On the first day of his second term, President Trump issued Executive Order No. 14160, which directed federal officials not to treat two categories of U.S.-born persons as United States citizens if their fathers weren’t citizens or lawful permanent residents: (i) those whose mothers were “unlawfully present in the United States … at the time of said person’s birth” and (ii) those whose mothers were in the U.S. on a “lawful but temporary” basis when they gave birth.
On June 30, in Trump v. Barbara, the Supreme Court held that the Citizenship Clause of the Fourteenth Amendment establishes U.S. citizenship for both of the categories of U.S.-born persons whom Trump targeted.
Most commentators have described the Court as having split 5-4 on the constitutional question. Some have even warned that “conservatives now know they are only one vote away from eliminating birthright citizenship by judicial fiat.” Emboldened by the closeness of the vote, and by a suggestion in Justice Brett Kavanaugh’s separate opinion, President Trump and others have urged Congress to amend the federal birthright citizenship statute to parallel the Trump executive order, hoping that such legislative action might tip the scales with the Court.
On July 9, Representative John McGuire (R-VA) took up that invitation. He introduced H.R. 9633, the “Birthright Citizenship Clarification Act of 2026,” which would amend federal law to preclude birthright citizenship for both categories of U.S.-born persons identified in the Trump executive order. In McGuire’s press release, spokesman Fred McGrath announced that “[w]e are confident the Court’s six conservative justices would find that [the legislation] meets the constitutional standard if challenged.” (Five days later, on July 14, at least two additional bills were introduced in Congress—H.R. 9662 and S.4973—that would purport to amend the federal statute to similar effect. In this article I focus on H.R. 9633, but the analysis applies as well to the similar introduced bills.)
As I explain in this piece, the alleged 5-4 headcount in Barbara isn’t as clear—and certainly not as categorical—as it might appear at first blush. In fact, if one takes at face value the reasoning in the various dissenting opinions, the more accurate headcount is at least 7-2, and perhaps even 8-1, against the constitutionality of the central provision of the Trump order and H.R. 9633, which would deny birthright citizenship to children whose mothers had entered or remained in the U.S. unlawfully.
To be sure, one of the four Justices in question—Justice Samuel Alito—offered a reading of the Fourteenth Amendment, and of the Supreme Court’s landmark decision in United States v. Wong Kim Ark (1898), that would establish the constitutionality of the Trump order as to both categories of U.S.-born persons it describes—those whose mothers had entered or remained in the U.S. unlawfully, as well as those whose mothers gave birth while legally but temporarily in the country. Justice Alito therefore would clearly uphold the constitutionality of both prongs of H.R. 9633. Two of the other three dissenting Justices, however—Justices Clarence Thomas and Neil Gorsuch—adopted an alternative reading of the Constitution that would guarantee birthright citizenship for the vast majority of the children in the first Trump category, i.e., those born in this country to a woman who had entered (or remained in) the U.S. unlawfully. And although the fourth Justice, Justice Brett Kavanaugh, endorsed a more limited reading of the Fourteenth Amendment, akin to Justice Alito’s, he appears to agree with the majority of the Court that the Trump order is unconstitutional under the binding precedent of Wong Kim Ark, and Kavanaugh did not argue that it would be appropriate for the Court to disregard stare decisis to overturn that precedent (a precedent the Court has now reaffirmed 128 years later, thereby further entrenching the strength of its stare decisis status).
Therefore, based simply upon what the Justices themselves wrote in Barbara, it’s far from clear that there would be even three or four votes on the Court, let alone the six that Rep. McGuire is prognosticating, in favor of the constitutionality of the centerpiece provision of H.R. 9633.
Part I of this article describes the Court’s holding in Barbara and offers some important context for understanding the dissenting Justices’ opinions—including, in particular, why none of them relied upon the “original public meaning” of the constitutional text as the basis for endorsing the constitutionality of some or all of the Trump executive order.
In Part II, I discuss the rationales that each of the four dissenting Justices embraced and I explain, in particular, why the test that Justices Thomas and Gorsuch articulated would not deny birthright citizenship to most children born in the U.S. to women who had entered or remained in the country unlawfully. Part II also includes some discussion of why the dissenters’ views are wrong on the merits, although that’s not my principal focus here.
I.
Barbara should have been an easy case resulting in a unanimous decision, as a simple matter of stare decisis. As Chief Justice John Roberts explained in his majority opinion (pp.14-16), the constitutional question was asked and answered almost 130 years ago. In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the parties agreed that the Citizenship Clause largely codified the rule for U.S. citizenship that existed before 1868 (with the exception that it guaranteed citizenship for U.S.-born persons of African descent, contra the Court’s infamous holding in Dred Scott), but they disagreed on what the pre-1868 citizenship law was. In particular, they disagreed about whether the law of the United States had incorporated the “jus soli” (“right of the soil”) principle from the British common law. Solicitor General Holmes Conrad—like SG John Sauer in the Barbara case—argued to the Court that the U.S. had not adopted the English jus soli principle; Wong Kim Ark argued, by contrast, that it had.
In a meticulous, 53-page opinion for a 6-2 majority of the Court, Justice Horace Gray rejected Conrad’s argument and, on the basis of Gray’s analysis, the Court held that Wong Kim Ark had become a U.S. citizen by virtue of his birth in San Francisco in 1873, even though his parents were not U.S. citizens but were, instead, “subjects of the Emperor of China.”
For 127 years, from 1898 until the first day of President Trump’s second term, all three branches of the federal government—and state governments, and the American people—understood the landmark Wong Kim Ark decision to have settled the question and acted accordingly: Everyone treated the persons in the two categories identified in the Trump executive order as United States citizens by virtue of their birth in the United States.
The Trump order therefore is unconstitutional as a matter of stare decisis, and Solicitor General Sauer did not ask the Court to overrule Wong Kim Ark. That ought to have made the Court’s decision in Barbara quite easy, even for Justices who might be more sympathetic to the argument offered by SG Conrad—and by the two dissenting Justices—in Wong Kim Ark.
Unfortunately, however, four of the Justices in Barbara—Justices Thomas, Alito, Gorsuch, and Kavanaugh—did not join the majority opinion, and each of the four purported to “dissent” on the constitutional question. (Justice Kavanaugh concurred in the judgment on statutory grounds.[1])
In Part II, I’ll closely examine the opinions of the four (nominally) dissenting Justices in Barbara, because they didn’t agree among themselves on the rationales for their constitutional conclusions. Before doing that, however, it’s useful to explain why neither the dissenting Justices nor the majority believed the constitutional text, standing alone, resolves the question (as some commentators had argued it does).
