In its appellate briefs in Washington v. Trump and CASA v. Trump, two of the birthright citizen cases making their way through the courts, the Department of Justice claims that the original meaning of the Constitution’s Citizenship Clause supports President Donald Trump’s Executive Order limiting birthright citizenship to American-born children whose parents are either citizens or legal permanent residents (LPRs). Although these briefs from the government might seem at first glance to be scholarly and well-supported, a close look at them reveals that DOJ is grasping at straws. Many of the authorities on which the briefs rely are misleading or derivative, while other more pertinent sources are mischaracterized or ignored. Here, I discuss eight notable examples, focusing on the brief in Washington v. Trump. The brief in CASA v. Trump seems to be virtually identical and subject to the same objections, which should be considered alongside other criticisms of DOJ’s prior briefs in these cases, and of the Executive Order itself.
Elk v. Wilkins and “Citizenship Without Consent”
In its Summary of Argument, the DOJ quotes this statement from the 1884 Supreme Court case Elk v. Wilkins: “[N]o one can be become a citizen of a nation without its consent….” The statement is taken out of context and made to look like a general principle about birthright citizenship, when the original context makes clear that Justice Horace Gray was talking about the naturalization of tribal Indians by treaty or statute. In that setting, Gray observed, tribal Indians like John Elk (who was born in Iowa to Wisconsin-born parents) could not become American citizens “at will” by simply subjecting themselves to U.S. jurisdiction, as Elk did when he left his Winnebago Tribe and moved to Omaha, Nebraska. (See Elk at 103, 103-109.) At this point in his opinion, Gray had already stated the key holding of Elk that divided the majority and dissent, limiting birthright citizenship to those persons subject to the jurisdiction of the United States at the time of their birth. (Elk at 102.) The only issue left to discuss was how tribal Indians could become citizens later in life, given that they were not birthright citizens—and that is when the nation’s consent becomes relevant.
In Citizenship Without Consent, Peter Schuck and Rogers Smith seem to misinterpret this aspect of Elk when they say that it “explicitly read the clause’s jurisdiction requirement as a repository of consensual ideas” and “exemplified ‘the principle that no one can become a citizen of a nation without its consent’” (p. 84, quoting Elk). Again, Gray’s statement referred to naturalization, not birthright citizenship. DOJ might have relied on Schuck and Smith when appealing to “consent” in this fashion, but in any case, its quotation from Elk v. Wilkins is inapposite. (In 1924, Congress passed the Indian Citizenship Act, which extended citizenship to all Native Americans born in the United States. For more on Elk, its context, and its aftermath, see this informative article by Professor Bethany Berger, along with Justice Gorsuch’s concurrence in Haaland v. Brackeen.)
“Primary Allegiance”
On page 12, the brief claims that the reason why children of foreign diplomats, hostile occupiers, and tribal Indians are not birthright citizens is “because of their primary allegiance to another sovereign” (emphasis added). This concept reappears on page 13: “The text and structure of the Fourteenth Amendment, as well as its drafting history and background principles, demonstrate that ‘subject to the jurisdiction’ refers to persons who owe primary allegiance to the United States” (emphasis added). The same term is used again, six times, on pages 17, 22, and 23.
The brief cites no legal authority for these claims about primary allegiance. Instead, it seems to have made them up out of whole cloth for the purposes of this litigation. A simple search confirms that this phrase is never used—not once—in either Elk or United States v. Wong Kim Ark, the 1898 case in which the Supreme Court held that the American-born child of noncitizen parents was a birthright citizen. The phrase “primary allegiance” also cannot be found in any of the five volumes of the Congressional Globe that chronicled what was said during the First Session of the 39th Congress, when the Fourteenth Amendment was adopted. The members of that Congress talked a lot about allegiance in 1866, but apparently never about “primary allegiance.” Nor, finally, does this term appear in Professor Michael Ramsey’s seminal article, “Originalism and Birthright Citizenship,” the most significant originalist scholarship on the Citizenship Clause to date. Bizarrely, DOJ seems to have fabricated a new legal concept on behalf of the Executive Order, while ignoring Ramsey’s scholarship and the extremely detailed historical analysis of birthright citizenship in the Court’s landmark opinion in Wong Kim Ark. One suspects that the courts will not be impressed with this kind of make-it-up-as-you-go originalism, once they take the time to read and digest Wong Kim Ark, Ramsey’s article, and the sources on which they principally rely.
