil Rights Act of 1866.

00:27:09.040 Representative Bigham, who's the framer of the 14th Amendment,

00:27:12.200 has asked what does it mean in the congressional record at page 1291.

00:27:15.260 He says, within the jurisdiction of the United States of parents

00:27:17.840 not owing allegiance to any foreign sovereignty.

00:27:21.160 And we've cited many, many examples where the congressional debates reflect that.

00:27:25.580 Then you refer to the oration of George Bancroft.

00:27:27.500 That's one of probably 16 sources, but there's at least 13,

00:27:30.960 counting that one in the 12 treaties as we cite it, pages 26 to 28 of our brief.

00:27:35.120 There is over a dozen sources that specifically address temporary sojourners in the five decades after the enactment of the amendment.

00:27:43.300 Every single one of them says, well, temporary sojourners, their children are not included, including for two decades after Wong Kim Ark.

00:27:49.520 If domicile is the key linchpin to your argument, and I take it that it is, do we look at how domicile was understood in 1868, or do we look at it and how it's understood today in context of the INA?

00:28:06.520 The 1868, understanding that I'm not aware of a strong difference between those.

00:28:10.500 Well, here's where I'm going with it. I'm just working within your argument for a moment.

00:28:14.620 today you can point to laws against

00:28:19.920 immigration that are much more restrictive than they were

00:28:24.040 in 1860. We really didn't have laws like that we do today

00:28:27.820 until maybe 1880. So if somebody showed up here in

00:28:31.780 1868 and established domicile

00:28:34.740 that was perfectly fine without respect to any

00:28:38.980 immigration laws. There they were. And so why wouldn't we

00:28:43.420 even if we were to apply your own test, come to the conclusion that the fact that someone might

00:28:49.020 be illegal is immaterial. I would first cite Wong Kim Ark on that point, because Wong Kim Ark says

00:28:55.820 you're... Well, I'm not sure how much you want to rely on Wong Kim Ark. But that state, there is a

00:28:59.780 statement in there that says, so long as they are permitted to be here. So Wong Kim Ark, keep in

00:29:04.160 mind that by the time they decide Wong Kim Ark in 1898... I know, but that's 1898. Now I'm looking

00:29:09.280 at 1868, you're telling me is when I should look, and the test for domicile, and the stuff

00:29:14.720 you have about unlawfully present, it's like Roman law sources you're going to.

00:29:19.720 First and second restatements as well, and decisions of discord.

00:29:24.480 So it wouldn't be the INA that would control whether you're capable of having domicile.

00:29:29.800 It would be whatever the law was in 1868.

00:29:33.180 Well, I think that this is addressed by my exchange with Justice Alito from earlier,

00:29:37.160 which is that this concept, jurisdiction, baking in allegiance and domicile is applied to.

00:29:42.740 So Congress could continually restrict who may lawfully be present more and more,

00:29:47.980 and you'd say that would be incorporated into it,

00:29:50.660 even though you're telling us to apply the original meaning of 1868.

00:29:53.740 The original meaning of domicile.

00:29:55.620 And so the question is, is there any argument that the framers intended to preclude Congress

00:29:59.680 from dictating who can and who cannot establish a lawful domicile here?

00:30:03.540 I don't see any evidence of that in the congressional record, so it's a natural extension.

00:30:06.560 Whose domicile matters? I mean, it's not the child, obviously. It's the parents you'd have

00:30:13.220 us focus on. And, you know, what if, is it the husband? Is it the wife? What if they're unmarried?

00:30:18.780 Whose domicile? Well, in the executive order, it draws a distinction between the mother and

00:30:24.060 the father. That's really the mother's domicile. I think that would matter. Well, but 1868 matters,

00:30:28.500 you're telling us. So what's the answer? The 1868 sources talk about parental,

00:30:33.540 So 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.

00:30:38.840 And how are we going to determine domicile?

00:30:40.780 I mean, would we use contemporary sources on what qualifies as domicile in a state?

00:30:46.160 Or do we look in 1868 and do we have to do this for every single person?

00:30:50.040 And again, I don't see a strong distinction between those because, of course, domicile is a high level concept has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently.

00:30:59.340 that domicile, when you've come to a new nation, you say, I'm here to stay, you become part of

00:31:04.340 their political community, and you become akin to a citizen. And that's reflected very strongly

00:31:08.740 in the case I cited before. And just to circle back to Justice Kagan's point,

00:31:12.860 it's striking that in none of the debates do we have parents discussed. We have the child's

00:31:19.740 citizenship and the focus of causes on the child, not on the parents. And you don't see domicile

00:31:26.080 mentioned in the debates.

00:31:28.580 The absence is striking.

00:31:30.360 I think the 19th century sources would say

00:31:32.060 a newborn child lacks the capacity

00:31:34.400 to form a domicile, so they're imputed

00:31:36.140 the domicile of their parents. I don't think they would have seen

00:31:38.280 a distinction between children and parents.

00:31:40.400 I point out that their position,

00:31:42.340 like ours, is forced to look at the domicile

00:31:44.340 of the parents because if you look at the exceptions that they accept

00:31:46.520 like tribal Indians and so forth.

00:31:48.560 I'm talking about in the debates

00:31:49.500 over the 14th Amendment and the

00:31:52.280 Civil Rights Act, it's striking that these

00:31:54.240 concepts aren't discussed in them?

00:31:58.000 I think domicile is discussed.

00:32:00.060 I mean, it's brought up in many...

00:32:02.220 Allegiance, jurisdiction, complete

00:32:04.200 jurisdiction.

00:32:06.320 Well, I mean, here's just a few examples.

00:32:08.300 Page 1679 of the Congressional Record,

00:32:10.580 President Johnson vetoes the first

00:32:12.260 version of the Civil Rights Act, and he says,

00:32:13.820 I can't sign this because it would extend

00:32:15.840 citizenship to the children

00:32:18.360 of, quote, all domiciled aliens

00:32:20.200 and foreigners, even if not naturalized.

00:32:22.220 And you have all the other sources that we cited that say,

00:32:24.240 And this is a deeply rooted 19th century understanding.

00:32:27.740 It's reflected in the Venus.

00:32:29.000 It's reflected in the Pizarro in 1814 and 1817.

00:32:31.700 It carries through the 19th century,

00:32:33.640 and this court is talking about it in 1892 and 1893

00:32:37.240 when it's discussing the Chinese Exclusion Acts.

00:32:39.260 Domicile is the key concept that creates allegiance.

00:32:43.400 General, you said in your reply brief

00:32:47.340 that the children of slaves who were brought here unlawfully,

00:32:51.720 in defiance of laws forbidding the slave trade

00:32:56.900 would, in fact, be citizens.

00:33:00.020 And we can imagine that their parents

00:33:01.720 were not only brought here in violation of United States law,

00:33:04.840 but were here against their will,

00:33:06.360 and so maybe felt allegiance to the countries

00:33:08.440 where they were from.

00:33:09.920 And you say that the purpose of the 14th Amendment

00:33:12.540 was to put all slaves on equal footing,

00:33:14.980 newly freed slaves on equal footing,

00:33:16.480 and so they would be citizens.

00:33:18.600 But that's not textual.

00:33:20.240 So how do you get there?

00:33:21.460 You say it in just a few sentences, so can you elaborate?

00:33:24.020 Sure.

00:33:24.560 I think if you look at the 19th century sources, what you see is that even though their entry

00:33:28.320 may have been unlawful, 19th century antebellum law never treated their presence as unlawful.

00:33:33.360 In fact, quite the opposite.

00:33:34.220 One of the amici, in fact, points to a Mississippi statute, which probably is replicated throughout

00:33:38.740 the South before the Civil War, that says slaves in Mississippi have an indefeasible

00:33:44.400 domicile in Mississippi.

00:33:46.180 In other words, even if they run away, if they get away, Mississippi says, nope, you

00:33:49.660 still live here.

00:33:50.260 Right. 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.

00:33:58.200 Because actually, U.S. law, even if they were brought in illegally through an illegal slave trade, once they were there by...

00:34:05.760 Well, their intent is to return as soon as they can, let's say.

00:34:09.040 So they're here, they're resident, and maybe under your theory, I mean, which says, well, lawfulness for a different purpose.

00:34:14.820 But they're here, they're resident. Let's take your assumption that they're not here unlawfully.

00:34:19.280 But let's say they don't have an intent to stay.

00:34:20.720 They want to escape and go back the second they can.

00:34:23.300 Are they domiciled?

00:34:24.820 Under the 19th century law, I mean, I think this is the flip side of the hypothetical

00:34:28.580 that we talked about earlier.

00:34:30.000 Under 19th century law, they are treated as domiciled in the United States, so it would

00:34:33.520 be astonishing.

00:34:33.980 And the debates in the congressional floor talk about not this specific case, but they

00:34:37.760 say, look, slaves who have been forced to come here and have been here are lawfully

00:34:42.620 domiciled here.

00:34:43.540 I mean, they don't use the way it's domiciled like they have.

00:34:45.620 They use allegiance.

00:34:46.280 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 potentate, and therefore they're—

00:34:53.620 How would that apply to the children of illegally trafficked people today? Would the same reasoning apply?

00:35:00.940 It would turn on whether the parents are lawfully domiciled in the United States.

00:35:06.400 So if they're brought in illegally, but then they choose to remain and they want to remain

00:35:11.760 and they're domiciled, you would say that their lawful presence is not dictated by whether

00:35:17.320 they were brought here lawfully or not.

00:35:18.960 And that's different from someone who, say, crosses the border unlawfully.

00:35:22.600 Yeah, I think it would turn on whether their presence is lawful.

00:35:25.680 General, can I...

00:35:26.520 In other words, obviously, there may be many other important things that could be done

00:35:30.500 to assist people like that.

00:35:31.700 The question is, if they give birth to someone in the United States, that person naturally

00:35:34.340 a citizen, that would turn, based on the original public meaning of the clause, on the lawfulness

00:35:38.800 of their presence. Are they domiciled? General, can I ask you a question? To follow up on what

00:35:44.460 Justice Gorsuch was exploring with you with respect to domicile, did I understand you to say

00:35:50.180 that domicile is going to be eventually or is controlled by Congress? Who is domiciled? I'm

00:35:57.100 struggling to figure out who is domiciled in your argument. The domiciliaries are people who are

00:36:02.540 lawfully present and have an intent to remain permanently. So that's a kind of black letter

00:36:06.260 understanding of domicile. Now, Congress can dictate that certain classes of people,

00:36:11.260 legal entrants and so forth, cannot lawfully, lack the legal capacity to form a legally binding

00:36:16.880 domicile. But if that's so, then doesn't it make the domicile for the purpose of the 14th

00:36:22.660 Amendment turn then ultimately on Congress's will in a way that the framers did not intend?

00:36:28.980 I mean, my understanding was the framers put this citizenship clause into the Constitution

00:36:34.860 to prevent future Congresses from being able to affect citizenship in this way.

00:36:42.160 Sure.

00:36:44.080 Very briefly, no, I don't think so, because it is up to the alien whether or not they

00:36:50.480 want to be domiciled here.

00:36:51.920 Now, there may be collateral consequences.

00:36:53.460 You said Congress can make determinations as to who counts as being domiciled here.

00:36:59.820 So if that's true, then it ultimately would impact, in your theory,

00:37:04.460 whether or not this person can claim that they have citizenship for 14th Amendment purposes

00:37:09.420 based on Congress's determination.

00:37:13.240 And I just thought that's what the 14th Amendment was trying to get away from.

00:37:18.080 Yes, please.

00:37:19.200 Very briefly, I just point you to the discussion in Professor Worman's amicus brief where he talks about this is not a new problem.

00:37:27.380 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.

00:37:34.720 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.

00:37:39.820 Thank you, counsel. You mentioned in your briefing and also this morning the problem of birth tourism.

00:37:49.200 Do you have any information about how common that is or how significant a problem it is?

00:37:55.940 It's a great question.

