The first sentence of the Fourteenth Amendment of that Constitution adopted following the Civil War, in 1868, forms the centerpiece of the case: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Amendment was designed to write the concept of birthright citizenship into law, and to undo the damage inflicted by the Supreme Court’s ruling eleven years earlier in Dred Scott v. Sandford, which denied citizenship to anyone of African descent. The immediate question before the Court is what exceptions were meant by the clause “subject to the jurisdiction thereof.” The answer, at least for most mainstream scholars, is clear: the intended carve-outs, based on English common law, involved children born to foreign diplomats or occupying armies; in the United States, the sovereign status of Indian tribes meant Native American children were excluded as well. (Congress explicitly granted citizenship to Native Americans in 1924.) The Trump Administration contends that “subject to the jurisdiction thereof” covers a far broader category: anyone not authorized to remain in the country permanently. This contention met with considerable resistance among the Justices. “I’m not sure how you can get to that big group from such tiny and sort of idiosyncratic examples,” Roberts told Sauer.
Roberts’s point is well taken, and the debates surrounding the ratification of the Fourteenth Amendment do not support the Administration’s expansive interpretation. For example, during the debate over the amendment, Senator Edgar Cowan, of Pennsylvania, asked, “[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? I should think not.” Senator John Conness, of California, said that Cowan’s interpretation was correct: “The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.” In the arguments on Wednesday, Justice Sonia Sotomayor asked, “What do we do with those debates and the fact that the proponents of both acts”—the Fourteenth Amendment and a predecessor statute, the Civil Rights Act of 1866—“said everyone who’s born in the U.S. will be citizens?”
The central precedent interpreting the Citizenship Clause is the 1898 decision in United States v. Wong Kim Ark, involving a man born in California to Chinese parents who were not citizens—they could not be, under the terms of the Chinese Exclusion Act. After Wong visited China, he was denied reëntry to the United States on the ground that he was not a citizen. The Justices disagreed. “The Amendment, in clear words and in manifest intent, includes that children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” the Court said. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” The Trump Administration seizes on the decision’s references to domicile, arguing that, except for those with green cards, foreigners with authorization to live in the U.S. cannot be “domiciled” in the United States because they expect to be here only temporarily; meanwhile, in the Administration’s telling, those here without any authorization “lack the legal capacity to establish domicile here.” This has things more than a little backward—as Justice Elena Kagan noted that undocumented migrants frequently intend to remain for as long as possible. This focus on domicile omits the fact that the question never came up in the debates over the Fourteenth Amendment; it also ignores subsequent Supreme Court rulings in which the Court reaffirmed that children of those here illegally were nonetheless citizens. In one 1957 case, the Court said that a U.S.-born child of parents who overstayed their permitted time in the country was “of course, an American citizen by birth.” In a 1985 case involving a Mexican couple smuggled into the country illegally, the Court described their two “citizen children” without any indication that status was open to debate.
But some conservative Justices—and, notably, Kagan—acknowledged that the Wong Kim Ark decision did use the term “domicile” repeatedly. “It appears in the opinion twenty different times, and including in the question presented and in the actual legal holding,” Roberts told Wang, the legal director. “Isn’t it at least something to be concerned about?” Kagan asked, “What are those twenty domicile words doing there?” Still, the Justices wrestled with Sauer’s interpretation of the case. “I’m not sure how much you want to rely on Wong Kim Ark,” Justice Neil Gorsuch told him.