(As Professor Thomas Lee discusses in another important article, the term “primary allegiance” was in fact used by James Madison during an eligibility dispute in the First Congress. Yet, as Lee explains, “the full context of Madison’s May 1789 remarks reveals how little they had to do with birthright citizenship, whether by place of birth or parentage”—and in any event, DOJ does not refer to Madison or any other authority to support its use of this concept.)
Vattel’s Law of Nations
On page 21, the DOJ brief draws upon an 18th century legal treatise, The Law of Nations by the Swiss jurist Emmerich de Vattel, to provide a gloss on the Constitution’s reference to “natural born citizen[s]” of the United States. The brief implies that this term refers to “those born in the country, of parents who are citizens.” Yet this has never been the American understanding of “natural born citizen,” whose intra-territorial aspect derived principally from the common law concept of “natural born subject,” as expounded by Edward Coke and William Blackstone, not from Vattel. The edition of Vattel’s treatise to which the brief refers was not published until 1797, and the earlier French and English versions with which the Framers were familiar did not refer to “natural born citizens” but to “Les Naturels, ou Indigènes” and “indigenes,” respectively. The brief goes on to suggest that Vattel’s discussion of children of “perpetual inhabitants” in Sections 213-215 of The Law of Nations maps on to the Executive Order, which separates the children of LPRs from those of temporary visitors and undocumented immigrants. But anyone who reads these sections of Vattel will realize how specious this argument is. Vattel describes “perpetual inhabitants” as “a kind of citizens of an inferior order” (emphasis added), whose native-born children inherit that inferior status—not full citizenship, as has always been true of natural born citizens in the United States, at least since the Fourteenth Amendment.
Late 19th and Early 20th Century Writers
On page 27, the brief cites a string of late 19th and early 20th-century writers, all of whom, we are told, “recognized that the children of temporarily present aliens were not citizens.” But a careful examination of these sources reveals them to be of limited value and, in several cases, misleading. For example, Alexander P. Morse’s Treatise on Citizenship was published in 1881—three years before Elk and 17 years before Wong Kim Ark. Morse cites the Supreme Court’s Slaughterhouse Cases for the proposition quoted in the brief (“The words ‘subject to the jurisdiction thereof’ exclude the children of foreigners transiently within the United States….”), but Wong Kim Ark explained why Justice Samuel Miller’s dictum in Slaughterhouse should not be followed. (See WKA at 678-680.) Miller’s Lectures on the Constitution were published in 1891—seven years before Wong Kim Ark—and they cite no authority for the key statement to which the brief refers (“If a stranger or traveler passing through, or temporarily residing in this country, who has not himself been naturalized, and who claims to owe no allegiance to our Government, has a child born here which goes out of the country with its father, such child is not a citizen of the United States, because it was not subject to its jurisdiction.”). Moreover, neither of Miller’s qualifications—“who claims to owe no allegiance to our Government” and “which goes out of the country with its father”—applies to the vast majority of individuals targeted by the Executive Order. Hannis Taylor’s Treatise on International Public Law was published in 1901—three years after Wong Kim Ark—but it does not discuss or cite to Wong Kim Ark. Instead, Taylor supplies a “Cf.” citation to Section 183 of Wharton’s Digest of International Law—published in 1886, 12 years before Wong Kim Ark—which is the source of the quotation in the brief (“Children born in the United States to foreigners here on transient residence are not citizens, because by the law of nations they were not at the time of their birth ‘subject to the jurisdiction’”). Finally, John Westlake’s International Law was published in 1904—six years after Wong Kim Ark—but it, too, does not mention that case. Instead, it relies upon the same section of Wharton’s Digest and the same diplomatic cases that Chief Justice Melville Fuller discusses in his Wong Kim Ark dissent. (See Westlake, at 219-220; WKA, at 719.)