00:37:56.960 No one knows for sure.

00:37:57.960 There's a March 9th letter from a number of members of Congress to DHS saying, do we have any information about this?

00:38:03.500 The media reports indicate estimates could be over a million or 1.5 million from the People's Republic of China alone.

00:38:11.680 The congressional report that we cited in our brief talks about certain hotspots like Russian elites coming to Miami through these birth tourism companies.

00:38:20.340 And here's a fact about it that I think is striking.

00:38:23.940 Media reported as early as 2015 that based on Chinese media reports,

00:38:28.560 there are 500 birth tourism companies in the People's Republic of China

00:38:33.960 whose business is to bring people here to give birth and return to that nation.

00:38:39.780 Analysis before us?

00:38:41.060 I think it's – I'd quote what Justice Scalia said in his Hamdan dissent where they have – like their interpretation has these implications that could not possibly have been approved by the 19th century framers of this amendment.

00:38:54.200 I think that shows that they've made a mess – their interpretation has made a mess of the provision.

00:38:59.000 Well, it certainly wasn't a problem in the 19th century.

00:39:02.460 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.

00:39:10.460 Well, it's a new world. It's the same constitution.

00:39:14.100 It is. 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.

00:39:25.180 He said that about statutory interpretation. I think the same principle applies here, and I think we quote that in our brief.

00:39:29.660 Thank you. Justice Thomas, anything further?

00:39:31.120 General, you're getting a lot of questions about immigration, and they hark it back, of course, to citizenship, which is defined in or set out in the 14th Amendment.

00:39:44.880 How much of the debates around the 14th Amendment had anything to do with immigration?

00:39:53.240 I think that the principal focus of those debates has to do really not with immigrants, but with the Indian tribes.

00:40:01.000 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.

00:40:20.380 So I think that's what they focus on.

00:40:26.700 We draw an analogy to that, too, the issue of temporary sojourners.

00:40:30.460 But there are mentions of temporary sojourning multiple places in the election.

00:40:39.680 Justice Sotomayor brought up Wong King-Ark.

00:40:44.760 There was no question in that case about domicile.

00:40:49.600 was there. I disagree. The court says at the very beginning of its opinion, here are the accepted

00:40:55.300 facts. These are lawfully domiciled here. When it states the question presented, it talks about

00:41:00.060 domicile. When it recites the legal principle at page 693, it says domicile three times. And at

00:41:05.080 page 705 at the end of the opinion, it says here's the single question we've decided. We've decided

00:41:09.400 that Chinese immigrants with a permanent domicile in residence here are followed within the rule

00:41:15.120 birthright citizenship.

00:41:17.340 Justice Alito.

00:41:19.740 Under the minimum definition of domicile, which I think existed in 1868 and continues

00:41:26.400 to exist today, a person's domicile is the place where he or she intends to make a permanent

00:41:34.980 home.

00:41:35.980 Now, normally, you would think that a person who is subject to arrest at any time and removal

00:41:43.700 could not establish a domicile.

00:41:46.460 But we have an unusual situation here because our immigration laws have been ineffectively

00:41:54.540 and in some instances unenthusiastically enforced by federal officials.

00:42:04.140 So there are people who are subject to removal at any time if they are apprehended and they

00:42:12.640 go through the proper procedures.

00:42:15.520 But they have, in their minds, made a permanent home here and have established roots.

00:42:25.040 And that raises a humanitarian problem.

00:42:27.560 And I wonder if you could address that.

00:42:30.520 If I may, one legal and one humanitarian, the legal point is if you look at those cases,

00:42:35.200 for example, Carson against Reed, Park against Barr, this court's decision is in Elkins and

00:42:39.160 Toll Against Moreno, they talk about the legal capacity to create a domicile, excluding someone

00:42:46.040 who may have the subjective intent, which otherwise would be determinative, as being

00:42:50.700 excluded.

00:42:51.700 On the humanitarian point, I would point out, as I said at the beginning, Justice Alito,

00:42:55.140 that the United States rule of nearly unrestricted birthright citizenship is an outlier among

00:43:00.140 modern nations.

00:43:01.140 It's a very small minority of nations that have that rule.

00:43:04.300 For example, every nation in Europe has a different rule, and the notion that they have

00:43:09.680 a huge humanitarian crisis as a result of not having unrestricted birthright citizenship

00:43:14.300 I don't think is a strong argument.

00:43:16.480 And I point out, obviously, for reliance-related reasons, this executive order applies only

00:43:22.420 prospectively, and we ask the court to rule only prospectively.

00:43:27.740 Justice Sotomayor.

00:43:28.740 I agree with you what the European nation's rule is, but England was always different, wasn't it?

00:43:38.100 Not until 1983 it changed.

00:43:40.700 That's not quite true.

00:43:42.880 The Wong Kim Ark does a wonderful job of laying out the English rule.

00:43:49.340 And you claim it was different, but there isn't any treatises or scholars who say it's different.

00:43:55.800 English rule was always by birth.

00:43:57.660 Other people were not by, other countries were not by birth.

00:44:01.440 Let me just go to the implications of what you're asking us to do.

00:44:06.500 You are asking us to overrule Wang Kim Ark.

00:44:11.840 Well, there, Wang Kim Ark's parents were domiciled in the U.S., but they owed loyalty to China.

00:44:20.440 They eventually returned to China.

00:44:22.280 So they didn't have a primary allegiance to the United States.

00:44:27.660 So you're not asking that. Are you asking us to overrule then our cases, one of

00:44:35.540 which said that a child of illegal aliens could be, was a citizen? You're asking us

00:44:47.500 to overrule that? No, first of all, we're not asking you over to rule Wong Kim Ark.

00:44:52.500 We agree with the holding of Wong Kim Ark in much of the reasoning. And then as

00:44:56.980 As for those later cases starting in 1966 where the court makes sort of unreasoned references

00:45:02.420 to this issue.

00:45:03.420 Wait a minute.

00:45:04.420 In top view loose, the respondent unlawfully overstayed her visa and gave birth to a child

00:45:10.260 here.

00:45:11.260 The court, Harlan II, wrote, the child is of course an American citizen.

00:45:16.580 That person wasn't domiciled here lawfully.

00:45:19.840 So you're asking us to overrule that case?

00:45:21.920 I wouldn't say we're asking you to overrule.

00:45:23.540 We think that's similar to a drive-by jurisdictional ruling where there's a simple statement that's

00:45:27.220 not debated, there's no further analysis of it.

00:45:29.700 There's really an assumption there, and we think that's similar to cases where the court

00:45:33.200 just assumes jurisdiction without discussing it.

00:45:34.940 When we ruled in Trin that Indians could not become citizens, the government then after

00:45:43.300 began to unnaturalize many Indians who had been sworn in as citizens.

00:45:49.160 You asked us to concentrate only on the prospective nature of the citizen's order, but the logic

00:45:57.700 of your position, if accepted, is that this president or the next president or a congress

00:46:05.680 or someone else could decide that it shouldn't be prospective.

00:46:10.580 There would be nothing limiting that, according to your theory.

00:46:14.900 If as we asked, the court confines its ruling to prospective relief only, which it did

00:46:18.900 No, I'm saying to you, don't, yeah, that's what you're asking us for relief right now.

00:46:23.200 I'm asking whether the logic of your theory would permit what happened after the court's decision in Trin,

00:46:34.140 that the government could move to unnaturalize people who were born here of illegal residents.

00:46:43.100 No, we believe the court should do what it did in sessions against Morales Santana,

00:46:46.860 Now, where there was a ruling that would have deprived people who are already citizens of citizenship,

00:46:52.320 and the court said this applies prospectively only, and we think that's the appropriate course here.

00:46:55.900 But that's not what we did in Trin.

00:46:59.160 We think that Sessions provides the proper course here, and that's what we're asking.

00:47:03.060 We are not asking for any retroactive relief.

00:47:06.020 Justice Kagan.

00:47:08.100 General, I think even your brief concedes that the position you're taking now is a revisionist one

00:47:15.700 with respect to a substantial part of our history.

00:47:21.300 And I think that that's in large part because of Wong Kim Ark

00:47:25.460 and the way people have read that case,

00:47:27.820 which of course was in the late 19th century,

00:47:30.760 and have read it ever since then.

00:47:33.140 And what that case suggests is, I mean, there's a very clear rationale.

00:47:37.740 You say, oh, it says the word domicile a bunch of times, which it does.

00:47:41.900 It's a long opinion. It says a lot of things.

00:47:44.540 But the rationale of the case is really quite clear.

00:47:48.600 It says there was this common law tradition.

00:47:50.800 It came from England.

00:47:52.320 We know what it was.

00:47:53.660 Everybody got citizenship by birth, except for a few discrete categories,

00:47:58.360 which were the ones that the Chief Justice mentioned at the beginning.

00:48:02.320 And that tradition carried over to the United States.

00:48:06.040 And then what the 14th Amendment did was accept that tradition

00:48:10.180 and not attempt to place any limitations on it.

00:48:15.340 And so that was the clear rationale,

00:48:17.200 a clear rationale that is diametrically different from your rationale.

00:48:22.320 And everybody took Wonka Mark to say that

00:48:25.660 and to say that as a result of that, of course,

00:48:28.960 birthright citizenship was the rule.

00:48:30.900 And I think everybody has believed that for a long, long time.

00:48:35.260 And I guess my question is this.

00:48:36.840 You have a story about the reasons why we should go back

00:48:43.140 to what you view as the original meaning.

00:48:46.260 And given the long history of this country's understanding

00:48:49.840 about birthright citizenship, what would it take,

00:48:54.740 what do you think it should take to accept that story

00:48:57.900 in terms of the magnitude of the evidence

00:49:03.280 that we would need to see in order to accept this revisionist theory

00:49:09.200 and in order to change what I think people have thought the rule was for more than a century.

00:49:16.440 Let me make two points in response to that, one historical and one legal.

00:49:19.960 Historical point, I disagree with the way you've characterized the understanding of Wong Kim Ark,

00:49:24.320 and I would point to something that's emphasized in their amici's briefs,

00:49:28.160 which is in 1921, Richard Flournoy,

00:49:31.520 who becomes a senior State Department official

00:49:33.980 in the Roosevelt administration

00:49:35.160 and pushes their theory as to temporary sojourners,

00:49:38.440 writes a law review article in 1921 where he says,

00:49:41.920 I think the children of temporary visitors

00:49:44.140 should be citizens.

00:49:45.220 But he admits that is not the understanding of Wonka Mark.

00:49:47.760 He admits Wonka Mark did not hold that.

00:49:49.600 And he admits that there's an array of authorities

00:49:52.040 that go against him.

00:49:53.000 He talks about careful and reliable high authorities.

00:49:56.320 And that's referring to the consensus

00:49:57.740 that we point out in pages 26, 28 of our brief,

00:50:00.240 we've got 12 treatises from 1881 to 1922

00:50:03.540 that all say, including for decades after Wong and Mark,

00:50:06.020 that say children of temporary sojourners are not included.

00:50:08.860 What happens between 1921 and the 1930s?

00:50:11.640 Well, Mr. Flournoy became a senior State Department official

00:50:14.520 and he adopted that as the policy

00:50:16.600 of the Roosevelt administration.

00:50:18.180 So their argument is basically saying

00:50:19.500 there wasn't this consensus going back to 1898.

00:50:22.180 The consensus, as their own author admits,

00:50:24.000 goes entirely in the opposite direction.

00:50:25.900 For 50 years, right, for 50 years from the framing of the clause through the 1920s, maybe

00:50:31.260 60 years, the general understanding when it comes to what's at issue here and was not

00:50:35.620 an issue in Long Kim Arc is the children of temporary visitors do not become citizens

00:50:40.060 under the clause.

00:50:41.960 And then the legal point, you referred to this sort of concept of temporary local allegiance

00:50:46.900 and they rely on the Schooner Exchange, this theory that you've got temporary local allegiance.