The text of the Citizenship Clause is relatively straightforward and unambiguous—and the Trump executive order can’t be reconciled with it:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The persons described in the Trump order were all “born in the United States” and, when they were born, they were all “subject to” the United States’ “jurisdiction,” both in the sense that they were duty-bound to comply with federal law and in the sense that the federal government was obligated to protect them. Indeed, putting aside the idiosyncratic case of an occupation of U.S. territory (which thankfully hasn’t occurred for more than 200 years), everyone born in this country is subject to the federal government’s jurisdiction on their date of birth.
To be sure, as Justice Alito noted in his dissenting opinion (pp. 11-12), the Court has often said that “jurisdiction” is “a term of many meanings.” That adage, however, is inapposite in this case because the text of the Citizenship Clause refers to the United States’ jurisdiction (rather than to the jurisdiction of a federal court), and no matter which meaning of “jurisdiction” one might apply when it comes to a sovereign state’s jurisdiction, all children in the United States would be “subject to” it.
All four of the dissenting Justices profess to be “textualists” and each has, on at least one occasion or another, insisted that the Constitution (and statutes) should be interpreted and applied based upon the “original public meaning” of the text, rather than by assessing, e.g., the framers’ intent or any original expected applications of the clause in question. Indeed, in Barbara itself, Justice Clarence Thomas repeatedly asserted that he was trying to identify the “original public meaning” of the Citizenship Clause’s text (see pp. 5, 57, 59, 70, 72; see also Justice Neil Gorsuch’s opinion at 1).
If those Justices were truly committed to “original public meaning” originalism, they wouldn’t have dissented in Barbara because there’s no serious argument that the original public meaning of the Citizenship Clause does not confer citizenship upon the newborns defined in the Trump order. It’s noteworthy that none of the four Justices disputed the common understanding that a person is “subject to” U.S. jurisdiction if she is bound to comply with federal law and the federal government is obligated to protect her. Indeed, none of the four offered any alternative meaning of the word “jurisdiction” in the Fourteenth Amendment, nor any alternative account of what it means for someone to be “subject to” a nation’s jurisdiction. Instead, as I explain in Part II, each of those Justices would either add an implicit modifying adverb to the textual phrase (Justice Alito’s view, shared by Justice Kavanaugh, that the Citizenship Clause requires exclusive U.S. jurisdiction), or add an additional, implied condition (the Thomas/Gorsuch view that there’s an implied exception for children who are not domiciled at birth in the United States). In other words, because the plain text, standing alone, would guarantee citizenship for virtually everyone born in this country, each of those four Justices had little choice but to disregard the original public meaning of the text and to rely, instead, solely upon what they see as the framers’ intent or the original expected applications of the Citizenship Clause.
In fairness, neither the majority of the Court in Barbara nor the six-Justice majority in Wong Kim Ark relied exclusively on the plain meaning of the text, either.
This might come as a surprise to some readers of the Fourteenth Amendment, because the text itself doesn’t appear to admit of any exceptions. Because the federal government has jurisdiction over everyone in U.S. territory (no matter which sense of “jurisdiction” one might employ), the Citizenship Clause appears to guarantee citizenship for virtually everyone born in this country, outside perhaps the rare case where the U.S. is occupied by a foreign nation and U.S. law does not govern.
Nevertheless, it’s been universally understood since the framing, including by the Court in Wong Kim Ark and in Barbara, that the framers did not intend to guarantee citizenship to children born in the U.S. to foreign diplomats or to persons who were born as Native American tribal members, even though (as I explained in a piece last summer) such children are “subject to” U.S. jurisdiction at birth in the sense that they have a legal duty to comply with at least some federal laws and the federal government has an obligation to “protect” them (just as it must protect virtually everyone who is present in the United States).
It’s only because of those children-of-diplomats and children-of-tribal-members exceptions—rather than the constitutional text—that there’s even been a debate about the constitutional citizenship of the two categories of U.S.-born persons described in the Trump executive order. Without those exceptions, there never would have been any litigation, let alone a divided Supreme Court decision.
Not surprisingly, then, the four dissenting Justices in Barbara placed a good deal of weight on those exceptions in the course of their analyses. They also emphasized two other things about the Nineteenth Century history:
First, in the three decades between ratification of the Fourteenth Amendment and the decision in Wong Kim Ark (1868-1898), some officials and commentators asserted that the Citizenship Clause was not designed to confer citizenship upon persons (such as U.S. World Cup striker Folarin Balogun) who were born in the U.S. to itinerant foreign visitors, or “sojourners.” And the dissenting Justices in Wong Kim Ark—Chief Justice Melville Fuller and Justice John Marshall Harlan—would have adopted that view. As Chief Justice Roberts noted in his opinion for the Court in Barbara (p.25), Fuller and Harlan would have “resisted the application of the English common law rule because it ‘recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents’” (quoting 169 U.S. at 718). (Harlan’s vivid hypothetical, which he offered to students at the Columbian College of Law — which later became the George Washington Law School — shortly after the Court issued Wong Kim Ark, was a case in which “an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism,” and the mother gave birth to a child while at the spa, before all three of them returned to England.) The six-Justice Court majority in Wong Kim Ark, however, rejected that view: as Fuller lamented—and as Harlan acknowledged to his students—the Court’s holding did not recognize such an exception. Nevertheless, Solicitor General Sauer’s argument in Barbara relied heavily upon that claim of a nontextual intended exception for children of visitors, as did the opinions of some of the dissenting Justices.
Second, in the decades preceding the 1868 ratification of the Fourteenth Amendment, few, if any, children were born in the United States as a result of their mother having unlawfully entered the country (or having unlawfully disregarded an obligation to leave), and therefore the framers did not specifically consider that sort of case. Some proponents of a newfound limit on the Citizenship Clause have suggested that if the framers had contemplated such a phenomenon, they would have excluded those children from the birthright citizenship guarantee. Indeed, that’s the express basis of Justice Kavanaugh’s constitutional analysis in his separate opinion (p.8):
“[T]he Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to … those foreign citizens who violate U.S. immigration law and illegally enter or overstay and then have children in the United States.”
Whether or not that assumption is correct, it’s not a claim about the meaning of the text, nor even about the framers’ actual intent, but instead a claim about a counterfactual original intent, i.e., about what the framers “would … have intended” had they considered a class of U.S.-born persons that were uncommon in the years preceding 1868.
II.
With that context in mind—namely, that the debate among the Barbara Justices was about the framers’ original intent (actual or counterfactual) or the way in which they expected the Citizenship Clause to be applied, rather than the original public meaning of the text—we can examine the rationales of each of the four Justices who didn’t join the Court’s majority opinion.