Wharton’s Digest is also the source for this remark by William E. Hall that DOJ quotes on page 25: “[A] fortiori the children of foreigners in transient residence are not citizens, their fathers being subject to the jurisdiction less completely than Indians.” Hall was an English lawyer who died in 1894, four years before Wong Kim Ark. His Treatise on International Law was well regarded, but by no stretch of the imagination was he an authority on American constitutional law. Hall’s remark appears in the footnote of a paragraph in which he describes how citizenship is handled in Italy, England, Portugal, the Netherlands, France, and the United States, devoting a single sentence to each of them. His sentence on the United States is tentative: “In the United States it would seem that the children of foreigners in transient residence are not citizens, but that the children of foreigners, who are in more prolonged residence, fall provisionally within the category of American citizens, though they lose their American character if they leave the United States during their minority.” Hall then drops the footnote on which DOJ relies, which states:
Happily, an administrative gloss [on the Citizenship Clause] has been provided which seems—if I rightly understand it—to afford a very reasonable and convenient sense. Starting from the judicially ascertained circumstance that Indians are not citizens of the United States because they are not, in a full sense, ‘subject to the jurisdiction’ of the United States, it is considered that a fortiori the children of foreigners in transient residence are not citizens, their fathers being subject to the jurisdiction less completely than Indians. Wharton’s Digest, § 183.
In sum, Hall is not even offering his own independent opinion in this passage, but merely reporting the pre-Wong Kim Ark opinion of another writer—Wharton—that he finds “reasonable and convenient.”
Wharton’s Digest and the Frelinghuysen, Bayard, Marcy, and Fish letters
On page 28, the brief finally turns to Wharton’s Digest itself, instead of relying on it indirectly by quoting Hall, Taylor, and Westlake. It does so by selectively quoting passages from Wharton that seem to indicate that two secretaries of state, Frederick Frelinghuysen and Thomas Bayard, adopted the position “that the Citizenship Clause did not confer citizenship upon children born in the United States to non-resident alien parents.” Like so many other parts of DOJ’s defense of the Executive Order, the Frelinghuysen and Bayard letters are featured in Chief Justice Fuller’s dissent in Wong Kim Ark. (See WKA at 719.) When carefully examined in their original context, however, these letters provide only limited support for DOJ’s argument about the Citizenship Clause, while other parts of Wharton’s Digest—and Wong Kim Ark itself—conflict with it.
As to Frelinghuysen, for example, DOJ’s argument seems misplaced. His 1885 letter to John Kasson, the American envoy to Germany, does not discuss the Citizenship Clause, but focuses instead on four provisions of the Revised Statutes of 1874: sections 2168 and 2172 (pertaining to naturalization) and sections 1992 and 1993 (pertaining to statutory citizenship). By contrast, Bayard’s 1885 letter to Boyd Winchester, the American minister to Switzerland, does briefly refer to the Citizenship Clause, noting without explanation that a child born in Ohio to German parents, who moved to Germany before the age of two and never returned to the United States, “was on his birth ‘subject to a foreign power’ and ‘not subject to the jurisdiction of the United States.’” Bayard addresses the issue presented by these circumstances “on general principles of international law,” however, and in another part of his letter that DOJ ignores, he indicates that the same individual would have retained a right to American citizenship if he had never left the United States. Moreover, in another letter he sent the following year to James Fenner Lee, the American minister to Austria, Bayard expressly refrained from deciding whether an American-born child of Austrian parents, who moved to Austria at age five and thereafter never took any steps to claim U.S. citizenship before petitioning Lee for a passport in 1886, was an American citizen “at the time of his birth” under the Fourteenth Amendment. (See Wharton at 397-402.)
Bayard was a diehard Southern Democrat, whose three terms in the Senate were marked by hostility toward civil rights, protest against requiring Southern states to ratify the Fourteenth Amendment to rejoin the Union, and opposition to Reconstruction generally. He was appointed Secretary of State in 1885 by Grover Cleveland, the first Democrat to be elected president in almost 30 years. It seems likely, then, that Bayard may have been more adverse to birthright citizenship than any of his recent predecessors. Other diplomatic letters in Wharton’s Digest that DOJ ignores in its brief lend support to this assumption. In 1854, for example, Secretary of State William Marcy wrote a letter to John Mason, the American minister to France, in which he noted that “children of foreign parents born in the United States” who relocated to their father’s home country were American citizens because “it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship.” (Wharton at 394 (emphasis original)). In Wong Kim Ark, the Court cited Marcy’s letter, along with three opinions by U.S. Attorneys General Jeremiah Black in 1859 and Edward Bates in 1862, making similar points. (See WKA at 664.) Likewise, in 1871, Secretary of State Hamilton Fish informed George Perkins Marsh, the American minister to Italy, that the Citizenship Clause was “simply an affirmance of the common law of England and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage.” Wong Kim Ark relied upon Fish’s letter, too, citing Wharton as its source. (See WKA at 689-690, citing Wharton; emphasis added).