00:50:51.240 But if you actually look at page 572 of the congressional record, right at the beginning,

00:50:55.880 the Civil Rights Act, Senator Trumbull says, I said not subject to any foreign power. I wanted

00:51:02.000 to say born in the United States and, you know, owing allegiance to the United States, but I was

00:51:08.040 aware that there's a quote, a sort of allegiance from persons temporarily resident in the United

00:51:12.560 States whom we have no right to make citizens. So Senator Trumbull says the reason I haven't

00:51:17.200 adopted the language and meaning that they say should be packed into these provisions

00:51:21.200 is that everybody knows that the children of temporary visitors should not be citizens.

00:51:25.880 Thank you, General.

00:51:27.780 Mr. Skorsuch?

00:51:28.900 Just to follow up on that point, General,

00:51:31.080 one interesting counterpoint about the understanding of Wong Kim Ark

00:51:35.560 that followed with respect to temporary sojourners.

00:51:38.440 And I take you've got your well-taken points.

00:51:42.520 But there was, of course, John Marshall Harlan,

00:51:45.560 the great dissenter who descended in Wong Kim Ark

00:51:48.540 and later gave a bunch of lectures.

00:51:52.200 And he posed the question about the sojourners,

00:51:55.020 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.

00:52:02.860 Now back in England, is that child a citizen of the United States born of the jurisdiction thereof by mere accident of birth?

00:52:10.020 And he says, under 1K mark, he is.

00:52:14.580 And he continues, I was one of the minority and of course I was wrong.

00:52:19.840 Now, I'm sure that was tongue-in-cheek, but what do you do with that?

00:52:26.340 I draw the—I mean, I say two things in response to that.

00:52:28.980 First of all, he gave a speech, but we have 12 uncontradicted treatises that say the opposite,

00:52:33.600 that that is not what Wong Kim Ark means and that's not the meaning of the clause.

00:52:37.120 But also, I make a more fundamental point, when you're looking at Wong Kim Ark, one

00:52:40.680 of the—the dissent has this dominant theme that—really, like, you can't be doing this

00:52:46.520 because we all agree or it's obvious that the children of temporary visitors do not become

00:52:53.320 citizens. And how does the majority opinion address that? It says domicile three times when

00:52:58.180 it recites the legal rule. It says permanent residence and domicile when it decides the

00:53:02.120 holding. So the court should be bound by what it says. This is what we're deciding. And again,

00:53:06.300 on page 75, it says this is the single question. Now, there's been a lot of discussion up to that

00:53:10.260 point. But at the very end, they said the single question we've decided is the citizenship says

00:53:15.020 of the children of Chinese immigrants with a permanent residence and domicile in the United

00:53:20.360 States. Do you think Native Americans today are birthright citizens under your test and under

00:53:25.820 your friend's test? I think so. I mean, obviously they've been granted citizenship by statute.

00:53:31.420 Put aside the statute. Do you think they're birthright citizens? No, I think the clear

00:53:34.920 understanding that everybody agrees in the congressional debates is that the children

00:53:38.000 of tribal Indians are not birthright citizens. I understand that's what they said, but your test

00:53:42.640 is the domicile of the parents, and that would be the test you'd have us apply today, right?

00:53:49.800 Yes, yes. So if a tribal Indian, for example, gives up allegiance to...

00:53:54.720 Born today, birthright citizens.

00:53:58.340 I think so, on our test. They're lawfully domiciled here.

00:54:02.240 I have to think that through, but that's my reaction.

00:54:05.540 I'll take the yes, that's all right.

00:54:06.840 And then I just want to ask you quickly about the INA adopted in 1940 and 1952.

00:54:14.520 It uses the same term as the Citizenship Clause, and one might have a pretty good argument.

00:54:20.600 I'm sure you've got some arguments along just these lines that it should be understood

00:54:24.480 to mean whatever it meant in 1868, but there was a lot of water over the dam between those

00:54:30.320 two things, and as your brief points out by the Roosevelt administration, there's a pretty

00:54:36.380 strong jus soli move, that is to say that the thin concept of jurisdiction power over

00:54:45.540 is enough, a broader understanding of birthright, would there be an argument for reading that

00:54:51.920 statute under its original plain meaning at the time, 1940, 1952, to perhaps have a different

00:54:58.980 meaning than the Constitution?

00:55:01.420 We don't think that's the best interpretation, I give two reasons.

00:55:04.580 One is, it would be very surprising if a statute that says exactly the constitutional phrase

00:55:09.300 subject of the jurisdiction thereof were interpreted to mean something totally different or to

00:55:12.420 ossify a then-current misunderstanding of the clause.

00:55:15.780 We think that the best analogy here is probably state long-arm statutes.

00:55:20.140 Take a sort of non-controversial example.

00:55:22.180 State long-arm statutes routinely say we're going to exercise personal jurisdiction to

00:55:25.760 the extent of due process.

00:55:27.160 It takes the constitutional standard and it puts it in the statute, and nobody thinks

00:55:31.460 that those ossify, you know, are limited to the precedent, this court's precedence at

00:55:35.920 the time they are enacted.

00:55:37.120 Everyone thinks that that phrase, due process, incorporates, you know, the developing law

00:55:42.200 of due process in minimum context and so forth, including from this court.

00:55:45.700 So we think that's the best analogy.

00:55:47.540 When you're looking at the constitutional phrase itself and you take it out of a freighted

00:55:52.260 context, the natural interpretation is to say this means, this reflects the objective

00:55:56.840 meaning of the Constitution.

00:55:58.220 the objective meeting of the Constitution is its original public meeting in 1866.

00:56:01.580 Do you see any notable counterpoints to that argument?

00:56:05.540 I'm sure there are arguments on the other side.

00:56:07.200 We've addressed them in their brief.

00:56:08.440 So really, at the end of the day, then, this is a straight-up constitutional ruling you

00:56:13.540 want from this court, win, lose, or draw?

00:56:16.160 Yeah, we think that the statute of the Constitution means the same thing.

00:56:19.560 If the court disagrees, obviously, we'd prefer an adverse ruling if the court's going to

00:56:22.780 do that on a statutory basis than a constitutional basis.

00:56:25.600 But you just disavowed that in your responses to me by saying that's not an available option is the way I understood it.

00:56:33.020 Yes, the court would have to disagree with our statutory position, which is that it means the same thing as the Constitution.

00:56:37.660 But if the court were to do that, then the natural course would probably be to rule on statutory grounds alone.

00:56:41.960 Now, we think they mean the same thing, and we've got arguments for that, including, I think, the analogy I just referenced.

00:56:46.560 Thank you.

00:56:47.720 Justice Kavanaugh.

00:56:48.360 General, how should we think about the text of the 14th Amendment, subject to the jurisdiction

00:56:53.700 thereof, as distinct from the different language of the Civil Rights Act of 1866, which refers,

00:57:00.560 as you know, to persons not subject to any foreign power?

00:57:04.820 Those texts are, on their face, different in the history that Justice Kagan referred

00:57:12.180 to might have developed quite a bit differently if the 14th Amendment's text had used the

00:57:17.060 phrase that was in the Civil Rights Act.

00:57:20.000 That's an excellent point, and this court has held in multiple cases, heard against

00:57:24.420 Hodge and general building contractors, has recognized that their intended and they did

00:57:28.980 mean the same thing.

00:57:29.980 And that's powerfully reinforced by the congressional debates where you, really what they're discussing

00:57:34.360 is they said they were dissatisfied with the language in the Civil Rights Act because the

00:57:38.220 phrase, Indians not taxed, they thought was ambiguous.

00:57:41.220 And so they switched to the affirmative statement as opposed to the negative statement, the

00:57:44.640 affirmative stage, it's subject to the jurisdiction thereof, but there's express statements in

00:57:47.980 the congressional record essentially that we're doing the same thing, and that is what

00:57:51.220 this court's case law has reflected.

00:57:53.140 Why didn't they say the same thing?

00:57:55.020 Again, it appears they preferred the sort of positive formulation, subject to the jurisdiction

00:58:00.200 thereof, as opposed to not subject to any foreign power.

00:58:02.560 And again, there's a deep concern and lengthy discussion of the potential ambiguity in the

00:58:06.700 Civil Rights Act.

00:58:07.700 They wanted to eliminate an ambiguity, but do the same thing, and I think that that's

00:58:11.460 very strongly reflected in those debates.

00:58:13.600 By the time of the 1940 and 1952 congressional actions where Congress repeats subject to

00:58:22.700 the jurisdiction thereof, given Juan Kim Mark, one might have expected Congress to use a

00:58:29.420 different phrase if it wanted to try to disagree with Juan Kim Mark on what the scope of birthright

00:58:38.940 citizenship or the scope of citizenship should be and yet Congress repeats that

00:58:44.880 same language knowing what the interpretation had been. So how are we to

00:58:49.440 think about that? I think baked into that question is an understanding I think

00:58:53.160 that was reflected in Justice Kagan's earlier question that everybody

00:58:55.980 understood that Wong Kim Ark meant that in the history I talked about I think

00:58:59.720 refutes that. Really there's a consensus that goes our way for decades and

00:59:03.600 decades after the adoption of the amendment and after Wong Kim Ark on the

00:59:08.100 specific question of the children of temporary visitors, and it's really not until, and again,

00:59:12.580 their author in 1921 is saying, hey, the other side is the consensus. I'm sorry. Sorry, go ahead.

00:59:18.660 But there's executive branch interpretations and others, and if you're in Congress in 1940 and 1952

00:59:25.620 and you want to limit the scope of Wong Kim Ark or to eliminate ambiguity, why do you

00:59:33.780 repeat the same language rather than choosing something different. For example, you could use

00:59:39.220 the language from the Civil Rights Act of 1866 or some similar formulation if your idea in 1940 and

00:59:46.580 1952 was to not have ambiguity or not have an overly broad scope. I think if you look at the

00:59:55.940 structure of that statute, where it's 1401A and then B through H, and it says these are the people

01:00:01.860 who are entitled to birthright citizenship. A is the constitutional standard, and then B through H

01:00:07.060 are all the categories that Congress has super added to that. I think the natural inference

01:00:11.380 is that Congress is codifying, which it was consciously doing in 1941, pulling all the

01:00:15.380 naturalization rules and immigration rules together into one statute. It said, you go to one place,

01:00:20.100 here's who is a birthright citizen. A, those who are guaranteed that right by the citizenship clause,

01:00:25.380 and B through H are the ones that Congress has added through its naturalization power.

01:00:28.740 So that inference to me says, A, is merely, it's not trying to change or alter the constitutional

01:00:34.720 standard, just saying, hey, the baseline isn't what the Constitution says, and we codify

01:00:38.380 that, and then we move on to the new categories.

01:00:40.480 Of what relevance, if any, do you think Section 5 of the 14th Amendment has here that gives

01:00:47.620 Congress the power to enforce the article, the 14th Amendment, by appropriate legislation?

01:00:54.200 Does that give Congress room here, or do you not think so?

01:00:59.460 I do think that a ruling in our favor would leave room for Congress.

01:01:03.280 I don't think you'd have to rely on Section 5.

01:01:05.060 I think that Congress has its own inherent power to grant citizenship by statute.

01:01:09.200 So if the court were to rule in our favor for the classes of individuals that they say should be covered,

01:01:13.660 Congress has the latitude to do that.

01:01:15.140 How much room do you think Section 5 gives, if any, and it may not be any,

01:01:19.200 Congress to interpret the phrase subject to the jurisdiction thereof or to define that.

01:01:26.580 Does it does that is that relevant at all? It's a great question and I'm thinking about for the

01:01:30.600 first time. I assume it would be governed by the congruence and proportionality test from this

01:01:33.860 court's case law. How that would apply here I don't know and I don't think it's presented because

01:01:37.700 our contention is that the statute means exactly the same thing. If anything is congruent and

01:01:41.100 proportional it's that and I think the court held that in the United States against Georgia.

