[25-365] Trump v. Barbara

General Sauer, Mr. Chief Justice, and may it please the court.

“The citizenship clause was adopted just after the Civil War to grant citizenship to the”

newly freed slaves and their children whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance. This conclusion reflects the original public meaning of the clause.

When Congress used the term "not subject any foreign power" in the Civil Rights Act of 1866, it rejected the British conception of allegiance. Senator Trump will explain that subject to the jurisdiction thereof and the clause means not only allegiance to anybody else, and in 1884 this court recognized that subject of the jurisdiction means owing direct and immediate allegiance.

The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens.

“Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the”

United States. For aliens, lawful domicile is the status that creates the requisite allegiance and the text of the clause presupposes domicile. For decades following the clause's adoption, commentators recognize that the children of temporary visitors are not citizens.

The illegal aliens lack the legal capacity to establish domicile here. Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship.

It operates as a powerful pull factor for illegal immigration and rewards illegal aliens

who not only violate the immigration laws but also jump in front of those who follow the rules. It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating whole generation of American citizens abroad with no meaningful ties to the United States.

I welcome the court's questions. General Sauer, before we get into the broader national issues, would you start with high-dread Scott, Dread Scott was a case about state citizenship. It was a diversity case. Of course, we know it.

Chief Justice Chantani did with that. How does the citizenship clause respond specifically to Dread Scott and answers or changes or corrects its answer as to citizenship? The other point is the citizenship clause refers not just to national citizenship, but also to state citizenship.

“Are we to have two different definitions for those?”

It's one word, citizens of the United States and citizens of the state where they reside. So, as you begin, I'd like you to go back at the beginning of being more specific about the answer, and I want you to explain whether or not those two definitions are the same or related and what state citizenship is based on. Thank you, Justice Thomas, I'll maybe start by addressing Dread Scott as you alluded to

the fact that Dread Scott imposed one of the worst injustices in the history of this court and it led to the outbreak of the Civil War. It's very clear. In this court, in all its early cases interpreting the 40th Amendment, said, the one pervading purpose, the main object of the citizenship clause is to overrule Dread Scott and establish

the citizenship of the freed slaves. If you look at the debates in the congressional record and discussion surrounding the adoption of the citizenship clause, what you see is, if you're a clear understanding that the newly freed slaves and their children have a relationship of domicile, they do not have a relationship to any foreign power, for example, there's a comment where he says, "Look, people have been

here for five generations and clearly have no relationships to any foreign African potentate. You know, have a relationship of allegiance to the United States and that reinforces our point that allegiance is what the word jurisdiction means. It doesn't mean regulatory jurisdiction or a sort of being subbed, merely subbed to the laws.

And they're thinking about it in those debates about allegiance." Now, as hear a second question, if you look at the text of the clause, we believe there, it says, you know, born in the United States, the United States, and studied the jurisdiction thereof, our citizens of the United States, and the states of which they reside. So, there's a constitutional guarantee that applies to both federal or national and state

citizenship.

And the key point we make there is that that word reside, if you look at, for example, Section

So when they say subject to the jurisdiction and then they go on to say, you're a citizen

“of the United States, and the state in which they reside, the very text of the clause itself”

presupposes that the citizen is domicile in the United States, if they're president of the state at all. They reside there. Reside means domicile in the Constitution. And we think that strongly supports our interpretation.

It's textual evidence of our domicile-based theory of jurisdiction. Well, starting with that theory, you obviously put a lot of weight on subject to the jurisdiction thereof. But the examples you give to support that strike me as very quirky, you know, children of ambassadors,

children of enemies during a hostile invasion, children on warships, and then you expand

it to a whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.

“There are those sort of narrow exceptions for ambassador for in public ships.”

Tribal inies is enormous one that they are very focused on in the debates as well. But what I do is I invite the court to look at the intervening step, which is the enactment of the Civil Rights Act of 1866, and there they didn't say subject to the jurisdiction thereof. There it says not subject to any foreign power.

Now if you go back to blackstone in Calvin's case, they say it does not matter. If you are subject to any foreign power, if you are born in the King's domains, you have this indefisible duty of allegiance to the King at any time. So there's a clear repudiation in the Civil Rights Act. The Civil Rights Act is this breakwater, which makes it very, very clear that they are

not thinking about allegiance in the terms of like the British common law. They've adopted the Republican conception of allegiance. So it's from not subject to any foreign power, and then the debate's just a couple months later, make it very clear that they're recodifying the same conception. They were dissatisfied with the potential ambiguity in the phrase "Indians not tax," and

they adopted subject to jurisdiction thereof. And one of the strongest statements of this is Senator Trumbel's statement that he quoted at the beginning, where he says, "There he's asked what does that mean, some of the jurisdiction thereof," and he says, "It means not going allegiance to anybody else, that is what it means."

And this court picked up on that and held against Wilkins when it says, "It uses completely subject to the political jurisdiction, not Mary Regulatory jurisdiction." What do you do with one Kim Arx quote of Daniel Webster, who said independently of a residence with intention to continue such residence independently of any domiciliation, independently of the taking of any oath of allegiance, or if renouncing any former allegiance.

