Interesting: At the ongoing oral argument of the birthright citizenship case, Justice Brett Kavanaugh asked Solicitor General John Sauer whether Section 5 of the 14th Amendment — which endows Congress with power to enforce the provisions of the amendment “by appropriate legislation” — gave Congress authority to interpret the term “subject to the jurisdiction thereof” in Section 1 (the birthright citizenship provision).
Sauer observed that this was a good question that he hadn’t yet thought through.
I’m surprised by that. To repeat what I posited this morning, I believe it’s entirely possible that the Court will rule that there is room for the political branches to define what “subject to the jurisdiction” means, but that this can only be done by Congress through legislation presented to the president, not by the president acting unilaterally.
It seems the government is putting all its eggs in the basket of a favorable, conclusive judicial interpretation of what “subject to the jurisdiction” means. This is what Wong Kim Ark provided.
On that, I’d note: That 1898 case is generally taken by the commentariat to undermine the Trump administration’s position against birthright citizenship for the children of illegal aliens; yet Sauer has construed the case to hold that Wong Kim Ark turns not merely on the fact that the child was born in the United States but that, at the time, his Chinese parents were lawfully domiciled here. Chief Justice John Roberts (among other justices) has acknowledged that the word “domicile” is indeed discussed 20 different times in Wong Kim Ark, and he noted that the government is not asking for that case to be overruled because it believes the case helps the administration’s position.