01:01:45.000 You've mentioned several times the practices of other countries,

01:01:49.640 and that's obviously, as a policy matter, supports what you're arguing here.

01:01:56.440 But obviously we try to interpret American law with American precedent based on American history.

01:02:04.960 That's certainly what I try to do and I think you try to do.

01:02:07.180 And so why should we be thinking about, even though as a policy matter I get the point,

01:02:12.560 thinking about, gee, European countries don't have this, or most other countries, many other

01:02:18.620 countries in the world don't have this, doesn't that, I guess I'm not seeing the relevance as a

01:02:24.160 legal constitutional interpretive matter necessarily, although I understand it's a very good

01:02:29.380 point as a policy matter. Yeah, I largely agree with that, and you can view it as being raised

01:02:35.140 preemptively, defensively. I'm going first, but obviously the other side of their amici say,

01:02:39.140 you know, make prediction, end of the world type predictions. And our point is, you know,

01:02:43.800 it's a very small minority because almost every country and certainly all European countries

01:02:48.500 have a different rule and the world hasn't ended there. The other side, last one, the other side

01:02:53.480 relies heavily, of course, on Wong Kim Mark and you disagree with their interpretation. Oftentimes

01:03:00.800 when you are dealing with a constitutional precedent like this, you might argue we disagree

01:03:06.140 with that interpretation, but if you adopt their interpretation or agree with their interpretation

01:03:11.580 of that precedent, you should overrule it.

01:03:14.680 And you haven't made that argument here, and I'm just giving you an opportunity to explain

01:03:19.820 why you haven't.

01:03:21.100 Because we think it's totally unambiguous in Wong Kim Ark that the holding relates to

01:03:26.200 domiciled aliens.

01:03:27.700 And so we strongly agree with the holding.

01:03:29.420 We think domicile was the touchstone, and we think that's not a coincidence for the

01:03:32.680 The reason I maybe speculate a little bit when I was talking to Justice Gorsuch about, you know, how the dissent raises this.

01:03:38.700 And then the majority is like, we're putting domicile in there so we know that the absurd conclusion that they say would come from this isn't there.

01:03:44.540 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.

01:03:55.580 That's deeply rooted in their understanding when they're doing it.

01:03:58.420 They talk about domicile in Yikwo against Hopkins in the 1892 and 1893 cases, and there's

01:04:03.640 this deeply rooted understanding, again, that goes all the way back to the early 19th century.

01:04:07.860 So we think that's a really important conception.

01:04:09.740 So, I mean, we disagree with some of the dicta in Wong Kim Ark that we discuss, and we think

01:04:13.560 there's dicta that goes our way, that the other side overlooks, and we're not asking

01:04:16.800 the court to overrule dicta.

01:04:18.060 We just say, don't follow erroneous dicta, and don't apply it to this brand new situation

01:04:22.180 that was not decided in Wong Kim Ark.

01:04:24.140 Thank you.

01:04:25.220 Justice Barrett?

01:04:25.820 So, General Sarawin, zoom out a little bit and think about use solely and use sanguinis.

01:04:32.180 So as I understand it, at the time of the 14th Amendment, those were the two dominant

01:04:35.880 approaches.

01:04:36.880 You know, use solely, the English common law, roughly following the soil.

01:04:40.900 Use sanguinis, roughly, citizenship following the parents.

01:04:44.580 Now, use solely was very generous on the soil, the English common law, and so it extended

01:04:50.540 citizenship to those born there who may not have been born of parent citizens.

01:04:55.340 But ius sanguinis, you know, if parents who are citizens and had a child abroad, then

01:05:01.680 that child's citizenship followed the parents.

01:05:05.160 So one thing that's puzzling me about your argument when I think about the ratification

01:05:10.780 of the 14th Amendment, in many ways it would have made sense for them, and you acknowledge

01:05:15.520 the ius sanguinis in citing Vittel, it would have made sense in some ways for them to say,

01:05:19.940 okay, we're going to follow.

01:05:21.040 If they wanted to accomplish what you're saying they wanted to accomplish, you could

01:05:23.840 say, well, we're going to follow you, Sanguinis, because we're going to make it all right on

01:05:28.240 parentage. But instead, I mean, the 14th Amendment we're talking about subject to the jurisdiction

01:05:33.380 thereof, but it also says born in the United States. So you have the solely kind of point

01:05:38.980 there, but you're saying it narrowed that point by tying it to the citizenship of the

01:05:44.740 parents, at least as the soil. But I take it you're not arguing that United States citizens

01:05:50.520 who have children born abroad would qualify for birthright citizenship.

01:05:55.360 So it's kind of a narrower view of both the traditional use solely rule

01:06:00.200 and a narrower view of the use sanguinous rule.

01:06:04.040 So why would they have done that?

01:06:05.300 And if they were going to invent an entirely new kind of citizenship,

01:06:08.560 like an American brand,

01:06:10.040 why wouldn't we have seen more discussion of that in the debates?

01:06:12.780 I think you do.

01:06:13.480 And I would say I think the right way to conceptualize it is much more,

01:06:17.380 it is a modified use solely.

01:06:18.960 Because even the British sources don't just say, you're born here, you're a citizen.

01:06:23.220 They say, you're born here, and you have to be under the protection of the sovereign.

01:06:26.540 You have to have a relationship of allegiance.

01:06:28.980 Allegiance is the word in Calvin's case.

01:06:30.460 But they don't focus on the parents.

01:06:32.560 It's the child.

01:06:34.400 And your approach focuses on the parents' allegiance.

01:06:37.000 Yeah, I'm not sure that that's true of the 19th century sources, but—

01:06:39.840 It seems a little ambiguous, and I'm going to ask your friend on the other side

01:06:41.720 of that question.

01:06:42.720 Let me point out, then, that there are two criteria.

01:06:45.660 One is birth on the soil, and the other is legions or allegiance.

01:06:49.380 We have is birth on the soil remains the same, right?

01:06:52.040 And so they are, and that's why so much of Wong Kim Ark is actually we agree with, because

01:06:55.720 they are adopting a modified British rule.

01:06:57.860 They are not going the French rule that Battelle talks about, where it's like, who's the citizen?

01:07:02.280 That had to be done by statute, as you pointed out, which it was in 1401.

01:07:06.320 But what they've got is they say birth in the United States and subject to the jurisdiction

01:07:10.380 thereof.

01:07:11.380 That is talked about as allegiance, allegiance, allegiance in the congressional debates,

01:07:14.720 But they were clearly not incorporating the British feudal, monarchial conception of allegiance

01:07:21.480 where it's indefeasible.

01:07:22.480 I mean, going back to the early 1700s, our nation had repudiated the notion that citizenship

01:07:27.280 is indefeasible.

01:07:28.380 The expatriation statutes for the late 1700s reflect that.

01:07:32.900 And again, you look at the 1868 congressional report that we cite, there, this is the same

01:07:38.560 group of congressmen, Republican congressmen, and they say things like, the U.S. Constitution

01:07:43.180 itself is proof that Blackstone's theory of allegiance was not accepted.

01:07:49.220 So they accept birth on U.S. soil, but then they take the concept of allegiance and give

01:07:53.940 it its Republican, Democratic, American understanding, and that's very, very, I think that makes

01:07:59.780 a ton of sense.

01:08:00.780 Okay, let's talk about its applications.

01:08:03.280 So there are some, I can imagine it being messy in some applications, so what would

01:08:09.560 you do with what the common law called foundlings?

01:08:13.160 The thing about this is then you have to adjudicate, if you're looking at parents, and if you're

01:08:17.000 looking at parents' domicile, then you have to adjudicate both residence and intent to

01:08:21.880 stay.

01:08:22.880 What if you don't know who the parents are?

01:08:23.880 I think there are marginal cases.

01:08:25.620 That one, I think, has the benefit of being addressed in 1401-F, where it talks about

01:08:29.280 flags.

01:08:30.280 Yeah, yeah, yeah, yeah.

01:08:31.280 But what about the Constitution?

01:08:32.280 Under the Constitution, it's domicile.

01:08:33.280 I mean, look, domicile is a constitutional standard in all kinds of other situations.

01:08:37.280 Well, and it's hard.

01:08:38.280 Diversity, jurisdiction, personal jurisdiction.

01:08:40.280 Well, yeah, in a personal jurisdiction, I mean, 1332, diversity jurisdiction.

01:08:43.760 And the thing is, it has to be litigated because it turns on intent.

01:08:47.840 And both the virtue of both you solely and you sanguinis, whichever one you pick, it's a bright line rule.

01:08:54.440 How would it work?

01:08:55.420 How would you adjudicate these cases?

01:08:57.080 You're not going to know at the time of birth for some people whether they have the intent to stay or not,

01:09:03.340 including U.S. citizens, by the way.

01:09:05.420 I mean, what if you have someone who is living in Norway with their husband and family, but

01:09:11.080 is still a U.S. citizen, comes home and has her child here and goes back?

01:09:15.240 How do we know whether the child is a U.S. citizen because the parent didn't have an

01:09:18.560 intent to stay?

01:09:19.500 I'd say, Nate, make two points.

01:09:20.840 One practical, one legal.

01:09:21.920 The practical point is under the terms of this executive order, you don't have to because

01:09:25.020 the executive order turns on objectively verifiable things, which is immigration status.

01:09:29.180 Are you lawfully present but temporarily present, or do you have an illegal status?

01:09:33.500 So those kind of like, you know, taking evidence, so to speak, under subjective intent wouldn't be done.

01:09:38.940 And as to the constitutional point, obviously domicile is baked into a lot of constitutional and legal concepts.

01:09:43.820 And there may be situations where facts are determined.

01:09:46.680 But if you look at the guidance, the guidance that all the agencies did after this court in CASA said the agency could go forward and issue guidance,

01:09:52.220 the guidance provides, I think, very, very clear, objective, verifiable approaches to doing this.

01:09:58.660 And so as a practical matter, I don't think it's presented by this executive order.

01:10:02.900 Thank you, General.

01:10:04.220 Justice Jackson.

01:10:06.380 Good morning, General.

01:10:08.860 So I guess I am looking at your position in this case,

01:10:15.140 and it boils down to requiring us to do at least these two things.

01:10:21.320 One is believe that the framers were not importing the common law rule

01:10:27.440 and understanding of birthright citizenship.

01:10:30.020 And the second is to believe that what they were doing was departing from that common law rule in the way that you suggest.

01:10:41.180 That is, they were seeking to have this turn on domicile.

01:10:46.440 I think you have a number of hurdles to accomplish those two things.

01:10:52.660 One of which, I think, is that when we look at this court's case law, and 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.

01:11:20.860 that, in other words, allegiance meant that you are covered by the laws of the jurisdiction,

01:11:30.140 that you can rely on that jurisdiction's protection, that's what allegiance meant.

01:11:33.880 Now, you're saying today, no, no, allegiance meant something about loyalty or that kind of idea.

01:11:40.580 But if the Supreme Court had, prior to the 14th Amendment, established that allegiance meant the common law definition,

01:11:50.860 I think your first hurdle is to help us understand why we would believe that when the 14th Amendment

01:11:57.640 was ratified, the framers weren't just incorporating what we had previously said it meant.

01:12:05.580 Page 572 of the congressional record directly addresses this.

01:12:09.280 They say the concept of temporary and local allegiance from the schooner exchange is what

01:12:13.500 is meant by, or temporary and local jurisdiction from the schooner exchange is what is meant

01:12:17.140 by the word jurisdiction in the 14th Amendment.

01:12:18.920 Senator Trumbull says, I thought about saying owing allegiance, but again, quote, there's

01:12:23.880 a sort of allegiance from persons temporarily resident in the United States whom we have

01:12:28.780 no right to make citizens.

01:12:30.420 So he expressly and consciously rejected reliance on citizenship.

01:12:33.720 What do we do with, I mean, that's a debate and it's a discussion, very valid, but then

01:12:38.500 we have a subsequent debate between Fessenden and Wade where the same concept comes up and

01:12:45.360 it becomes clear, at least from Senator Wade's perspective, that that's wrong.

