On April 1, the Supreme Court will hear oral argument in Trump v. Barbara, which presents the question whether President Trump’s executive order on birthright citizenship is lawful.
Trump’s executive order addresses the meaning of the Fourteenth Amendment’s Citizenship Clause, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” It also addresses the meaning of the federal statute, 8 U.S.C. § 1401(a), that states that “a person born in the United States, and subject to the jurisdiction thereof, is a “citizen[] of the United States at birth.”
The EO states that a person born in the United States is not a citizen of the United States by virtue of that birth
(1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or
(2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
The EO provides that it “shall apply only to persons who are born within the United States after 30 days from the date of this order.” The Trump administration has agreed that the 30-day period would run from the date that the EO is permitted to go into effect. But a ruling for the Trump administration would mean that anyone whose claim to be a citizen depends on having been born in the United States would not in fact be a citizen if that person falls within either of the two categories described in the EO. Those categories might well include millions of individuals, including those who were born to mothers who were thought to be citizens but who would now be understood to have been unlawfully present in the United States.
There has been more written on the constitutional question than I could possibly read or summarize. In this post, I want to focus instead on the statutory question—specifically, on whether the Court might hold that the EO’s directive violates section 1401(a) and thus find it unnecessary to reach the constitutional question.
Here’s a quick (and selective) summary of the competing positions of the Trump administration (set forth in the Solicitor General’s opening brief and reply) and of those challenging the EO (in their response):
Challengers: Section 1401(a) was first enacted in 1940 and re-enacted verbatim in 1952. It incorporates the understanding of the phrase “subject to the jurisdiction of” that prevailed at the times of those enactments. At those times, Congress, consistent with the Court’s 1898 ruling in Wong Kim Ark, understood that phrase to incorporate the English common-law rule of birthright citizenship and its exceptions to that rule, with the sole additional exception of Native American tribal members. That understanding is confirmed by decades of administrative practice (and other evidence).
Trump administration: The meaning of section 1401(a) depends on what the Citizenship Clause actually means, not what Congress thought it meant in 1940 or 1952. By transplanting the phrase “subject to the jurisdiction thereof” from the Citizenship Clause to section 1401(a), Congress incorporated the meaning that phrase carries in the Constitution. Challengers are wrong to say that their interpretation of the phrase “subject to the jurisdiction thereof” was well settled by 1940 or 1952.
Challengers: The government does not cite a single authority for its position that the meaning of section 1401(a) depends on what the Citizenship Clause actually means. The Court held in United States v. Kozminski (1988) that statutory language “clearly . . . borrowed” from the Constitution incorporated “the understanding of the Thirteenth Amendment that prevailed at the time of” the statute’s enactment. The Court made clear that any later reinterpretation of the Thirteenth Amendment would have no effect on the meaning of the statute.
Trump administration: The statute’s verbatim inclusion of the constitutional standard naturally incorporates the Clause’s objective meaning. If a statute had been enacted in the early 20th century guaranteeing “equal protection of the laws,” a court today would read it as forbidding segregation—even though Plessy v. Ferguson would have led the Congress that enacted it to assume, incorrectly, that separate can be equal. Kozminski does not suggest otherwise. The parties did not raise, and the Court did not address, arguments distinguishing between the Amendment’s original meaning and its perceived meaning at the time of the statute’s enactment.
This SCOTUSblog post by Akhil Amar, Vikram Amar, and Jason Mazzone presents additional argument and evidence in support of the challengers’ argument that that the case can be decided on the basis of section 1401(a).
As the Chief has put it, “If it is not necessary to decide more, it is necessary not to decide more.” My guess is that the Chief will be part of a supermajority of the Court that rules that the EO violates section 1401(a) and that declines to address the constitutional question.