It is well known that by the public law, a non-citizen, while he is here in the United States, owes obedience to this country's laws. Now, the examples that long are Kim used as exceptions, are situations in which there was not temporary allegiance to the United States. The children of foreign diplomats, whose only allegiance was to their foreign country, and

or occupied territory residents, including those citizens in Maine who had been occupied by the British forces, the US had no control over them, and the whole theory of the Indian tribes was similar. The Indian tribes were analogized to foreign diplomats, so what do we do with that?

I'd say two things, first I'd say the Indian tribes.

We think that's a case that strongly supports us because, of course, by 1866 and 1868, there was strong understanding that the Indian tribes were subject to the United States's regulatory jurisdiction. But not the same way that temporary foreigners were, meaning there was a real debate going on, whether the US actually had jurisdiction over Indian tribes.

“That's why our cases, for the longest time, until that was finally settled, said, "Absence”

on Mac of Congress, there is our laws, don't apply, the US laws, don't apply to Indians on Indian lands, correct?" I believe you look at the Rogers decision, for example, that we signed our brief, where they say that they are subject to the United States. That's later, I'm talking at the time.

Yes, at the time. So what do you do during the debates of the 1866 civil rights act and of the 14th amendment? With the entire discussion of the people who oppose the amendment, who kept saying, "We can't pass it because we're making citizens of gypsies who have no allegiance to anybody and we're not going to make citizens of Chinese people who can't be citizens because

we're not going to permit them to be citizens." What do we do with those debates and the fact that the proponents of both acts said, "Everyone

First, as that particular exchange page, 2890, the congressional record from 1866, Senator Cowan gives this hurilantly racist statement where he says that. And what does he say right at the beginning of that sort of offensive speech? He says we can't have children of gypsies, children of Chinese immigrants, we can't have them become citizens.

And he says, "Have they any more rights than a sojourner in the United States?" So he's trying to persuade the Republicans to his view by appealing to a common understanding that sojourners do not have children who become citizens.

He says, "Pomp, powerful evidence there that everybody understood this to not sweep in the

temporary sojourner."

“And that's why you see for 40, 50 years, you see every commentator who dresses a specific”

question of temporary presence saying, "It's not covered by the clause including for decades after won't you mark?" General, can I take you back to the Chief Justice's question about the specific exceptions to birthrights of this in shape that everybody seems to agree or recognized under the common law.

And it brings up an important principle about how we interpret the law. When particular problems pop up lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule? Or do we say they adopted a general rule?

They meant for that to apply to later applications that might come up, just as clearly he had an example that dealt with this situation, he imagined an old theft statute. That was enacted well before anybody conceived of a microwave oven and then afterwards someone is charged with the crime of stealing a microwave oven and this fellow says, "Well, I can't be convicted under this because the microwave oven didn't exist at that time."

He dismissed that, there's a general rule there, and you'll apply it to future applications.

And what we're dealing with here is something that was basically unknown at the time

when the 14th Amendment was adopted, which is illegal immigration.

“So how did we deal with that situation when we have a general rule?”

Yeah, I strongly agree with the way that you framed it, that there is a general principle that's a broad principle that's adopted and phrased under the jurisdiction thereof, and we submit that our theory of allegiance and domicile based allegiance, what explains those specific exceptions that everybody was aware of, but it is broad enough to sweep in future situations and, as you pointed out, illegal immigration did not exist then.

Now the problem of temporary visitors did exist, and it's very interesting that as you look at the pages 26 and 28 of our brief commentators going from 1881 until 1922 are uniformly saying that children of temporary visitors are not included.

Now that logic, we say naturally extends it to early and off or she or I case, if you

are someone who enters illegally by the 1880s, there are restrictions on immigration. If you enter illegally, it's kind of a well-established principle of law going back to the code of Justinian that says you're not allowed to be there. You cannot, you have a legal capacity to create domicile there. But I think, General Sauer, that what you just said suggests that you can't be arguing in

the way Justice Alito suggests, because most of your brief is not about illegal aliens, most of your brief is about people who are just temporarily in the country, where there was quite clearly an experience of an understanding of that they were going to be temporary inhabitants, and your whole theory of the case is built on that group. You don't get to talking about undocumented persons until quite later and at much lesser, you

know, I think it's like 10 pages to three pages or something like that. So you can't really be going with Justice Alito's theory.

“You must be saying that there is a principle that was there in at the time of the 14th”

amendment, isn't that right? We agree there's a principle there at the 14th amendment. It is the jurisdiction means allegiance, the allegiance of a, and it's very strongly reflected in the 19th century sources, the allegiance of an alien president, other country, is determined by domicile.

And that goes back to the Vs and the Pizarro, it goes through the Katsu affair in 1853. It comes right up to Fong, Yui Ting and Lao Albu, but Bu, that are decided shortly before Wong Kim Arque. So that's the principle that principle clearly applies here. I also respectfully disagree.