01:12:52.000 So, Pheasanton, and I'm not sure whether these are senators, I apologize.

01:12:56.220 Pheasanton says, suppose a person is born here of parents from abroad temporarily in

01:13:01.360 this country.

01:13:02.920 Wade responds, the senator says a person may be born here and not be a citizen.

01:13:08.680 I know that is so in one instance.

01:13:11.480 in the case of the children of foreign ministers who reside near the United States, etc., etc.

01:13:18.560 So it appears as though in that exchange, at least Senator Wade believed that the English

01:13:26.420 common law understanding of what it means to have allegiance, to be a temporary person on the soil

01:13:34.360 was what was being adopted. Yeah, that exchange strongly supports us. If you look at it in

01:13:41.240 context. Senator Wade has introduced a version that says only birth on U.S. soil and doesn't

01:13:46.540 have any allegiance or jurisdictional element to it. And so Senator Fessenden stands up and says,

01:13:52.080 well, that can't be right. Because, you know, obviously, what about the children of temporary

01:13:56.960 visitors? It has this, you know, it's another one of these statements that has this appeal to a

01:14:01.220 background understanding that we all agree that the temporary visitors, their children do not

01:14:04.840 become citizens. And then Senator Wade has to kind of backtrack and say, well, what are the

01:14:08.520 children of ambassadors, and in the end, Congress does not adopt Senator Wade's proposal.

01:14:13.280 So we think that, to the extent you can draw an inference from that, the inference strongly

01:14:16.480 supports it.

01:14:17.480 All right, well, let me just ask you about why we wouldn't see in the 14th Amendment

01:14:21.720 anything about parental allegiance.

01:14:23.720 Several of my colleagues have talked about the fact that your view of this turns on what

01:14:29.200 the status of the parents are and not the child, as would the born in the United States

01:14:35.580 view of it.

01:14:38.020 Can you help us understand why we wouldn't expect to see a mention of parents in the

01:14:43.380 text of this amendment?

01:14:44.380 I think it was well understood that, for example, children cannot, you know, newborns

01:14:48.940 cannot form domicile, so every 19th century—

01:14:52.700 That assumes domicile is in the test.

01:14:54.600 And I'm asking you, how do we know that Congress did adopt the test that you say

01:14:59.700 it adopted?

01:15:00.700 When you're looking at 19th century conceptions of allegiance, the notion that

01:15:03.920 the allegiance again we say domicile is instantiating the concept of allegiance

01:15:08.680 for aliens as opposed to citizen all of that the 19th century understands the

01:15:13.240 newborns domicile its allegiance follows the allegiance of the parents and I

01:15:17.300 point out that their theory relies on parental allegiance as well because they

01:15:21.420 recognize the exceptions for you know hostile invading armies for tribal

01:15:26.660 Indians for ambassadors again the child's allegiance status even on their

01:15:31.460 What do we do with Professor Muller's amicus brief and the historical record and the fact

01:15:38.680 that even at times in this country where we understood that the parents were declared

01:15:45.060 enemies of the United States—I'm talking about World War II and Japanese internment—babies

01:15:49.840 born in that circumstance were given birthright citizenship.

01:15:54.300 So it seems as though this concept of allegiance of the parents really wasn't driving birthright

01:16:00.160 citizenship, at least at this period of our history.

01:16:03.280 Are you saying this is wrong, or they shouldn't have gotten birthright citizenship?

01:16:07.280 Well, if they were domiciled here, yes, they should have.

01:16:09.940 If they are temporarily present, then no.

01:16:12.480 But the executive practice, we can see from the 1930s.

01:16:16.580 How does the temporary presence run with your concept of allegiance?

01:16:21.580 I'm not sure I understand.

01:16:23.280 So can you be clear?

01:16:24.660 Are you saying that only people who are domiciled here, as you define it, can form the necessary

01:16:32.600 loyalty to the United States?

01:16:34.940 Allegiance is not a question of subjective loyalty.

01:16:37.380 Okay.

01:16:37.800 Oh, it is something you owe.

01:16:38.880 It's a reciprocal relationship between the citizen.

01:16:41.140 Whether they want it or not, they have that allegiance.

01:16:43.500 And I think it's powerfully-

01:16:44.300 On the basis of what?

01:16:45.960 Domicile.

01:16:46.480 I mean, that's what it says in so many words in the Venus and the Pizarro.

01:16:48.920 It says, look, if you're talking about an alien, if they're just temporarily passing

01:16:52.060 through no they don't have allegiance but if they've made it their permanent home they become

01:16:56.540 part of our political community and they are analogous or akin to citizens all right just

01:17:01.820 quickly because i'm i'm mindful of the time um what do you do with juan juan kim arcs

01:17:08.940 statement that birthright traditionship is is applying quote independently of a residence

01:17:15.420 with intention to continue such residence, independently of any domiciliation."

01:17:21.300 I know that they use domicile.

01:17:23.400 It's a fact in the case, but that's not a part of their holding.

01:17:27.200 It's not what the reasoning turns on.

01:17:29.660 Correct?

01:17:30.660 I believe you're quoting from page 693 of that opinion.

01:17:32.860 It goes on to say, not citizen terms on that, but the duty of obedience to our laws.

01:17:38.040 It doesn't take the further step at that point and say, therefore, if you have temporary

01:17:41.300 and local allegiance, you're a citizen.

01:17:42.760 And immediately before that, you have that page 693 summary of the court's holding where

01:17:46.980 it says domicile, domicile, domicile.

01:17:48.480 So you say WAM can incorporate the domicile requirement?

01:17:51.760 That is the holding.

01:17:52.760 It's definitely clearly expressed in the holding in multiple places.

01:17:54.760 All right.

01:17:55.760 One final thing.

01:17:56.760 Perspective.

01:17:57.760 You say, perspective, we're supposed to do this.

01:17:59.060 Don't worry about the people who are already here and who would not qualify under your

01:18:03.320 rule.

01:18:04.800 How does this work?

01:18:06.300 Are you suggesting that when a baby is born, people have to have documents, present documents?

01:18:13.880 Is this happening in the delivery room?

01:18:15.760 How are we determining when or whether a newborn child is a citizen of the United States under

01:18:22.560 your rule?

01:18:23.560 I think that's directly addressed in the SSA guidance that's cited in our brief.

01:18:26.700 What SSA says is there's currently a system where, for example, Social Security numbers

01:18:31.140 are generated based on the birth certificate.

01:18:33.360 They say this can still be, for the vast majority of instances, completely transparent.

01:18:37.460 You will still get a—

01:18:38.460 No, not transparent.

01:18:39.460 I'm just talking about the particulars, because now you say your rule turns on whether the

01:18:43.060 person intended to stay in the United States, and I think Justice Barrett brought this up.

01:18:47.060 So are we bringing pregnant women in for depositions?

01:18:50.720 What are we doing to figure this out?

01:18:52.360 Now, as I pointed out earlier, the executive order turns on lawfulness of status.

01:18:57.300 So if you give birth to a baby in the hospital right now, it gets the birth certificate in

01:19:02.340 the system.

01:19:03.340 So there's no opportunity, there's apparently no opportunity, then, for the person to prove

01:19:08.020 or to say that they actually intended to stay in the United States.

01:19:11.580 Absolutely not.

01:19:12.580 The opposite is true.

01:19:13.580 Their opportunity to dispute, if they think they were wrongly denied, which would only

01:19:16.400 happen in a tiny minority of cases, is directly addressed in that guidance.

01:19:19.600 After the fact.

01:19:20.600 After their baby has been denied citizenship, then we can go through the process.

01:19:23.840 And the way that, I mean, I'm summarizing because I'm not an expert at computers, but

01:19:27.420 there's a computer program that currently automatically generates a social security

01:19:30.240 number.

01:19:31.240 says, look, a social security number, non-citizens can have them if they work authorization, so

01:19:35.040 it doesn't prove citizenship.

01:19:36.300 We'll give you a social security number, provided that the system automatically checks the immigration

01:19:41.380 status of the parents, which there are robust databases for, and then it appears no different

01:19:46.760 to the vast majority of birthing parents.

01:19:48.880 Thank you.

01:19:49.880 Thank you, counsel.

01:20:01.960 Ms. Wong?

01:20:03.280 Mr. Chief Justice, and may it please the court,

01:20:06.300 ask any American what our citizenship rule is, and they'll tell you.

01:20:10.860 Everyone born here is a citizen alike.

01:20:14.120 That rule was enshrined in the 14th Amendment

01:20:16.360 to put it out of the reach of any government official to destroy.

01:20:19.980 When the government tried to strip Mr. Wong Kim Ark's citizenship

01:20:24.500 on largely the same grounds they raised today, this court said no.

01:20:29.880 Thirty years after ratification, this court held that the 14th Amendment embodies the English common law rule.

01:20:37.540 Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.

01:20:43.300 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.

01:20:55.060 A closed set of exceptions to an otherwise universal rule.

01:20:58.880 My friend has now clearly said that the government is not asking you to overrule Wong Kim Ark.

01:21:05.440 That is a fatal concession because Wong Kim Ark's controlling rule of decision precludes their parental domicile requirement.

01:21:15.060 The dissent understood that, and the majority tells us six times in the opinion that domicile is irrelevant under common law.

01:21:23.240 Lynch versus Clark was already the dominant American case on citizenship, and it held

01:21:29.720 that the U.S. born daughter of temporary visitors from Ireland, who took the baby back to Ireland

01:21:35.900 with them, that that daughter was a U.S. citizen.

01:21:39.900 Authorities including Lincoln's attorney general and Kent's commentaries embraced Lynch, and

01:21:45.220 Kent specifically talked about temporary sojourners' children being U.S. citizens.

01:21:51.480 Field said in 1884 that that reflected the general understanding. That understanding was confirmed by

01:21:59.160 Congress with its 1940 Act. The 14th Amendment's fixed, bright-line rule has contributed to the

01:22:07.000 growth and thriving of our nation. It comes from text and history. It is workable and it prevents

01:22:13.960 manipulation. The executive order fails on all those counts. Swaths of American laws

01:22:20.900 would be rendered senseless. Thousands of American babies will immediately lose their

01:22:25.440 citizenship. And if you credit the government's theory, the citizenship of millions of Americans

01:22:31.660 past, present and future could be called into question. All of this tells us the government's

01:22:36.840 theory is wrong.

01:22:37.840 I welcome the court's questions.

01:22:40.380 There are five exceptions to citizenship that you do accept.

01:22:46.340 Yes, depending on how many you count, Justice Thomas, how you count them.

01:22:51.700 What is the underlying rule of law that you use to connect these five exceptions?

01:22:58.460 Sure.

01:22:59.460 So, as I just said, all of the exceptions involve situations where that U.S. born child

01:23:05.920 is not subject to the jurisdiction of the United States

01:23:09.260 because that extra-territoriality,

01:23:12.400 that fiction of extra-territoriality,

01:23:14.520 the interaction of another sovereign

01:23:17.400 between the United States' jurisdiction and that person

01:23:21.180 applies to the child as well as to the parent.

01:23:24.620 Everyone else born in the United States

01:23:27.200 is subject to the United States' jurisdiction.

01:23:29.600 To answer Justice Barrett's question to my friend,

01:23:33.800 That's what sets those exceptions apart from other U.S.-born persons.

01:23:38.780 We've heard a lot of talk about Wong Kim Ark,

01:23:42.220 and you dismiss the use of the word domicile in it.

01:23:48.520 It appears in the opinion 20 different times,

01:23:53.780 and including in the question presented and in the actual legal holding

01:24:02.380 And the government doesn't want it to be overruled because it's willing to rely on that particular fact in that case.

01:24:11.340 Isn't it at least something to be concerned about to say that since it's discussed 20 different times

01:24:18.880 and has that significant role in the opinion that you can just dismiss it as irrelevant?