House Resolution 2199 (1874)
Several of the diplomats discussed above, including Frelinghuysen, Bayard, and Kasson, were members of Congress in 1874, when H.R. 2199, the bill to which the brief refers on pages 27-28, was proposed. According to DOJ, this bill “would have provided that ‘a child born within the United States of parents who are not citizens, and who do not reside within the United States, . . . shall not be regarded as citizens thereof.’” DOJ further claims that because this bill generated little debate and failed on other grounds, “members of Congress accepted that children born of non-resident parents were not subject to the United States’ jurisdiction under the Citizenship Clause.” Although some members of Congress might have preferred this rule, the brief neglects to mention that the only member who discussed this proposal in the Congressional Record, Robert S. Hale of New York, objected that it would “change the existing law.” Without any recorded dissent, Hale explained this remark by observing that “the recognized rule within the United States” under the newly adopted Fourteenth Amendment
has no respect to the circumstances under which the person may have been born, or the status of the parents at the time of his birth; whether the father of the child born here is permanently domiciled within our borders, or is here for temporary and commercial purposes, or is a mere visitor or a casual traveler within our boundaries. If the child is born within the United States, by that birth he is a citizen of the United States. (2 Cong. Rec., 43rd Cong., 1st Sess. 3460)
Hale’s clear statement and the fact that no member of Congress publicly disagreed with it appear directly at odds with DOJ’s claim that “members of Congress accepted that children born of non-resident parents were not subject to [U.S.] jurisdiction under the Citizenship Clause.”
An additional problem concerns the ellipsis that DOJ inserts into its quotation of the bill on page 27 of the brief. This ellipsis conceals an aspect of the bill that undercuts DOJ’s interpretation of it. The full language of H.R. 2199 provided that “a child born within the United States of parents who are not citizens, and who do not reside within the United States, and who are not subject to the jurisdiction of the United States, shall not be regarded as citizens thereof.” 2 Cong. Rec., 43rd Cong., 1st Sess. 3279 (emphasis added). By omitting the italicized phrase, DOJ encourages the reader to infer that the bill’s parental domicile requirement was a consensus interpretation of the Citizenship Clause—part of its original meaning—rather than a new requirement of birthright citizenship that some members wanted to adopt in 1874. The ellipsis creates a false impression, in other words.
The 1910 Spanish Treaty Claims Commission Report
On pages 28-29, the brief quotes a 1910 report by Assistant Attorney-General William Wallace Brown on behalf of the Spanish Treaty Claims Commission, which states that “it has never been held, and it is very doubtful whether it will ever be held, that the mere act of birth of a child on American soil, to parents who are accidentally or temporarily in the United States, operates to invest such child with all the rights of American citizenship.” Brown was a well-known figure at the time, who fought in the Civil War and served two terms in the House of Representatives. The statement at issue was not written by Brown, however, but by an “Assistant Attorney” named “E.S. Hutson,” about whom little seems to be known. The statement was made in a 55-page Appendix to Brown’s report entitled “Brief on the Law of Citizenship,” authored by Hutson.
Hutson did not support his assertion with any legal authority. It seems to have been motivated by the problem collecting taxes from or enforcing other laws on American-born children who leave the United States and never return, as well as by assumptions about the problem of “dual allegiance” that the Supreme Court later rejected in Afroyim v. Rusk in 1967. The section of the Appendix in which the statement appears, entitled “Citizenship in the International Sense,” is mostly a copy-and-paste job, with familiar quotations from Elk, Wong Kim Ark, Miller’s Lectures, Hall’s Treatise, and Wharton’s Digest, including several of the diplomatic letters already discussed. At the end of a long string of such quotations—approximately 28 in all—Hutson added a few paragraphs of his own analysis, noting that it differed from that of the Spanish Treaty Claims Commission itself. Furthermore, Hutson later acknowledged that his view also differed from that of the State Department. (See Hutson at 119-125, 124, 147.)