Justice Alito
Justice Alito’s reasoning was the most straightforward (if also the least plausible): In his view (see pp. 16-17), if a person born in the United States is at that time “subject to any foreign power”—in the sense of having any legal duties to comply with that other sovereign’s law—then their birth in the U.S. does not entitle them to U.S. citizenship. As Alito notes (p.24), “many aliens within our territorial limits are also ‘subject to [a] foreign power,’ i.e., their home country, because they must follow that country’s laws when they are abroad.” Alito is wrong to assume (p.16) that the foreign state’s authority over the person in the U.S. “limit[s]” the United States’ own jurisdiction in such cases. That’s not so: To the extent the law of the person’s home state requires her to do something that U.S. law prohibits, she must comply with U.S. law while she’s here. Alito is right, however, that some persons in the United States have legal duties to comply with the law of their home state (i.e., the law of the country of which they are a citizen) where it does not conflict with U.S. law. For example, foreign nationals may have to pay taxes to the state in which they are citizens, even while they are living in the U.S. And “[s]ome countries—Mexico, for example—even mandate military service by those [nationals] living abroad” (p.24).
According to Justice Alito, if someone living in, or visiting, the United States has such a duty to comply with the law of her state of citizenship, the Fourteenth Amendment does not confer U.S. citizenship upon her children who are born in the United States.
Justice Alito’s theory is in obvious and stark tension with the constitutional text. The Citizenship Clause does not say, or even suggest, that it does not apply to a person born in the United States when they are “subject to a foreign power.” The Clause instead expressly provides that it applies if the newborn child is subject to the jurisdiction of the United States—and the persons Alito describes are subject to U.S. jurisdiction while they’re in the U.S., even if they might also have a duty to comply with another nation’s laws in some discrete situations in which that foreign law doesn’t conflict with U.S. law.
Alito’s response to this problem is to insist that the Clause contains an implied condition: The phrase “subject to the jurisdiction thereof,” he contends (p.16), “refers to a form of jurisdiction that is exclusive.”
The Department of Justice offered a similar argument early in the litigation challenging the Trump executive order. I explained at the time why it was untenable. Soon thereafter, DOJ wisely abandoned the “exclusive jurisdiction” argument, and Solicitor General Sauer chose not to offer it to the Supreme Court—and for good reason, even apart from the fact that it contradicts the text.
For one thing, it would have radical implications, far beyond the four corners of the Trump order. For example, lawful permanent residents of the U.S. (LPRs) also remain subject to their home nations’ laws that extend extraterritorially, as do their children, yet everyone (including Trump) agrees that children born to LPRs in the United States are U.S. citizens. So, too, are children born in the U.S. to nondiplomatic employees of foreign states (such as consular officials), even though they obviously owe legal duties to their home nations.[2] Moreover, as Barbara’s counsel Cecillia Wang explained to Justice Alito at oral argument, if his view about “exclusive” jurisdiction were correct then “that would have meant that the children of Irish, Italian, and other immigrants [at the time of the framing and throughout the Nineteenth Century] … would not have been citizens, either,” a result that would clearly contravene the framers’ intent. (See also the transcript at 117-118, where Wang noted that the framers intended to guarantee citizenship to the U.S.-born children of Irish immigrants.)
Thus, as Chief Justice Roberts put it in his opinion for the Court in Barbara (p.24), Justice Alito’s condition is “a test that every child born to a foreign parent fails.” In Wong Kim Ark, the dissenting Justices would have established precisely that test, notwithstanding its effect on the children of countless European nationals. The Court rejected that view in no uncertain terms, however, in part because of its ramifications for so many U.S.-born children of European visitors (169 U.S. at 694): “To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States.”[3]
The most significant obstacle to Justice Alito’s view, however—and presumably the reason not even Justices Thomas and Gorsuch adopted it—is that, if it were correct, even Wong Kim Ark himself would not have been a U.S. citizen. As the Court in Wong Kim Ark repeated at least five times (169 U.S. at 652, 653, 694, 696, 705), Wong Kim Ark’s parents were “subjects of the Emperor of China” when Wong was born in San Francisco and, as Justice Fuller noted (id. at 725), they therefore were “bound to him [the Emperor] by every conception of duty and by every principle of their religion, of which filial piety is the first and greatest commandment.” That was true of Wong Kim Ark himself, too. See id. (“the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country”) (emphasis added). (Neither Wong Kim Ark nor the Court majority took issue with this fact—i.e., they did not suggest that Wong Kim Ark was not a subject of China, thereby bound to comply with its laws to the extent they did not conflict with U.S. law. See also id. at 650 (statement of the case) (recounting the U.S.’s view that Wong Kim Ark was “a subject of the Emperor of China”).)
Justice Alito recognizes (p.23) that the decision in Wong Kim Ark is a serious problem for his position. To circumvent that problem, Alito offered a novel reading of the Court’s holding in that case (p.27): “Wong Kim Ark is … best understood as holding that people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to any foreign power.”[4]
Alito’s effort to distinguish Wong Kim Ark on this basis doesn’t fly, however. There’s nothing in the many pages of the majority opinion to suggest that its holding depended upon the notion “that people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to any foreign power.” To the contrary, Justice Gray went to great lengths to explain that the Citizenship Clause depended upon whether the U.S.-born children of foreign nationals were subject to U.S. law on their date of birth, regardless of any duties they or their parents might simultaneously have owed to another nation, i.e., regardless of the fact that the parents and Wong Kim Ark were, as Gray repeatedly noted, subjects of the Chinese Emperor. Indeed, Chief Justice Fuller and Justice Harlan dissented precisely because Wong Kim Ark was a subject of the Chinese Emperor—those Justices believed that the majority erred in concluding that that fact was immaterial. As far as I know, no one in the Wong Kim Ark litigation itself, or in the subsequent 128 years, ever asserted, or read Wong Kim Ark to hold, that Wong Kim Ark was a U.S. citizen because he or his parents could be “seen as no longer subject to any foreign power” when he was born in 1873.
Be that as it may, and as bad as Justice Alito’s argument might be, it’s plain that application of Alito’s test would deny citizenship to both categories of children described in Trump’s executive order—a conclusion to which Justice Alito appears to be deeply committed in light of his speculation (p.38) about the dire “national security implications” of the Court’s decision in Barbara, “a mistake that will seriously affect the country’s future.” (Alito feverishly imagines (pp. 38-39) women from enemy nations who come to the U.S. “just long enough to give birth,” whose children then are “inculcated with hatred of this country” and thereafter “plot[] to harm this country,” comforted by the guarantee that they won’t lose their U.S. citizenship if they do so.)
So that’s certainly one dissenting vote on the constitutional question.
Justice Kavanaugh
Justice Kavanaugh agreed with Justice Alito about what the proper constitutional test should be: According to Kavanaugh, the Fourteenth Amendment does not confer citizenship upon persons born in the U.S. if their parents, on the date of birth, “were not U.S. citizens and were citizens of other nations, whether tribal or foreign” (p.9). That test, by its terms, would preclude birthright citizenship for both categories of persons in the Trump executive order and in H.R. 9633.
Despite this shared test, Kavanaugh differs from Alito in two respects.
First, he arrived at their common interpretation via a different analytical route. Justice Kavanaugh reasons as follows:
i. Everyone agrees that the framers of the Fourteenth Amendment intended the Citizenship Clause to have “four disparate exceptions,” including for the U.S.-born children of foreign diplomats and members of Native American tribes, even though the text does not mention those exceptions.
ii. The Court in both Wong Kim Ark and in Barbara has treated those four exceptions as a “closed set.” [I question whether the Court actually did so, in either case; but that’s how Kavanaugh reads those decisions.]
iii. The eleven Justices in the Wong Kim Ark and Barbara majorities, however, didn’t understand or apply the “basic tenets of constitutional interpretation,” which are that “other exceptions can be recognized when the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the four previously recognized Wong Kim Ark exceptions” (p.7).
iv. According to Justice Kavanaugh (p.9), “[t]he only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians”— is that “the parents in all of those varied circumstances were not U.S. citizens and were citizens of other nations, whether tribal or foreign.” [For what it’s worth, I think this is incorrect: As I’ve explained elsewhere and summarize in a footnote below, the established exceptions have a different “unifying” explanation—one that’s consistent with the Court’s opinion in Wong Kim Ark and that doesn’t extend to the children in the Trump order[5]; but, for present purposes, what matters is that Kavanaugh disagrees about the basis for the exceptions.]
v. “An exception for those born in the United States to foreign parents unlawfully or temporarily in the country”—i.e., the children identified in the Trump order—“is consistent with [Kavanaugh’s identified ‘unifying’] principle and therefore with the Fourteenth Amendment.” Id.
Kavanaugh’s preferred construction of the Citizenship Clause thus dovetails with Alito’s, even if they used different reasoning to reach that result.
The second difference between those two Justices, however, is more important for purposes of this article: In contrast to Alito, Kavanaugh appears to acknowledge that Wong Kim Ark resolved the question against the constitutionality of the Trump order. Kavanaugh doesn’t contend (as does Alito) that the holding in Wong Kim Ark was limited to persons who are indistinguishable from Wong Kim Ark himself; instead, Kavanaugh concludes that, as long as Wong Kim Ark remains the governing precedent, all persons born in the United States are birthright citizens unless they fall within one of what he refers to as the “closed set” of the four recognized, established exceptions.
Moreover, and of particular importance, in his opinion Kavanaugh didn’t contend that it would be proper for the Court to overrule Wong Kim Ark, despite his doubts about the Court’s method of constitutional interpretation in that 1898 decision.
In several recent cases, Justice Kavanaugh has opined that “[t]he history of stare decisis in this Court establishes that a constitutional precedent may be overruled only when (i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests.” Dobbs, 597 U.S. at 342 (Kavanaugh, J., concurring); see also, e.g., Kavanaugh’s separate opinions in cases such as Erlinger (2024) and Ramos (2020).
To be sure, Justice Kavanaugh doesn’t think this test makes it impossible for the Court to overrule a precedent: his vote in Dobbs; his vote in the recent Slaughter case (overruling Humphrey’s Executor); and his opinion for the Court in National Republican Senatorial Committee demonstrate as much. Nevertheless, Kavanaugh does not argue in his Barbara opinion that any of the three conditions for overcoming stare decisis, let alone all of them, applies to the Court’s decision in Wong Kim Ark. That omission is all the more striking when contrasted with Kavanaugh’s NRSC opinion, issued the very same day, in which he explained at length why the three conditions were satisfied in that case, thereby justifying overruling the Court’s 2001 ruling in FEC v. Colorado Republican Federal Campaign Comm.
When it comes to Wong Kim Ark, none of Kavanaugh’s three preconditions for overcoming stare decisis is present. For starters, even if one agreed with Kavanaugh that it was wrongly decided, Wong Kim Ark “certainly is not egregiously wrong.” Erlinger, 602 U.S. at 862 (Kavanaugh, J., dissenting). Nor has Wong Kim Ark caused significant negative jurisprudential or real-world consequences—to the contrary, for well over a century, all three branches complied with it, and treated hundreds of thousands or millions of persons as citizens who would not be citizens under Justice Kavanaugh’s test, without anyone raising any serious objections or concerns. And finally, replacing Wong Kim Ark with Justice Kavanaugh’s test not only would “unduly upset legitimate reliance interests”—including stripping citizenship from hundreds of thousands or more U.S. residents who have lived their lives as citizens, including the children of LPRs and foreign employees—but would also (as I explain in the Alito discussion above) contradict the undisputed intent of the Fourteenth Amendment framers that countless “persons of English, Scotch, Irish, German or other European parentage” in the Nineteenth Century would be treated as U.S. citizens, the way they “have always been.” 169 U.S. at 694.
No wonder, then, that Justice Kavanaugh’s Barbara opinion does not advocate overruling Wong Kim Ark.
On the other hand, at the end of his opinion (p.9) Justice Kavanaugh did include the sentence that Representative McGuire seizes upon in his new bill (H.R. 9633) that would amend the federal birthright citizenship statute: “If Congress amends § 1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country,” Kavanaugh wrote, “such a statute, as I see it, would pass constitutional muster.”
How can that sentence in Kavanaugh’s opinion be reconciled with the binding precedent of Wong Kim Ark? It might be fair to assume Kavanaugh would be open to considering whether the Court should overrule Wong Kim Ark if Congress were to enact such a statute. I don’t think it’s plausible, however, to read Kavanaugh’s remark about Congress to suggest that the conditions for such an overruling are currently satisfied—particularly because, as I explain in the previous paragraph, I think it’s fairly clear that they aren’t. And, at a minimum, on Kavanaugh’s view it would be unconstitutional for the Executive Branch to implement such legislation unless and until five or more Justices were to conclude that Wong Kim Ark can and should be overruled—and that Barbara itself should be overruled, too. For that reason, I think it’s premature, at best, to count Justice Kavanaugh as a vote in favor of the constitutionality of legislation, such as the McGuire bill, that would purport to deny citizenship to persons described in the Trump order.
I don’t want to overstate the point, however. After all, Justice Kavanaugh went out of his way to invite Congress to act. It’s therefore entirely possible he would vote to sustain the constitutionality of something like H.R. 9633. My point is simply that such a vote would require a justification for disregarding the stare decisis effect of two Supreme Court precedents (Wong Kim Ark and Barbara); and, on Kavanaugh’s own understanding of stare decisis, the predicates for such an overruling aren’t satisfied.
In sum, then, Justice Kavanaugh is a possible, but far-from-certain, second vote in favor of the constitutionality of H.R. 9633.
Justices Thomas and Gorsuch
Justice Thomas wrote a 91-page dissenting opinion. Justice Gorsuch joined the Thomas opinion and added a three-page dissenting opinion of his own. Those two Justices did not agree with Justice Alito’s and Justice Kavanaugh’s reading of the Fourteenth Amendment. Instead, they adopted the Solicitor General’s argument that if a U.S.-born person’s parents are foreign nationals, then the Fourteenth Amendment only guarantees U.S. citizenship if that newborn child is domiciled in the United States at the time of birth. (Justice Thomas invokes a variation of the term “domicile” almost 350 times in his opinion, even though that term doesn’t appear even once in the Constitution.) Moreover, according to Justices Thomas and Gorsuch, that is all the Court decided in Wong Kim Ark, given that the parties in that case stipulated that Wong Kim Ark’s parents were domiciled in California when he was born in 1873. Therefore, imposing a domicile requirement would not require overruling Wong Kim Ark (though it would, of course, now require overcoming the stare decisis effect of Barbara itself).
Thomas’ conclusion about a domicile precondition is mistaken, for reasons my colleague John Mikhail and I canvassed in detail here last September, some of which I summarize in a footnote below.[6] Accordingly, Chief Justice Roberts has much the better of the argument on this question in Part V of the majority opinion, where he explains why U.S. domicile at birth is not a necessary condition for birthright citizenship.
Moreover, numerous aspects of Thomas’ long historical account in his opinion are incomplete, inaccurate and/or misleading—including, most significantly:
- his description of the law of U.S. citizenship before the Fourteenth Amendment;
- his assertions concerning the legal effects of being “domiciled” in a jurisdiction in pre-Fourteenth Amendment law;
- his failure to identify any cases in the years between 1776 and 1868 in which the federal government (or any state government) refused to treat U.S.-born persons as citizens because they weren’t domiciled in the nation at birth;
- his misleading characterization of what the Chief Justice calls (p.6) “the antebellum era’s foremost case on the topic, Lynch v. Clarke, 1 Sand. Ch. 583 (N. Y. Ch. 1844)”;[7]
- his selective account of how the Citizenship Clause was understood in the three decades between ratification and Wong Kim Ark;
- his mistaken insistence that the holding in Wong Kim Ark depended upon Wong Kim Ark’s domicile in the United States;
- his mischaracterization of much of the majority opinion in Wong Kim Ark as “dicta”—including those passages where Justice Gray rejected domiciliation as a precondition of being “subject to the jurisdiction” of the United States—rather than as the binding, ratio decidendi of the Court’s decision;[8]
- his characterization of the views of the dissenting Justices in Wong Kim Ark;
- his failure to explain why U.S.-born children of foreign employees (such as consular officials) other than diplomats are birthright citizens even where their parents and the children were not domiciled here; and
- his extremely misleading description of how the three branches understood and applied Wong Kim Ark in the first few decades after it was decided (see this article of mine for a more accurate account, especially concerning the view within, and practices of, the Executive Branch).
This isn’t the time or place, however, for a detailed dissection of the many problems in Thomas’ analysis; such a project isn’t immediately pressing given that only one other Justice joined his opinion. For purposes of this piece—and for assessing how the Court might evaluate H.R. 9633 if Congress were to enact it—the important point is that even if Justices Thomas and Gorsuch were right that the Citizenship Clause incorporates an implied “domicile at birth” requirement for children born to foreign nationals, the vast majority of the persons described in the first category of the Trump Citizenship Order, and in H.R. 9633—i.e., children whose mothers entered or remained in the United States unlawfully—would be birthright citizens because they were (or, for future newborns, will be) domiciled in the U.S. at birth under the traditional test for domiciliation.
To see why that’s so, it’s important to understand what it means to be “domiciled” in a particular jurisdiction—here, in the United States. As it happens, because federal benefits, duties, or statuses have rarely if ever turned on whether someone is domiciled in this country, there is no uniform federal law prescribing the conditions for being domiciled in the United States. Historically, “domicile” has, instead, been relevant primarily for purposes of certain questions under international law, for choice-of-law questions relevant to state law, and to determine whether a plaintiff is a citizen of a particular state for purposes of federal court diversity jurisdiction. In those contexts, the traditional, common-law definition of “domicile” is a person’s “‘residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.’” Mitchell v. United States, 88 U.S. 350, 352 (1875) (quoting Guier v. O’Daniel, 1 Binney 349, 352 (note) (Philadelphia Orphan’s Court, 1806)). Or, as Justice Alito put it in his Barbara dissent (p.26), “[a] person’s domicile is the place where he or she intends to live indefinitely.” Justice Thomas, too, accepts something like this (p.10) as the definition of “domicile” that he believes the framers of the Fourteenth Amendment meant to implicitly incorporate as a precondition for birthright citizenship.
Moreover, courts have long applied a legal fiction that a newborn child shares the intent of her parents for purposes of assigning a domicile to the child. See, e.g., Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic ch. III, § 46; Lamar v. Micou, 112 U.S. 452, 470 (1884).
It is almost certainly the case that the vast majority of women who give birth in the United States after having entered or remained in the U.S. unlawfully both (i) reside here and (ii) intend to stay indefinitely. Those women and their children thus are domiciled in the United States at the time of the birth, according to the age-old criteria for assessing domiciliary status that Thomas and Gorsuch would read into the Fourteenth Amendment.
Justice Gorsuch emphasizes precisely this point in his separate opinion. He would have ruled against the plaintiffs’ facial challenge because, on his view, children born in the U.S. to foreign visitors are not domiciled in the U.S. at birth (p.2): “By definition, temporary visitors to this country do not choose to make a permanent home here, and their children thus cannot claim the privilege of citizenship.” [It’s important to note that Justice Gorsuch’s assumption here is too categorical, even as to the second category of persons in the Trump order—those born to foreign visitors. For example, some women who are G4 visa holders might well intend to remain indefinitely in the United States, see Elkins v. Moreno, 435 U.S. 647, 666-668 (1978), in which case their U.S.-born children would be domiciled here.]
Gorsuch notes, however, that the Trump order “also denies the benefits of citizenship to children born in this country to parents who make their permanent home here, but do so in defiance of federal immigration laws” (p.3), and he suggests that such children therefore would be domiciled in the U.S., in which case they’d be birthright citizens, even on the Thomas/Gorsuch understanding of the Fourteenth Amendment.
In footnote 10 of his opinion (pp. 57-58), Justice Thomas flags this same point, but he doesn’t resolve the question because of an argument Solicitor General Sauer had made about domicile. According to Sauer, one can’t be domiciled in a jurisdiction without the state’s “permission to remain”—which would, if true, mean that all persons living in the U.S. who lack the legal right to remain in the country, and their newborn children, could not satisfy the legal requirements for domicile. Thomas proceeds to acknowledge, however—citing Gorsuch’s opinion—that “many others understandably have suggested that long-term resident illegal aliens satisfy the elements of domicile because they reside here with the intent to permanently remain.” Thomas does not himself express a view on who’s got the better of this argument (“[s]uch questions are best resolved in the context of as-applied challenges”), but he agrees that if such persons are domiciled in the U.S., then the Citizenship Clause applies to them.
And on the merits of that question, Solicitor General Sauer was simply wrong. As the Court itself has explained, “illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State.” Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982); see also Clement Bouvé, Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States 340 (1912) (“An alien who, … entering in violation of the Immigration acts, … takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile.”).[9]
Several state courts have addressed this question in recent years, and they’ve agreed that a person’s unlawful entry into the United States, or unlawful failure to comply with the durational terms of a visa, does not preclude their state domiciliary status for purposes of applying state laws that turn on such status. See, e.g., Munoz-Hoyos v. de Cortez, 207 P.3d 951, 953 (Colo. App. 2009); Garcia v. Angulo, 644 A.2d 498, 507–10 (Md. 1994) (Chasanow & Bell, JJ., concurring) (collecting cases); In re Marriage of Quijada & Dominguez, 550 P.3d 153, 161 (Ariz. 2024). At least three state attorneys general have concluded likewise. See Op. Att’y Gen. No. 07-03 (Colo. Aug. 14, 2007), 2007 WL 2670297; Op. Att’y Gen. No. 14-84 (Tenn. Sept. 16, 2014), 2014 WL 4799142; Op. Att’y Gen. No. 2025-007 (Ala. Oct. 21, 2024), 2024 WL 4756549. And, notably, so did the Department of Justice itself in the first Trump administration. See Appellees’ Answering Brief, Park v. Sessions, No. 18-55914, at 12-13 & n.4 (9th Cir.) (2019), 2019 WL 1311809 (DOJ brief arguing that whereas an alien present in the U.S. on a tourist visa is required to maintain a residence in his or her home country with no intention of abandoning it—thereby precluding the intent to remain that’s necessary for domicile under California law—Park’s “decision to overstay her tourist visa and continue to reside in California well past the expiration of her visa” was evidence that she did intend to remain in California indefinitely, which made her a domiciliary of California).[10]
Accordingly, even under Thomas’ and Gorsuch’s interpretation, the Fourteenth Amendment would guarantee birthright citizenship to most or all of the larger category of U.S.-born persons covered by the Trump Citizenship Order and H.R. 9633—and to some children of temporary visa-holders, as well, see Elkins v. Moreno, 435 U.S. 647, 666-668 (1978) (explaining that Congress did not place restrictions on a nonimmigrant’s intent to remain in the U.S. as a condition of receiving a “G–4 visa” — a nonimmigrant visa granted to officers or employees of international treaty organizations and members of their immediate families — and thus that “Congress, while anticipating that permanent immigration would normally occur through immigrant channels, was willing to allow [such] nonrestricted nonimmigrant aliens to adopt the United States as their domicile”).
* * * *
In sum, then, Justice Alito is the only current Justice who would unquestionably uphold the constitutionality of each of the two components of H.R. 9633. Justice Kavanaugh might join him; but, in order to do so, it appears that Kavanaugh would have to disregard his views about the standards for overcoming stare decisis. And, most importantly, if Justices Thomas and Gorsuch were to adhere to the views they expressed in Barbara, they would conclude that the Trump order, and H.R. 9633, are unconstitutional as applied to the vast majority of children born in the U.S. to women who entered or remained in the country unlawfully.
– – – – – – – – – – – –
[1] Some have suggested that the Court majority itself likewise should have ruled on statutory grounds and reserved the constitutional question. For reasons I offered in a piece here last year, I agree that the Trump order violates a statute establishing birthright citizenship, 8 U.S.C. § 1401(a), in addition to the Fourteenth Amendment. See also, especially, the comprehensive treatment of the statutory question in the amicus brief filed on behalf of Professors Collins, Neuman, and Rosenbloom. Barbara was not a case, however, in which it would have been appropriate for the Court to adhere to the general Ashwander rule (derived from Justice Brandeis’ concurrence in that case) that “if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” The Court applies that rule in cases where the answer to the constitutional question is uncertain. Here, however, Wong Kim Ark had resolved the constitutional question—something all three branches had agreed upon for over a century—and therefore the government had treated persons described in the Trump order as citizens for 128 years. A purely statutory holding in Barbara would have suggested to the political branches, inaccurately, that they might be free to amend the statute in a way that would deviate from the binding precedent of Wong Kim Ark, and would have upset that well-established understanding and practice. The Court therefore did the right thing by reaffirming Wong Kim Ark.
[2] See, e.g., Moncada v. Rubio, 153 F.4th 733, 737 (9th Cir. 2025) (noting that the government had treated the plaintiff as a Fourteenth Amendment birthright citizen for decades when it understood his father to have been a foreign-born Nicaraguan consul at the time of the plaintiff’s birth); Letter of Assistant Secretary of State George Messersmith, for the Secretary of State, to the French Chargé (Henry) (Mar. 3, 1938) (explaining that a French consul’s child born in New York was a U.S. citizen because “[i]t has long been the view of the Department that under [the Citizenship Clause] persons born in the United States of fathers who are in the employ of a foreign government other than in a diplomatic capacity”—including “[c]onsular officers”—are “considered to be born subject to the jurisdiction of the United States and consequently acquire at birth the status of citizens of the United States”); Letter from the French Ambassador to the Secretary of State (May 5, 1938) (responding that the “American authorities have a sound basis in considering as being their national any Frenchman born in the United States to one of our consuls exercising his duties there even when the person concerned does not possess any domicile in America” (emphasis added)).
[3] In his dissenting opinion in Barbara, Justice Thomas argues (p.13) that, under pre-1868 law, “[o]nce a person became domiciled in a place, he was considered no longer subject to any foreign power”—a claim that, if correct, might exclude the children of LPRs and many European nationals in the Nineteenth Century from the scope of Justice Alito’s limitation. See also id. at 14 (“When a person moved to a country permanently, … he was no longer subject to the power of the country from which he originated”); id. at 87 (“[T]he Court is wrong about domiciliaries’ remaining ‘subject to’ the foreign power of their country of birth. Although their nation of origin might purport to exercise jurisdiction over them, the United States would not have had to recognize that authority as lawful once those persons were domiciled here.”).
As Chief Justice Roberts noted, however (majority op. at 23-24), Thomas is simply wrong about whether such foreign nationals continue to have a duty to comply with the laws of their home states (such as tax, conscription and treason laws) while they’re domiciled in the U.S. but remain foreign subjects. See Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, at 22 (1834) (“[E]very nation has a right to bind its own subjects by its own laws in every other place.”); id. at 451 (“[N]ations generally assert a claim to regulate the rights, duties, obligations, and acts of their own citizens, wherever they may be domiciled. And, so far as these rights, duties, obligations, and acts afterwards come under the cognizance of the tribunals of the sovereign power of their own country, either for enforcement, or for protection, or for remedy, there may be no just ground to exclude this claim.”); see also, e.g., Commonwealth v. Gaines, 4 Va. 172, 176 (1819) (“the Law of Nations recognizes the right of a State to punish its own citizens for the commission of crimes either of lesae majestatis, or of other dangerous and injurious tendencies, out of its own territorial limits”); State ex rel. Chandler v. Main, 16 Wis. 398, 419 (1863) (“it seems to be well established, that every nation has the right to punish its own citizens for the violation of its laws, wherever committed”).
In support of his contrary view, Thomas cited three things: (i) page 278 of the Court’s decision in The Venus, 12 U.S. 253 (1814); (ii) page 120 of Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804); and (iii) a statement by Senator McDougall in an 1863 floor debate, Cong. Globe, 37th Cong., 3d Sess., at 992. None of those sources, however, supports Thomas’ assertion that a citizen of Nation A no longer has a duty to comply with Nation A’s laws when he is domiciled in Nation B.
[4] The parties in Wong Kim Ark stipulated that Wong Kim Ark’s parents were domiciled in the U.S. when he was born in 1873—which, if true, would imply that they intended the U.S. to be their “permanent home” as of that date. For what it’s worth, there’s reason to believe that the stipulation might not have been accurate. Indeed, by the time Wong Kim Ark initiated the litigation, his parents had already moved back to China (in 1890), as Justice Gray pointed out in the first paragraph of his opinion (169 U.S. at 652).
[5] The throughline connecting the well-established exceptions is that in each case, for various “‘peculiar’” reasons involving the accommodation of inter-sovereign relations (Wong Kim Ark, 169 U.S. at 659 (in turn quoting Justice Story’s separate opinion in Inglis v. Sailors’ Snug Harbor (1830)), the federal government has chosen not to significantly exercise or to significantly enforce its regulatory power as to a particular category of children. For example, the exception for children of “occupying forces” applies when a foreign entity has displaced the federal government in the United States. The “children of diplomats” exception applies because states—including the U.S.—have uniformly granted diplomats and their families a form of immunity from enforcement of the host state’s law—“personal inviolability”—as an accommodation for the visiting state itself, not for its representatives (which is why the state can waive such inviolability). And the uniquely American exception for persons born as members of Indian tribes developed as a result of the federal government’s treatment of tribes as “distinct, independent political communities” (Worcester v. Georgia (1832)) within U.S. territory, which Congress permitted to govern their own populations without the significant intervention of federal law.
[6] Those reasons include, inter alia, the following:
— It would have been very simple for the framers of the Fourteenth Amendment to include a domicile requirement expressly, just as they included a state residency requirement for purposes of constitutionally guaranteed state citizenship later in the same clause. But they didn’t do so. Instead, they adopted a text that refers to the person being “subject to” the United States’ “jurisdiction”—textual terms that have nothing to do with domicile.
— There would have been compelling practical reasons for the framers to have rejected a domicile test had anyone actually proposed it. It would have been very difficult for Nineteenth Century officials and judges to ascertain, often decades after the fact and without the aid of meaningful documentary evidence, whether a person’s parents intended to remain in the U.S. indefinitely on the date of the claimant’s birth. And, as Justice Barrett noted at oral argument in Barbara, in a significant number of cases the government wouldn’t even be able to ascertain who the child’s parents were, let alone what their future plans had been when the child was born.
— The English common law did not include any such domicile requirement for application of the jus soli rule. Therefore, if the antebellum law of the United States incorporated the English rule—as the Court in Wong Kim Ark correctly held that it did—then there wasn’t any domicile requirement under the U.S. law of citizenship before 1868, in which case the Fourteenth Amendment doesn’t establish such a condition, either.
— There’s no evidence that anyone in the federal government (or a state government) during the first 92 years of the nation’s history denied anyone the benefits and duties of U.S. citizenship because they weren’t domiciled in the U.S. at birth. Therefore, to impose such a requirement now would be to read the Citizenship Clause to contract the citizenship rights that were in place before 1868—something everyone agrees the framers did not intend to do.
— And, most important of all, as Mikhail and I explained, the Court in Wong Kim Ark had already rejected the view that being “subject to the jurisdiction” of the United States depends upon whether a person is domiciled in the United States, see, e.g., 169 U.S. at 693 (quoting with approval Secretary of State Daniel Webster’s 1851 well-known report in Thrasher’s Case, in which Webster explained that the requisite allegiance is established “independently of a residence with intention to continue such residence; independently of any domiciliation; [and] independently of the taking of any oath of allegiance or of renouncing any former allegiance” (emphasis added)).