01:24:25.100 Well, Mr. Chief Justice, I think we have to look at what the controlling rule of decision is in Wong Kim Ark.

01:24:32.000 Justice Gray takes pains in the majority opinion to set out his analysis.

01:24:36.680 He first starts with a premise that in construing the 14th Amendment citizenship clause,

01:24:41.840 we look to the English common law.

01:24:44.020 That was the rule that applied from the colonial era on,

01:24:47.740 at least for the colonists and for European immigrants.

01:24:51.820 He then says, look, Chief Justice Marshall tells us in the Schooner Exchange

01:24:56.500 what subject to the jurisdiction means, again looking to the English common law.

01:25:01.420 Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance.

01:25:08.220 And those who are present in the dominions of the sovereign owe temporary allegiance for as long as they're present.

01:25:13.880 The only exceptions, again, at common law were ambassadors, people born on foreign ships, and people who were born during periods of foreign occupation.

01:25:23.040 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.

01:25:36.480 The purpose of the 14th Amendment was to embrace that universal rule of birthright citizenship,

01:25:44.820 to embrace and incorporate the common law exceptions with the single additional exception

01:25:51.460 of the preexisting exception for tribal Indians that we had in the United States, which is

01:25:55.920 an analogous exception, and that's the closed set of exceptions.

01:26:00.980 You can't make sense of the holding in the case without looking to the controlling rule

01:26:05.640 of decision, which is the common law.

01:26:07.920 And I think my friend agrees that under English common law, domicile was not relevant, and

01:26:13.520 the children born to temporary visitors in the territory of the sovereign were always

01:26:18.800 considered birthright citizens.

01:26:20.140 Well, Ms. Wong, I mean, everything you say strikes me as, yeah, that's the way I read

01:26:24.060 it too.

01:26:25.060 But then what are those 20 domicile words doing there?

01:26:29.820 You can take some of them and say, I don't know, they were just summarizing the facts

01:26:34.260 of the case, but not all of them.

01:26:36.420 And why did they keep on, like, why did they sprinkle that in the opinion?

01:26:41.080 Well, I think, again, those were the stipulated facts in the case.

01:26:45.820 And it's clear we have textual evidence in the majority opinion that they were simply

01:26:50.940 saying this is an off fortiori application of that controlling rule that comes from the

01:26:56.400 English common law.

01:26:58.700 Justice Gray writes, again, after setting out the English common law rule and the exceptions

01:27:02.940 with a single additional exception for children of members of Indian tribes, that the amendment

01:27:08.540 in clear words and manifest intent includes the children born within the territory of

01:27:14.180 the United States of all other persons of whatever race or color domiciled within the

01:27:18.720 United States.

01:27:20.420 And as was pointed out earlier, the very next part of that same paragraph, he cites to Webster

01:27:30.560 talking about Thrasher's case.

01:27:32.360 And he says, people who were born in this country

01:27:36.420 owe allegiance independently of a residence within,

01:27:40.260 I'm sorry, foreign nationals owe allegiance independently

01:27:43.560 of a residence with intention to continue such residence

01:27:46.680 independently of any domiciliation

01:27:49.020 and independently of taking any oath of allegiance,

01:27:53.100 which is totally contrary to both the government's theory

01:27:56.860 of dual allegiance or partial allegiance

01:27:59.960 and to the theory of domiciliation.

01:28:02.160 I mean, I would, I might agree with you

01:28:05.600 if domicile had simply been sprinkled in the opinion.

01:28:10.700 But in Wong Kim Ark, it's a long opinion,

01:28:14.280 but it begins by saying, here's the question,

01:28:17.080 and it ends by coming back to the question.

01:28:20.480 And it says, here's the question,

01:28:23.520 stated at the beginning of the opinion.

01:28:25.480 Namely, whether a child born in the United States

01:28:28.320 of parents of Chinese descent who at the time of his birth are subjects of the emperor of China

01:28:32.860 but have a permanent domicile and residence in the United States

01:28:37.320 and are there carrying on business, and he states the diplomatic exception,

01:28:41.960 and he says, for the reasons above stated, this court is of the opinion

01:28:46.180 that the question must be answered in the affirmative.

01:28:49.580 So why put domicile in?

01:28:52.380 Sometimes it's hard to figure out what is the holding of the case.

01:28:54.980 Here he tells us this is the holding of the case.

01:28:57.520 Why put domicile in there?

01:28:59.380 It's just something irrelevant that he wanted to throw in.

01:29:02.940 It's like whether a child born in the United States of parents of Chinese descent

01:29:09.260 who once resided at a particular address in San Francisco,

01:29:14.260 who attempted to enter the country at the port of San Francisco.

01:29:17.820 Why put it in if it's irrelevant?

01:29:20.340 Well, Justice Leto, I'll give you two responses.

01:29:23.620 The first is that, again, it was a stipulated fact.

01:29:26.720 The second is that regardless of what the judgment in the case was,

01:29:31.640 which again was an off fortiori application of the rule of decision,

01:29:35.860 the rule of decision in Wong Kim Ark has binding precedential effect.

01:29:40.480 Even if you think that Wong Kim Ark decided the case based on the stipulated facts,

01:29:46.220 you have to follow that controlling rule of decision.

01:29:49.600 And if you follow that rule, you get to the same result for people without domicile.

01:29:54.820 Wong Ken Mark 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.

01:30:05.440 Well, Ms. Wong, on that, what do we do with the fact that after Wong Ken Mark, at least some authorities took the view that the non-domiciliary question wasn't decided,

01:30:18.280 It remained open and even continued to press the view that domicile is required.

01:30:24.460 Now, I know you've got a lot of good stuff on your side, too, but what do we do with

01:30:29.380 the fact that many sound legal authorities thought it remained an open question, even

01:30:34.760 if one of them wasn't John Marshall Harlan?

01:30:38.460 I liked your example from Justice Harlan's lecture here in D.C.

01:30:43.240 So here's what I would say.

01:30:44.740 All of the government's citations in their brief generally either were rejected by Wonkin

01:30:50.660 Mark expressly, if they predated Wonkin Mark.

01:30:52.740 I'm talking post.

01:30:53.740 If we're trying to understand how the legal community understood what happened in Wonkin

01:30:58.380 Mark, it seems to me it's a mess.

01:31:01.220 So maybe you can persuade me otherwise.

01:31:03.740 I think I can, Justice Gorsuch.

01:31:06.040 First, as to the post-Wonkin Mark authorities that the government cites, each one of them

01:31:11.360 is inconsistent with Wong Kim Ark's reasoning or doesn't mention it at all.

01:31:16.020 Most of them have very little reasoning at all.

01:31:20.120 In contrast, what we have on our side post Wong Kim Ark is numerous federal court decisions

01:31:27.420 around the time of Wong Kim Ark between ratification and Wong Kim Ark that said that domicile is

01:31:33.680 not relevant.

01:31:34.680 They cited Lynch versus Clark, which again was about the daughter of temporary sojourners.

01:31:39.700 We have the 6th edition of Kent, which was cited in Wonkinmark and, of course, was then

01:31:44.180 cited after Wonkinmark was decided by many authorities, again discussing temporary sojourners.

01:31:51.160 Anyone who wanted to know what the law of citizenship was under the 14th Amendment after

01:31:55.380 Wonkinmark would go to the 6th edition of Kent, where he says in that footnote on page

01:32:00.480 38 that the rule was Lynch v. Clark and temporary sojourners' children are U.S. citizens.

01:32:07.620 We have members of Congress speaking on the record on debates on immigration laws where

01:32:12.860 they were finally passing these immigration restrictions that Senator Cowan wanted.

01:32:18.140 And they all stated either that Lynch was the rule, that Attorney General Bates had

01:32:22.980 stated the rule, again citing Lynch, or Kent and stating the rule that everyone born in

01:32:28.460 the U.S. is a citizen and saying, look, children of Chinese immigrants, these immigrants who

01:32:35.280 were unwelcome, these immigrants that Congress is now trying to bar from entering the United

01:32:39.940 States if their children born in the United States are citizens.

01:32:44.520 We have an 1896, so a couple of years before Bonkermark, but an 1896 State Department regulation

01:32:51.960 which said the U.S. born children of foreign nationals are U.S. citizens accepting only

01:32:57.800 the children of ambassadors.

01:33:00.100 And then you have Marshall Woodworth, who is a U.S. attorney, who writes in a Law Review

01:33:04.100 article that he's talking specifically about temporary sojourners' children, and he says,

01:33:10.920 I don't think that's a good rule from a policy perspective, but that's the general rule.

01:33:15.380 Ms. Lang, can I offer a possible explanation for why Justice Gray made a point of putting

01:33:26.380 domicile in what he said was the holding of the case, and it is this.

01:33:34.160 Wong Kim Ark and his parents, had they come to the United States from Europe, could have

01:33:41.540 been naturalized, but because they were Chinese, they could not be naturalized, and they had

01:33:46.860 done everything that they could to make themselves Americans by establishing a domicile in the

01:33:55.900 United States.

01:33:57.840 And so that's what this was about.

01:34:01.180 He couldn't get naturalized because of a racist law, but they had done everything

01:34:05.680 they could to become part of the American society.

01:34:11.560 At the same time, there were many, many men who were horribly exploited, brought to the

01:34:19.600 United States to work on the Transcontinental Railroad, to work in mines.

01:34:27.300 They were worked to death.

01:34:29.260 They were treated horrifically.

01:34:31.500 But they were not, they were overwhelmingly men.

01:34:34.660 There wasn't an indication that they would stay here, they could stay here.

01:34:38.740 They didn't have permanent homes.

01:34:40.760 And the opinion is drawing a distinction between those two categories of people who would have

01:34:47.440 been well understood at the time when Wong Kim Ark was decided.

01:34:50.980 No, Justice Alito, I don't think that's a plausible explanation for why domiciles

01:34:56.500 mentioned in Wong Kim Ark because, again, the controlling rule of decision based on

01:35:01.840 the English common law and cases from Schooner Exchange to Lynch v. Clark to State v. Manual,

01:35:08.260 which was the North Carolina decision that said, look, the rule in the United States

01:35:12.640 from independence on has been the English common law rule, that explanation would be

01:35:19.800 inconsistent.

01:35:20.800 But Ms. Wong, isn't that explanation, I take Justice Alito's point, and I think he actually

01:35:26.380 makes a good one in the sense that it could be that Justice Gray emphasized domicile to

01:35:35.300 help the public accept the outcome of this case.

01:35:41.260 We're suggesting that the emphasis on domicile was not a part of the rule, meaning he wasn't

01:35:48.400 saying you had to be like a foreigner who is doing everything they can and who can't

01:35:55.100 be naturalized.

01:35:56.220 But he might have emphasized those facts in this case precisely because Chinese immigrants

01:36:02.280 were unwanted, precisely because he had to get this out into the public and people were

01:36:08.060 going to say, whoa, you're saying these people have to, this baby has to be a citizen?

01:36:13.700 And so one could imagine that it was important from a standpoint of helping people accept

01:36:20.020 this citizen rule under these circumstances to emphasize that these particular people

01:36:25.300 in this case were in Justice Alito's first category.

01:36:31.260 I think that is very possible, Justice Jackson, and as evidence of that, I would point to

01:36:36.100 the fact that if you look at the briefing in Wang Kim Ark, you'll see that even though

01:36:41.320 the parties had stipulated in the district court that Wang Kim Ark's parents were domiciled

01:36:48.880 in the United States, when the case came to the Supreme Court, the government's brief

01:36:53.280 argued that it was impossible for Chinese immigrants to have domicile, because they

01:36:59.720 expressed the view that was common among people who opposed immigration by Chinese nationals

01:37:05.960 to the United States, there was a common view that Chinese people were inherently temporary

01:37:11.420 sojourners in the country.

01:37:13.560 And so, I do think it's possible, Justice Alito and Justice Jackson, that he was trying

01:37:18.440 to dispel that notion and tell the government…

01:37:20.560 Absolutely.