Bouvé’s Treatise on the Exclusion and Expulsion of Aliens (1912)
A far more authoritative source on the American understanding of birthright citizenship after Wong Kim Ark is Clement L. Bouvé’s Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States (1912), which the brief quotes on page 38 and cites on page 41. Bouvé was a Harvard-educated lawyer, whose 915-page Treatise was one of the first serious efforts to systematize American immigration law. It was reviewed in the Harvard, Yale, Columbia, and Penn law reviews, among other journals, and has functioned ever since as an important resource for judges, lawyers, and immigration officials. In the 1982 case of Plyer v. Doe, for example, the Supreme Court drew upon Bouvé’s Treatise when, following a rule laid down in Wong Kim Ark, the Court equated “subject to the jurisdiction” with the phrase “within the jurisdiction” in the Equal Protection Clause. (See Plyler, 457 U.S. 202, 211 n.10 (1982)).
In the very pages of his Treatise on which the Court drew in Plyler (425-427), Bouvé squarely addressed the topic of American children born to “Aliens Unlawfully Residing in the United States.” Without hesitation, Bouvé explained that such children were American citizens:
Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents from acquiring a residence or domicile—it is immaterial which—in this country. True, the parents never acquired a municipal status by virtue of or under the immigration law; and they never acquired a lawful domicile in the sense that they were never entitled to enter for the purpose of establishing a home. But the fact remains that they entered this country and proceeded to reside here…in enjoyment of every benefit which the law of the United States confers on persons lawfully resident here, and under the same duty to carry out their correlative obligations. Their temporary allegiance to the United States was complete and gave rise to reciprocal protection on the part of the state, unaffected by the fact that in order to enjoy and exercise the rights and duties incident thereto they had violated the immigration law (Bouvé, 425-426).
Bouvé did propose an exception to this rule in one unusual circumstance, when a child’s mother was denied admission to the United States and was in detention, awaiting deportation. Such a child is not born “subject to the jurisdiction of the United States” for purposes of the Citizenship Clause, he suggested, because a minimal “residence” condition that he assumed was required for birthright citizenship would not be fulfilled. In the far more typical case of children born to alien parents unlawfully residing in the United States, however, Bouvé affirmed without reservation that such children were natural born American citizens.
The state may prevent the existence of [temporary allegiance], by making it impossible for the alien to acquire a residence within its territorial limits, or, if the condition exists may withdraw its protection by expelling the foreigner. But as certain as is the fact that any such alien resides within the limits of a given sovereign state, just so certain is it that the mutual relation of allegiance and protection exists. To deny this would be to deny the fact of sovereignty itself….The case under discussion would seem to differ from that of the child [who] is born in detention in this: that the latter at the time of his birth is not residing nor is his mother residing in the United States, and, therefore, he is not born in allegiance to or subject to the jurisdiction thereof; while the child born of alien parents who, though under the immigration law they have no right to do so and are subject at any time to deportation thereunder, are nevertheless residing in the United States and owe temporary allegiance thereto, is necessarily born in allegiance to, and, therefore, is a citizen of this country (Bouvé, 426-27).
Curiously, DOJ does not refer to these illuminating passages from Bouvé’s Treatise, opting to highlight instead a casual aside about domicile that Bouvé made two pages earlier. Nor does it discuss Justice Stephen Field’s influential opinion in In re Look Tin Sing, which spawned an entire line of federal cases on birthright citizenship to which Bouvé referred on page 413 of his Treatise, and on which the Court relied in Wong Kim Ark. (See WKA at 697.) Nor does it discuss U.S. State Department official Frederick Van Dyne’s 1904 volume on Citizenship of the United States that Bouvé endorsed on page 419 of his Treatise, another authority far more relevant than Hutson or any second-hand commentary on American citizenship by English lawyers such as Westlake and Hall. Nor, finally, does DOJ engage with yet another part of Bouvé’s Treatise, which identified the precise passages in Wong Kim Ark that appear to undercut the distinction between “political jurisdiction” and “regulatory jurisdiction” on which DOJ principally relies in its brief. (See generally Bouvé at 417-419; WKA at 681-682, 687-686, 693-694.) In a subsequent piece, I will turn to all of these topics and examine their significance for DOJ’s fanciful and unconvincing defense of the Executive Order.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions