One needs more than a close case and divided dissenters to overturn 128 years of precedent.
One needs more than a close case and divided dissenters to overturn 128 years of precedent.
T he factor that we’ve heard too little about in Trump v. Barbara is the role of stare decisis, the doctrine of respecting settled precedents. Not a single justice mentioned the issue explicitly. On one level, that is not surprising. The signal precedent on birthright citizenship of the children of foreigners, United States v. Wong Kim Ark (1898), did not involve the two subjects of Donald Trump’s executive order: the children of transients (or “birth tourists”) and the children of illegal aliens. Moreover, the government conspicuously declined to ask the Court to overrule Wong Kim Ark.
Justice Clarence Thomas, in his dissent, insisted that his reading of the citizenship clause to bar the children of transients from birthright citizenship “is fully consistent with” Wong Kim Ark. When even Thomas isn’t trying to flip the table, it’s not going to flip.
Nonetheless, the major obstacle that Wong Kim Ark presented to the Trump position was apparent from the start. Judicial decisions have a holding: what the court concludes about how the law applies to the facts. That’s a precedent. They sometimes also have dicta: comments that the opinion makes that aren’t necessary to the decision. Dicta may be persuasive, but it doesn’t bind anyone in the future. But in between those two poles there is the reasoning: the justifications and doctrines and readings of the meaning of texts that the court uses to reach its conclusions. Reasoning is also supposed to be accorded precedential respect.
Then there’s a further complication: what you might call flourishes, where the court cites things that aren’t really necessary to justify its decision by its own reasoning but that make the case sound like an easier conclusion. Flourishes are generally a species of dicta, but they also sometimes signal that the Court is marking off the outer limits of its decision and notifying the future that beyond that, a new decision may be required tomorrow to see how far today’s reasoning extends.
The problem for the Trump administration and the dissent, as I’ve detailed, was that they were trying to argue around a direct confrontation with the holding of Wong Kim Ark while ignoring its reasoning — and worse, relying on flourishes in a prior decision, Elk v. Wilkins (1884), even though it was written by the same justice (Horace Gray) who wrote Wong Kim Ark, and even though Gray in Wong Kim Ark explicitly disavowed the precedential force of his prior flourishes. Elk was about the unique legal status of Native American tribes, whom everyone agrees to have been excluded from the citizenship clause. The problem for the challengers and the majority was that there were also flourishes in Wong Kim Ark about the domicile of Wong Kim Ark’s parents. Let’s explain each of these as concisely as possible.
Reasoning Around Wong Kim Ark
Wong Kim Ark, like most 19th-century opinions drafted in longhand or delivered orally, is more rambling and less tightly argued than today’s highly professional opinions. That said, Gray was a pioneer in bringing scholarship to the Court’s work. His opinion in Wong Kim Ark is the target of brickbats in the dissents by Thomas (who characterizes it as “filled with meandering dicta” with reasoning that “evolved over the course of the opinion”) and Justice Samuel Alito (who complains that its “disquisitions on other matters” than the text seems “aimed to divert as much attention as possible from what those provisions actually say”). But it actually lists its main points in a series of headings that follow a logical train, and the majority opinion of Chief Justice John Roberts in Barbara hews closely to the tracks laid down by Gray. The five main points:
- First, English common law fixed the place of birth as the source of citizenship. This rule applied, said the Wong Kim Ark majority, “whether the parents were settled, or merely temporarily sojourning, in the country,” a point on which the Wong Kim Ark dissenters agreed: “The English common law rule recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents.” It’s fair to say that the discussion of sojourners was dicta, but the overall approach to the significance of the common law was not.
- Second, the English common law rule was the governing rule in antebellum America (cited in the widely noted New York Chancery opinion of Lynch v. Clarke, in the commentaries of Justice Joseph Story, and in the Dred Scott dissents), albeit adapted for the distinctive American rule that a citizen or subject had a natural right to renounce his or her allegiance and naturalize to a new nation.
- Third, no settled rule of international law before 1866 was inconsistent with American adherence to the English common law.
- Fourth, the citizenship clause, like the Civil Rights Act of 1866, was broadly worded and represented by its proponents to work no change in the general antebellum rule other than to ensure that no racial restriction (such as in Dred Scott) would create new exceptions to the rule. Instead, drawing on the congressional debates over the citizenship clause, the Wong Kim Ark Court concluded that the exceptions were narrowly drawn: Native American tribes as separate domestic sovereigns, and the children of foreign sovereign representatives such as foreign ambassadors. In analyzing the text to reach this conclusion, the Wong Kim Ark majority found that the phrase “subject to the jurisdiction thereof” in the Citizenship Clause tracked Chief Justice John Marshall’s broad view of a government’s sovereign jurisdiction in Schooner Exchange v. McFaddon (1812) and had the same meaning as the phrase “within its jurisdiction” in the due process and equal protection clauses of Section 1 of the 14th Amendment.
- Fifth, the congressional debates over the citizenship clause showed no sign that the clause was understood or intended to exclude Chinese subjects, notwithstanding a good deal of debate specific to them.
These are the logical steps of the Wong Kim Ark Court’s reasoning about the meaning of the citizenship clause. They grounded its reading of the text in an interpretation of the law that preceded its adoption, and in what Gray saw as the best available contemporaneous evidence of how its language was originally understood. They reflected points of furious contention on the Wong Kim Ark Court between the majority and the dissent. Whether or not you buy its arguments, I have a very hard time reading that opinion end to end and treating the building blocks of the Court’s methodical reasoning as dicta. They formed the case for treating the citizenship clause as a broad rule with very limited exceptions, from which it followed that nothing in Wong Kim Ark’s case took him out of the heartland of the clause.
Alito disagreed with that chain of reasoning. Fine: The Court today often finds the reasoning of its predecessors lacking, and originalists aren’t supposed to be slavishly devoted to what Antonin Scalia called “moderate” interpretations of the text, “halfway between what it really means and what you’d like it to mean.” If it’s just plainly wrong, it should be overruled. But if Wong Kim Ark got the citizenship clause wrong, it’s the Court’s job to work through the stare decisis inquiry and decide if it’s worth overruling — something it just did to overrule precedents in Trump v. Slaughter and NRSC v. FEC. And it does that even when it’s overruling the reasoning rather than the holding of past cases, as it did to the Chevron rule without reconsidering the actual facts of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Importantly, the case for overturning a prior precedent requires showing that the precedent is more than just a close call — there needs to be a convincing showing that it was wrong from the day it was decided. Roe v. Wade, for example, was a decision that was obviously wrong, having no connection whatsoever to the text or the original understanding.
But Alito didn’t make that case. Neither did Thomas, who at odds with Alito’s position argued that his view was entirely consistent with Wong Kim Ark. (Note that Alito did not join the Thomas dissent, which attracted only the partial support of Justice Neil Gorsuch, and nobody else joined Alito’s dissent.) That’s what makes stare decisis the dog that didn’t bark here: A 128-year-old precedent at the heart of the case was grounded on reasoning that stood as an obstacle to what the dissenters thought should be the correct outcome of the case, and all three branches — Congress, the executive branch, and the courts — had assumed since at least the 1940s that this settled the matter. In such a case, departing from precedent requires the intellectual heavy lifting to show why it needs to happen. Yet, Alito was the only member of the Court to even come close to advancing an argument for overruling Wong Kim Ark, and even he wouldn’t actually say that should be done.
Thomas argued that Wong Kim Ark didn’t require overruling by stressing how often Wong Kim Ark — from its recitation of the facts to its conclusion — mentioned that Wong Kim Ark’s parents were “domiciled” in California. Leaving aside the fact that this would probably be a position fatal to the administration’s stance on the children of illegal aliens (a point to which Thomas nodded), the problem is that this is conspicuously a flourish rather than an element of the reasoning of Wong Kim Ark.
There’s no doubt that Gray’s opinion went out of its way to emphasize facts sympathetic to Wong Kim Ark — including his parents’ California domicile. And maybe that was necessary to get some members of that Court to sign on to that opinion, a factor that is an all-too-common contributor to less-than-clear reasoning in the Court’s opinions. But you will search the Wong Kim Ark majority opinion in vain for an argument that domicile was a decisive or even important factor in its analysis of how the citizenship clause works. If parental domicile matters in the citizenship clause, why is that? The Wong Kim Ark Court never says. It’s not in its analysis of the language, it’s not in its analysis of the common law or international law, and it’s not in its analysis of the congressional debates. Thomas would rejoin that his deeply researched opinion shows that domicile was an embedded assumption. But that doesn’t address the fact that the Court in Wong Kim Ark said at great length why it was doing what it was doing, domicile wasn’t the reason, and the Barbara majority followed the reasoning of Wong Kim Ark.
For the critics who are trying to substitute anger at the Barbara outcome for legal critique of its reasoning — many of whom say forthrightly that they think Wong Kim Ark was wrong — they should be asking why neither the dissenters nor the government were willing to call for its overruling, and why the dissenters weren’t able to reach a consensus on what Wong Kim Ark means. If Alito and Thomas were so clearly correct, why couldn’t they even persuade each other?
The simple reality is that Donald Trump tried to overturn a long-standing assumption of our legal system without laying the groundwork over time, on the basis of an argument that was overbroad in its aims yet too narrow in its reasoning. That was always likely to fail.
Would it have worked better if he had gotten Congress to sign on, so he wasn’t just standing on a naked assertion of executive power, and if he’d taken a narrow rifle shot at the transients issue without the baggage of the much weaker argument on children of illegal aliens? Maybe. He’d have gotten one more vote, from Justice Brett Kavanaugh, if he’d had a statute on his side. He quite possibly would have persuaded Roberts as well, given how highly Roberts values deference to the deliberate work of Congress. I doubt that any of that would have persuaded Justice Amy Coney Barrett, although I suspect that Barrett (who cares about the proper presentation of questions) would have been at least more receptive to a discussion of overruling Wong Kim Ark if the government had actually asked the Court to do so.
Ducking the Question
Finally, some have argued as a matter of prudence and judicial restraint — Jonathan Adler makes this case — that the Court should have done something like what Kavanaugh did: conclude that Trump couldn’t do this without first going to Congress, but duck a decision on what the Constitution means. Not foreclosing the constitutional question, some say, preempts the political process in the way that Roe v. Wade and Dred Scott did. The problem with this argument is that it may be a species of prudence, but it’s legally wrong. Not one justice thought that the 14th Amendment allows Congress to define the scope of the citizenship clause. Even Kavanaugh only argued that Congress had (as it may) raised the birthright citizenship ceiling higher than the Constitution requires — not that it can go below what the Constitution defines as the floor.
There’s a reason for that. Section 5 of the 14th Amendment allows Congress to decide how to enforce the amendment’s protections by legislation. But as the Court held in City of Boerne v. Flores (1997), it doesn’t allow it to redefine what those protections are in the first instance. The last thing anybody was prepared to do in Barbara was debate overturning City of Boerne, which has become one of those systemic precedents that pervades the law of the Reconstruction Amendments.
In any event, Kavanaugh’s supposedly statesmanlike solution was built on a fiction. The 1940 and 1952 immigration acts literally just reproduced the text of the citizenship clause. That is invariably taken by the Court in other contexts as a signal that Congress intends to legislate coterminous with how the Court reads the Constitution — not to foreclose further constitutional development. Even if the justices thought that the wiser path would be to let Congress decide this question, it’s their obligation to say what the framers of the 14th Amendment and the immigration laws did, not what they ought to have done.