01:37:21.560 At least it reads as though he's trying to calm everyone down.

01:37:26.460 These particular people were domiciled, but we're following the English common law rule.

01:37:32.160 And when you look at the English common law rule, domicile is not a factor.

01:37:37.320 That's right.

01:37:38.320 I think, you know, who knows why the majority opinion mentioned domicile.

01:37:42.640 We know it's a stipulated fact.

01:37:44.380 We know the government tried to renege on that stipulation and rely on this assumption

01:37:49.940 on the part of anti-Chinese advocates at that time, that Chinese people couldn't form a

01:37:58.380 a domicile in the United States, and he followed the English common law rule.

01:38:02.300 MS.

01:38:03.300 Go ahead.

01:38:04.300 MS.

01:38:05.300 I just wanted to ask you a question about how the exceptions fit within the general

01:38:08.760 rule.

01:38:09.760 You've called them exceptions, and some of the common law sources call them exceptions,

01:38:13.140 so I take that point.

01:38:14.820 But if we think of you solely as tied to the territory, and we look at the exceptions as

01:38:20.500 territorial in a sense, then they seem kind of like natural outgrowths of that rule.

01:38:26.360 And this is what I mean, and this is where I want your help with how the exceptions played

01:38:30.520 out in practice.

01:38:32.240 If you look at Indian reservations as unique places because Indians were quasi-sovereigns,

01:38:39.320 separate nations in the American system.

01:38:42.800 If you look at occupied alien territory as territory that's outside the jurisdiction

01:38:49.360 of the United States.

01:38:50.360 And then if you look at the diplomatic exception, almost like diplomats and their children had

01:38:55.160 little bubbles around them, like the embassy is really the territory of that country, and even

01:39:00.180 when they're traveling around, they're all not subject to the jurisdiction by virtue of this

01:39:04.480 territorial fiction. Are those just applications of the rule? And if they are, then what happens

01:39:12.540 to alien enemies like the German spies in Ex Parte Quirin, or what happens to Indians who are

01:39:20.020 actually not on the reservation, but may be born, say, in Baton Rouge.

01:39:25.080 How does the rule apply in those situations?

01:39:26.900 Does it travel with the person, or is it tied in some sense to the land?

01:39:30.780 Sure.

01:39:32.420 Let me answer each part in turn.

01:39:35.780 The thing that all of the exceptions have in common, again, is this sense that the person

01:39:43.260 has this fiction of extraterritoriality around them.

01:39:48.220 Let's set aside the Indian tribal exception for a moment and come back to it.

01:39:52.140 So the example of enemy aliens, for example, ex parte Kirin, is one that is answered by

01:39:58.380 just a story in both Inglis and in Rice.

01:40:03.460 And the touchstone under the American application of English common law was that in wartime,

01:40:09.780 the touchstone is whether there's a foreign occupation of U.S. territory.

01:40:15.140 And that's just to interrupt for one second to clarify.

01:40:18.220 is territorial sometimes it just seemed to me that the rule varied sometimes it was stated as

01:40:23.020 enemy alien and sometimes it was focused on occupied territory sure so so the rule i don't

01:40:29.100 think there's a separate rule for enemy aliens and the government's briefs describe the exception as

01:40:34.460 an enemy alien exception i i don't think that is the best way to think about it rice and english

01:40:40.220 tell you that when the british forces are occupying cassidy and maine no one is subject to u.s

01:40:47.660 jurisdiction there because Britain is ruling, is governing Castine, Maine.

01:40:53.060 And Justice Story explains, look, if the U.S. then retakes that territory, people, babies

01:40:58.460 who were born to U.S. citizens by what he called post-limini become U.S. citizens.

01:41:04.380 So that's the way to think about any wartime situation, enemy aliens or otherwise.

01:41:11.320 As we heard earlier, Professor Muller's amicus brief tells us how we've thought about enemy

01:41:17.340 aliens in wartime.

01:41:19.120 Even in World War II, when the United States was detaining Japanese nationals who were

01:41:24.680 deemed enemy aliens of the United States, when those enemy aliens had babies in these

01:41:30.280 detention camps, everyone agreed that those babies were U.S. citizens.

01:41:35.600 And Professor Muller goes on to explain that there are many cases of those U.S. citizens

01:41:40.760 going on to a lifetime of government service to the United States.

01:41:44.960 Everyone agrees those babies are U.S. citizens like everyone else.

01:41:48.040 So again, the touchstone for enemy aliens is, is there an occupation.

01:41:52.720 So what about Indians?

01:41:53.720 What about the Indian who's off the reservation or born off of a reservation?

01:41:56.620 Sure.

01:41:57.620 So to start with the basics, I'll refer to the Indian tribal exception just to use the

01:42:02.600 term of art.

01:42:03.740 The Indian tribal exception, Elk versus Wilkins tells us, comes from the constitutionally unique

01:42:10.240 status of Indian tribes.

01:42:12.740 In the Indian Commerce Clause, we know that tribes are treated as basically quasi-sovereign

01:42:19.500 nations.

01:42:20.580 We know that from the Marshall Trilogy of cases.

01:42:22.800 We know from Worcester versus Georgia, where Chief Justice Marshall said that the tribes

01:42:27.760 are essentially a distinct political community.

01:42:31.020 Well, I understand all that, so just at the entrance of time, just to focus you, I understand

01:42:35.840 why the Indians are treated differently for purposes of the law, but I want to know, is

01:42:40.400 Is it tied to territory or is it tied to the status of someone as a member of a tribe?

01:42:45.780 Because if you're looking at it because of the special relationship of Indians to the

01:42:50.240 United States as a matter of the Constitution, et cetera, well, I mean, citizens of France

01:42:54.860 are citizens of a different sovereign as well.

01:42:57.240 Sure.

01:42:58.240 So Elk versus Wilkins doesn't really answer that question.

01:43:02.740 The court says there are two ways to look at this.

01:43:06.360 Whether you look at it as the tribal member is like an ambassador, or you can look at

01:43:12.400 it like there's a territoriality issue where people are born on tribal lands, and therefore

01:43:19.180 they're essentially, I think he says, Justice Gray says at one point, we might as well be

01:43:23.140 talking about someone who's born in Mexico.

01:43:24.800 Well, there's a lot in elk, and some of it's not terribly helpful for you, it seems

01:43:28.860 to me because justice gray again strikes again um says that that uh they may be subject in some

01:43:37.500 degree or respect to the united states so there's some jurisdiction he says they're born with in the

01:43:44.540 in the geographic limits they are in a geographical sense born in the united states

01:43:51.500 but because they are not completely subject to the jurisdiction of the united states and

01:43:57.020 owe allegiance, distinct from the United States.

01:44:01.120 That's what takes them outside.

01:44:03.720 And that language sure sounds a lot like the Solicitor General's presentation today.

01:44:10.320 To the contrary, Justice Gorsuch, I embrace that part of Elk v. Wilkins' holding.

01:44:16.480 Justice Gray, of course, wrote both Wong Kim Ark and—

01:44:18.480 I know, and it's a struggle.

01:44:20.480 Sure.

01:44:21.480 Let me try to help you out with that.

01:44:26.720 The government tries to make it seem as though what sets the exceptions apart, what defines

01:44:31.100 the exceptions, is that the government has some maximum theoretical power.

01:44:37.060 The government could have exercised plenary regulatory power over the tribes, and therefore

01:44:42.740 that's the same situation as a foreign national in the United States.

01:44:48.020 But that's actually not true, because remember, there's always this background notion, whatever

01:44:54.540 the parameters of the relationship between the United States government and tribal nations

01:45:00.180 at that time of ratification, there was this constitutionally distinct status of the tribes

01:45:07.420 and tribal members, excluding them from apportionment, which was renewed in the 14th Amendment.

01:45:15.460 And that's not true for our nationals.

01:45:17.120 If the government were right that the question is what's the maximum theoretical power the

01:45:22.760 government has, there'd be no ambassador exception, because, of course, the United States could

01:45:26.740 decide in some instance to go ahead and prosecute an ambassador.

01:45:30.840 There would be inter-sovereign comedy considerations there.

01:45:34.580 That's how you define the exceptions.

01:45:36.540 And as Wong Kim Mark says, Elk v. Wilkins has no bearing on the question of Ford Nationals.

01:45:44.100 Ms. Wang, on the earlier answer you gave to Justice Gorsuch on the temporary sojourners

01:45:51.540 cases. Those were distinct cases, correct, where the parents had come to the U.S. and didn't want

01:45:59.280 to give citizenship to their kids, took them out immediately, correct? I'm sorry, Justice Stonemeyer,

01:46:04.800 I'm not sure which cases you're referring to. All right, that we can look at. Okay.

01:46:10.420 Ms. Wang, would you agree that the citizenship test in the 14th Amendment is the same

01:46:16.280 as the test in the 1866 Civil Rights Act?

01:46:21.420 So the words are obviously different.

01:46:24.520 What Wong Kim Ark tells us and what the debates tell us

01:46:27.560 is that the framers, it was the same Congress obviously framing both,

01:46:32.780 Congress was trying to do the same thing with both the 1866 Act

01:46:36.600 and with the 14th Amendment.

01:46:38.180 They wanted to capture the common law exceptions

01:46:40.440 and the Indian tribal exception.

01:46:42.900 They started out with the two separate phrases,

01:46:45.100 not subject to any foreign power, plus, excluding Indians not taxed.

01:46:50.040 And as Justice Gray described it in his majority opinion in Wonky Mark, they decided to switch

01:46:54.240 to the affirmative phrase, subject to the jurisdiction and—

01:46:56.700 Yeah, but do they mean the same thing?

01:46:59.240 And wouldn't it be very odd if the citizenship test in the 14th Amendment were broader than

01:47:06.480 the citizenship test in the 1866 Civil Rights Act, particularly in the light of the fact

01:47:13.320 that the 1866 Civil Rights Act was reenacted after the adoption

01:47:19.620 of the 14th Amendment and remained in place until 1940?

01:47:23.620 Sure.

01:47:24.920 The framers were trying to do the same thing

01:47:26.320 with the language in both.

01:47:27.420 Okay, so then I think we can turn to the language

01:47:30.660 of the 1866 Civil Rights Act because it's more straightforward.

01:47:35.980 You know, subject to the jurisdiction thereof is like the, you know,

01:47:39.980 the puzzle wrapped in an enigma, wrapped in a mystery.

01:47:42.560 But not subject to any foreign power is pretty straightforward.

01:47:49.520 So let me give you these examples.

01:47:53.000 A boy is born here to an Iranian father who has entered the country illegally.

01:47:58.740 That boy is automatically an Iranian national at birth, and he has a duty to provide military

01:48:05.860 service to the Iranian government.

01:48:08.680 Is he not subject to any foreign power?

01:48:13.100 Not within the meaning of the 1866 Act, Justice Alito.

01:48:16.860 And that's clear from Wong Kim Ark, and it's clear from the debates.

01:48:19.720 What the framers meant by the phrase, not subject to any foreign power, was referring

01:48:24.220 to the ambassador exception.

01:48:26.020 If it meant what the government contends, basically not a subject of any foreign power,

01:48:31.800 that another country considers you a sanguineous citizen, then lawful permanent residents all

01:48:38.660 Well, ordinary public meaning of that would certainly encompass that boy, would it not?

01:48:47.700 Justice Alito, if you think that the language of the 1866 Act was ambiguous, as Wong Kim

01:48:52.420 Mark says, the shift to the language of the 14th Amendment, which is the operative text,

01:48:57.780 certainly clears up any ambiguity.

01:49:00.260 What I said about a boy born to an Iranian father is true of children born here to parents

01:49:08.400 who were nationals of other countries.

01:49:11.040 If I'm correct, it's true to a child who's born here to Russian parents.

01:49:16.180 It's true to a child who's born here to Mexican parents.

01:49:20.180 They're automatically citizens or nationals of those countries and have a duty of military

01:49:26.500 service.