[7] Thomas tries to diminish Lynch by noting (p.79) that it was decided by a New York assistant vice-chancellor “in a court of equity’s equivalent to a trial court.” Lynch is significant, however, not because of its precedential value (or lack thereof), but instead because it was widely agreed that Vice Chancellor Sandford’s extensive examination of uniform U.S. practice was so thorough and persuasive. (For example, as the court in Lynch noted, “when at an election, the inquiry is made whether a person offering to vote is a citizen or an alien, if he answers that he is a native of this country, it is received as conclusive that he is a citizen. No one inquires farther. No one asks whether his parents were citizens or were foreigners. It is enough that he was born here, whatever were the status of his parents.” 1 Sand. Ch. at 663-664.) Of perhaps greatest significance, in an opinion published in 1862, Lincoln’s Attorney General Edward Bates wrote that “I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.” Citizenship of Children Born in the United States of Alien Parents, 10 Op. A.G. 328, 328 (1862). Bates noted that the authority for, and proof of, this proposition was extensive: “I might sustain this opinion by a reference to the well settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; to the familiar practice and usage of the country in the exercise of the ordinary rights and duties of citizenship; to the liberal policy of our Government in extending and recognizing these rights, and enforcing these duties; and, lastly, to the dicta and decisions of many of our national and State judicial tribunals.” Id. at 328-329. Bates concluded, however, that such an elaboration was unnecessary because “all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke,” and thus Bates simply “refer[red] to [Sandford’s] opinion [in Lynch] for a full and clear statement of the principle, and of the reasons and authorities in its support.” Id. at 329; see also James Kent, Commentaries on American Law 38 n.a (1848) (noting that the court in Lynch had properly described the U.S. law’s adoption of the English jus soli rule); In re Look Tin Sing, 21 F. 905, 909-910 (C.C.D. Cal. 1884) (Field, J.) (explaining that Vice Chancellor Sandford’s account of the antebellum U.S. law in Lynch was correct).
[8] The pages of Justice Gray’s opinion that the Barbara Justices would dismiss as “meandering” or “dubious” dicta (Thomas at 45; Alito at 23, 25) were anything but. Instead, Justice Gray in those pages thoroughly and carefully resolved the central point of contention between the parties, and among the Justices themselves.
In his briefs in Wong Kim Ark, Solicitor General Holmes Conrad’s central argument was “that citizenship of the United States can not be maintained or ascertained by any reference to the common law of England” and that, instead, “recourse must be had to the principles of international law” (Reply Br. 5). Similarly, Chief Justice Fuller, dissenting in Wong Kim Ark, agreed with Justice Gray and the majority of the Court that if the U.S. common law (and thus the Citizenship Clause) incorporated the British rule, then Wong Kim Ark was a birthright citizen, seeing as how “[t]he English common law rule recognized no exception in the instance of birth during the mere temporary or accidental sojourn of the parents. As allegiance sprang from the place of birth regardless of parentage and supervened at the moment of birth, the inquiry whether the parents were permanently or only temporarily within the realm was wholly immaterial.” 169 U.S. at 718 (Fuller, dissenting). For that reason, Fuller and Justice Harlan went to great lengths to argue, in accord with Solicitor General Conrad, that the U.S. law before the Fourteenth Amendment did not accept the English jus soli rule, and that the U.S. had, instead, adopted principles of citizenship drawn from the law of nations.
Much to Fuller’s and Harlan’s dismay, however, the other six Justices specifically disagreed, for the detailed reasons offered in Justice Gray’s comprehensive and scholarly opinion. The Court concluded that the U.S. law before 1868 had incorporated the jus soli rule, and that, under that rule, citizenship did not depend upon domiciliation at birth (169 U.S. at 693).
Because those pages of Gray’s opinion directly addressed the legal issue on which the parties disagreed for purposes of assessing Wong Kim Ark’s claim to citizenship, they were not dicta, but rather the ratio decidendi of the case, and therefore are binding precedent, regardless of whether one thinks that Justice Gray or Chief Justice Fuller had the better view of the history of U.S. citizenship law. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.”); Bucklew v. Precythe, 587 U.S. 119, 136 (2019) (“just as binding as [a] holding is the reasoning underlying it”); National Institutes of Health v. American Pub. Health Ass’n, 145 S. Ct. 2658, 2663–64 (2025) (Gorsuch, J., concurring in part and dissenting in part, joined by Kavanaugh, J.); see also Capital Traction Company v. Hof, 174 U.S. 1, 12 (1899) (written by Justice Gray one year after Wong Kim Ark) (describing the binding ratio decidendi of a case as “the line of thought pervading and controlling the whole opinion”).
The Supreme Court itself understood as much in the years following Wong Kim Ark. As Chief Justice Taft wrote in Weedin v. Chin Bow, 274 U.S. 657, 660 (1927), “[t]he very learned and useful opinion of Mr. Justice Gray, speaking for the Court in United States v. Wong Kim Ark, 169 U. S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli,—that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality … .” (emphasis added); see also Perkins v. Elg, 307 U.S. 325, 329 (1939) (referring to Justice Gray’s “comprehensive review of the principles and authorities governing the decision in [Wong Kim Ark]” (emphasis added)).
[9] In footnote 10 of his opinion, Justice Thomas offers several “cf.” citations to cases and other sources with respect to the SG’s argument that “domicile requires permission to remain” and that “an alien who wishes to remain in the United States in violation of federal law cannot be ‘domiciled’ here.” Those cases and sources, however, don’t establish those propositions (or, in some cases, even discuss the standards for domicile). Thomas also quotes from the court of appeals’ opinion in Carlson v. Reed, 249 F. 3d 876, 881 (9th Cir. 2001), in support of his assertion that “some courts [sic] have concluded that an alien who wishes to remain in the United States in violation of federal law cannot be ‘domiciled’ here because he ‘lacks the legal capacity to establish domicile.’” In Carlson, however, the Canadian student in question had had to disclaim any intent to establish permanent residence in the U.S. as a condition of receiving her visa, see id. at 877, which is why the court remarked in passing (the decision didn’t turn on this point) that she “lack[ed] the legal capacity to establish domicile in the United States,” id. at 881. The court in Carlson did not discuss whether persons who had not disclaimed such an intent to remain in the U.S. can be domiciled here, let alone issue a categorical holding, in conflict with the Supreme Court’s understanding in Plyler and the views of many other courts, about the lack of domiciliary status of any and all “alien[s] who wish[] to remain in the United States in violation of federal law” (something that would have been far afield from the question presented in the case, which was whether Carlson “resided” in California for purposes of a state tuition statute).
[10] In the Park case, the court of appeals panel, in a per curiam opinion, rejected DOJ’s argument and concluded that the federal immigration statutes precluded domicile for purposes of determining whether California law governed the validity of Park’s marriage—in other words, the court held not that Park wasn’t a California domiciliary under California law, but that federal law had effectively pre-empted state domicile law. See Park v. Barr, 946 F.3d 1096, 1099-1100 (9th Cir. 2020). The Court of Appeals in Park did not even cite the Supreme Court’s contrary view in Plyler, however; and, even assuming arguendo that Congress has the power to preempt state domicile laws for certain purposes, I’m not aware of any evidence that Congress has intended to do so. The position of the Trump DOJ on this question in Park was correct, as have been the decisions of the state courts and attorneys general cited in the text.
The post Counting the Votes in the Supreme Court’s Birthright Citizenship Decision appeared first on Just Security.
]]>