01:49:27.500 It sure seems like that makes them subject to a foreign power.

01:49:32.980 But again, Justice Alito, that would have meant that the children of Irish, Italian and other

01:49:40.420 immigrants, which Wonkymark refers to and the debate the framers refer to, would not

01:49:45.860 have been citizens either.

01:49:48.700 Because if the only test is whether that U.S. born child is considered a citizen by another

01:49:54.920 country under their Usanguinis laws, then no foreign nationals children would be included

01:50:00.860 in citizenship.

01:50:01.860 In all of those cases, the parents could be naturalized,

01:50:05.120 and then the children would be derivatively naturalized

01:50:09.460 when the parents were naturalized.

01:50:16.480 Wong Kim Ark has a passage explaining how this court should treat dicta,

01:50:28.200 and it quotes something that John Marshall said.

01:50:30.900 It is well, this is quoting from Wong Kim Ark, it is well to bear in mind the oft-quoted

01:50:37.180 words of Chief Justice Marshall, it is a maxim not to be disregarded, that general expressions

01:50:44.220 in every opinion are to be taken in connection with the case in which those expressions are

01:50:49.660 used.

01:50:50.660 If they go beyond the case, they may be respected, but ought not to control the judgment in a

01:50:58.420 a subsequent suit when the very point is presented for a decision.

01:51:03.660 So, does that fall within the, you know, what's good for the goose is good for the gander

01:51:09.020 rule?

01:51:10.020 That's how Wong Kim Ark treats what was said in the Slaughterhouse cases.

01:51:16.740 Should we apply that same rule to Wong Kim Ark itself?

01:51:20.920 Wong Kim Ark tells you what to make of the Slaughterhouse dicta.

01:51:25.700 It was dicta.

01:51:26.700 issue of citizenship was not at play in Slaughterhouse. And in contrast, the parts of the

01:51:33.820 holding, the parts of the decision that I alluded to, are the controlling rule of decision.

01:51:39.780 Again, we look to the English common law in construing the 14th Amendment.

01:51:44.840 Thank you, Counsel. Justice Thomas? Anything further? Justice Alito?

01:51:47.980 Just a couple more questions.

01:51:50.020 So if those who framed and adopted the 14th Amendment had wanted to limit the citizenship

01:52:01.620 test to just those specific groups that you concede far outside the birthright citizenship

01:52:11.080 rule, why didn't they refer specifically to those groups?

01:52:16.620 Why did they adopt the general rule?

01:52:17.960 They could have said all persons born are naturalized in the United States,

01:52:21.660 excluding Indians not taxed, and those ineligible under common law are citizens

01:52:27.060 of the United States and of the state wherein they reside.

01:52:30.760 Or they could have said all persons born are naturalized in the United States,

01:52:34.760 excluding Indians not taxed, and the children of foreign ambassadors

01:52:38.260 or foreign invaders are citizens of the United States

01:52:41.660 and of the state wherein they reside.

01:52:43.460 But they didn't do that.

01:52:44.460 They adopted a general rule.

01:52:45.960 So what's the explanation?

01:52:47.400 I would say the Wong Kim Mark tells us what the explanation is.

01:52:52.160 That the framers of the 14th Amendment, after overriding President Johnson's veto, wanted

01:52:57.500 to adopt a universal rule with a closed set of exceptions.

01:53:02.200 And they believed that, subject to the jurisdiction of the United States, did that.

01:53:06.800 And that term does describe both the universal general rule and the common law exceptions

01:53:12.180 with the sole additional American exception for tribal Indians.

01:53:17.020 Thank you.

01:53:18.260 Justice Sotomayor?

01:53:19.000 Ms. Wang, I've not quite understood the Solicitor General's argument

01:53:26.240 that lawful domicile somehow changes the U.S.'s dominion over a person or allegiance.

01:53:39.260 Even in Justice Alito's examples, if your parents are Iranian, if you get lawful permanent residency here,

01:53:50.020 that child still, by their laws, when it leaves the United States, must serve in the Iranian army, correct?

01:53:58.620 Well, I don't know the answer to that.

01:54:01.340 But what I can tell you is that under Wong Kim Ark, the court says, we don't care about

01:54:08.100 problems of dual nationality.

01:54:10.620 We don't look to other countries' laws in construing our 14th Amendment.

01:54:15.660 Well, it was undisputed there that Wong Kim Ark's parents owed loyalties to China, correct?

01:54:25.720 Sure, yes.

01:54:26.720 What I'm saying is, even if you become a permanent resident, you're not a U.S. citizen.

01:54:32.820 So your primary loyalty still remains with your citizenship country, wherever you came from.

01:54:39.600 That's right, Justice Sotomayor. I take your point now.

01:54:42.040 You understand what I'm saying.

01:54:44.260 And during temporary, whether it's lawful or unlawful, temporary presence in the United States, you are subject to the U.S. laws, correct?

01:54:55.520 That's right.

01:54:56.200 The question that the 14th Amendment asks is whether the U.S. born child is subject to U.S. jurisdiction when they're born.

01:55:04.180 Meaning, are they within the U.S. territory?

01:55:06.520 Exactly.

01:55:07.140 Other than people covered by that closed set of exceptions.

01:55:10.240 Thank you.

01:55:10.700 That's right.

01:55:11.460 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,

01:55:20.540 would exclude the children of all foreign nationals.

01:55:23.940 And that isn't what they're saying.

01:55:26.200 Exactly. So the only way that allegiance, lawful or unlawful, has no play in this question?

01:55:34.380 I would say that the relevance of allegiance is the relevance under the English common law rule that's embodied in the 14th Amendment.

01:55:42.320 All persons born in the territory of the sovereign owe natural allegiance.

01:55:47.280 Except for the limited, three limited exceptions.

01:55:50.460 Precisely.

01:55:51.720 Mrs. Kagan?

01:55:52.360 I think I'd like to take you back to the first question that Justice Alito asked General Sauer,

01:55:58.640 and it was this question of what do we do if we think we have a new problem that didn't exist at the time of the 14th Amendment.

01:56:06.980 I don't think, actually, that the U.S. government argues the case this way,

01:56:11.680 but let's put the U.S. government's arguments aside and just ask something like,

01:56:17.460 well, everything that you're saying would suggest an answer to the question of people who,

01:56:24.960 the children of people who are temporarily in the U.S., but here lawfully.

01:56:30.060 Is there any way that there might be a different answer with respect to the children of people

01:56:37.080 who are here unlawfully because of this new problem issue that Justice Alito has raised?

01:56:46.700 No, there is no difference.

01:56:48.800 And of course, the government's arguments as to people who are unauthorized immigrants in this country

01:56:53.320 all runs through and hinges on their domicile requirement.

01:56:57.280 The first thing I would say in response is that, once again,

01:57:00.600 it's crystal clear from Wong Kim Ark and from the debates

01:57:03.380 that the framers of the 14th Amendment meant to have a universal common law rule of citizenship

01:57:08.720 subject to a closed set of exceptions.

01:57:11.780 And we can't take the current administration's policy considerations into account

01:57:18.860 to try to re-engineer and radically reinterpret the original meaning of the 14th Amendment.

01:57:25.300 The second point I would make is that, in fact, the framers did consider the concept

01:57:31.180 and the actual problems of immigration that were coming up at that time.

01:57:36.720 In addition to this, you know, 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, will encourage them to come into our country because they're childrenly citizens.

01:58:06.040 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.

01:58:16.440 And Senator Conness himself, an Irish immigrant, says, yes, and I am voting for that because I believe in citizenship by virtue of birth without regard to parentage.

01:58:26.940 And the third point I would make is a historical one, which is that recall that at the time

01:58:33.380 the framers are thinking about birthright citizenship, there have just been 15 or 20

01:58:40.600 years of unprecedented immigration from Ireland.

01:58:46.700 The Know Nothing Party was dominant in the 1850s, just a decade earlier, and they were

01:58:53.320 vehemently opposed to Irish immigration.

01:58:55.740 They believed Irish Catholic immigrants were unassimilable and could never become Americans.

01:59:01.800 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.

01:59:13.040 That's the intuition that the framers of the 14th Amendment had.

01:59:18.240 Contrary to the government's arguments now, they wanted to grow this country.

01:59:24.060 They wanted to make sure we had a citizenry, to populate the military, to settle the country.

01:59:30.560 And they also had an intuition that was consistent with the founding aversion to inherited rights and disabilities.

01:59:42.440 Thank you.

01:59:43.620 Justice Gorsuch?

01:59:45.220 Justice Kavanaugh?

01:59:46.120 On Lynch v. Clark, which you cite several times in the brief and today, which I appreciate,

01:59:54.000 the government's response is that that decision was questioned at the time and went unmentioned

01:59:58.620 in congressional debates about the 14th Amendment.

02:00:01.120 I just want to get your response to that point on Lynch.

02:00:05.200 Sure.

02:00:06.340 Not true, though the Lynch was not specifically mentioned by name in the 14th Amendment debates.

02:00:12.080 It was a couple months earlier in the debates on the 1866 Act, where Senator Trumbull, I'm

02:00:19.080 sorry, Senator Lawrence talks about the great case of Lynch versus Clark, where it was conclusively

02:00:25.700 shown that all children born here are citizens without any regard to the political condition

02:00:30.260 or allegiance of their parents.

02:00:32.060 And then, of course, they discuss the children of temporary sojourners elsewhere without

02:00:35.740 mentioning Lynch.

02:00:36.740 I just want to isolate a point that you've mentioned, which is if the 14th Amendment

02:00:43.900 used the phrase not subject to any foreign power, it would give a much tougher argument.

02:00:50.660 And then earlier, I think you indicated that that's what they meant, even though they didn't

02:00:58.580 say it.

02:00:59.580 I just want to give you a chance to unpack that.

02:01:02.900 that, because I think that's, if it's said that, I think our history would be a little

02:01:06.680 different, and I think the text, even put aside the histories, because that's speculation,

02:01:11.000 the text would be quite a bit different.

02:01:12.740 Sure.

02:01:13.280 So, let me answer in three parts.

02:01:15.820 The first is that Wong Kim Mark tells us that, you know, the court already dealt with this

02:01:20.960 and said, look, the framers were trying to do the same thing with the language of the

02:01:25.120 1866 Act.

02:01:26.420 To the extent you think that the language is ambiguous or not as good, let's look at

02:01:32.120 the operative text, subject to the jurisdiction thereof.

02:01:35.200 The second point I would make is that it's clear from the debates that the framers in

02:01:39.600 using the phrase, not subject to any foreign power, were thinking about ambassadors.

02:01:44.240 And I believe that Senator Wade at one point says, well, I wanted to start with the phrase,

02:01:50.000 all persons born in the United States are U.S. citizens, but then I thought, oh, wait,

02:01:54.080 we have these temporary visitors.

02:01:55.880 In fact, the government points to this quote.

02:01:57.440 He says, so there are these temporary visitors.

02:01:59.440 We can't make citizens, and we can't make their children citizens.

02:02:02.880 That's ambassadors, and that's very clear from that.

02:02:05.000 So if that had been the text, your argument would be that was understood to be narrower

02:02:09.900 than its text would read.

02:02:11.560 Yes.

02:02:12.560 But that's not the text, so I guess we don't need to deal with that.

02:02:15.120 Sure.

02:02:16.120 And that brings me to my third point, which is you can't read not subject to any foreign

02:02:20.680 power the way the government urges you to without making the children of all foreign

02:02:25.180 nationals non-citizens.

02:02:27.620 that's clearly not what the framers were doing uh justice alito and justice kagan raised an

02:02:33.480 interpretive question that i think is important which is are the exceptions you've used the word

02:02:38.080 closed many times okay this is the war room we're back at five o'clock uh we're going to be back at

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Bannon's War Room - April 01, 2026

Episode 5263⧸5264： Historial Morning SCOTUS Hearing Arguments On Birthright Citizenship; Trump Live In The Courtroom

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