Yeah, and I guess Mr. General Sauer, you know, where does this principle come from? allegiance, domicile, allegiance, I think you point to a Lincoln funeral speech, as you are primary example of where this principle comes from. It's certainly not what we think of when we think of the word jurisdiction, and I appreciate

subject to jurisdiction, you're subject to the authority of.

And doesn't say, "Oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does."

“So the text of the clause, I think, is not support.”

You, I think, you're sort of looking for some more technical, esoteric meaning. And then the question comes, "Okay, if the text doesn't support you, if there's a real history of people using it that way," but as far as I can tell, you know, at the time of the 14th, you're using some pretty obscure sources to get to this concept. Well, I take it straight from the Framer's mouth.

So for example, Senator Trumble said, "Was asked, what his jurisdiction means?" He means, "Sub to the jurisdiction." He said, "What does that mean?" He says, "It means not only allegiance to anybody else.

He is the principal of the Framer of the Civil Rights Act of 1866 representative Bigum,

who's the Framer of the 14th Amendment, is asked, "What is it mean in the congressional of the record of page 1291?" He says, "Within the jurisdiction of the United States of parents, not only allegiance to any foreign sovereignty, and we've recited many, many examples where the congressional debates reflect that.

Then you refer to the oration of George Bancroff. That's one of probably 16 sources, whether there's at least 13. Counting that one in the 12th treatises, we cited pages 26 to 28 of our brief. There is over a dozen sources that specifically address temporary soldiers in the five decades after the enactment of the amendment, every single one of them says, "Well temporary

soldiers, their children are not included, including for two decades after the war on Kim Ark." So, if Domiciles, the key, the linchpin to your argument, I take it that it is, do we look at how Domiciles understood in 1868?

“Would we look at it and how it's understood today in context of the INA?”

Uh, the 1868, understanding, not aware of a strong difference between those. Yeah, here's where I'm going with it. I'm just working within your argument for a moment. Today you can point to laws against immigration that are much more restrictive than they were in 1868.

We didn't really didn't have laws like that until maybe 1880. So if somebody showed up here in 1868 and established Domicile, that was perfectly fine without respect to anything, any immigration laws, there they were. And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial?

I would first cite one, Kim Ark, on that point, because one, Kim Ark says here, "Well,

I'm not sure how much you want to rely on one, Kim Ark." But that state, there is a statement in there that says, "So long as they are permitted to be here." So, one, Kim Ark, keep in mind that by the time they decide, "Night, not in one, Kim Ark can be."

But that's 1898. Now I'm looking at 1868, you're telling me is what I should look in the test for Domicile. And the stuff you have about unlawfully present is like Roman law sources you're going to. First and second, restatements is well, but just as a discord, that's not so wouldn't

be the INA that would control whether you're capable of having Domicile. It would be whatever the law was in 1868.

“Well, I think that this is addressed by Mike St. Joseph's leader from earlier, which”

is that this concept, jurisdiction, big intelligence, and so on and so on and so on. It's quite continually restrict who may lawfully be present, more and more, and you'd say that would be incorporated into it, even though you're telling us to apply the original meaning of 1868. The original meaning of Domicile.

And so the question is, is there any argument that the framers intended to preclude Congress from dictating who can, who cannot establish a lawful Domicile here? I don't see any evidence of that in the congressional record, so it's a natural extension. Who's Domicile matters? I mean, it's not the child, obviously, it's the parents who'd have us focus on.

And you know, what if is it the husband, is it the wife, what if they're unmarried? Who's Domicile? Well, in the executive order, it draws a distinction between the mother and the father, answerally, the mother's Domicile, I think that would matter here. That's 68 matters, you're telling us, so what's the answer?

The 1868, a source is, talk about prints on, not aware of them dragging a signature to read Mother or Father, but they say that Domicile, the child, follows the Domicile of the parents. And how are we going to determine Domicile? I mean, it would we use contemporary sources on what qualifies as Domicile on a stator? Do we look in 1868, and we have to do this for every single person?

And again, I don't see a strong distinction between those, because, of course, Domicile is a high-level concept has been pretty consistent over centuries, which is lawful presence, with the intent to remain permanently that Domicile, when you come to a new nation, you say, "I'm here for it to stay, you become part of their political community, and you become akin to a citizen." And that's reflected very strongly in the case I cited before.

And just a circle back to Justice Kagan's point.

We have the child's citizenship and the focus of the causes on the child, not on the parents.

And you don't see Domicile mentioned in the debates. The absence is striking.

“I think the 19th century sources would say a child, a newborn child, lacks the capacity to form”

a Domicile, so they're imputed to Domicile of their parents. So I don't think they would have seen a distinction between children and parents. I point out that their position, like ours, is forced to look at the Domicile of the parents, because we look at the exceptions that they accept. I'm talking about it.

Tribal Indians. I'm talking about in the debates over the 14th Amendment, and the Civil Rights Act, it's striking that these concepts aren't discussed in them. I think Domicile is discussed. I mean, it's brought up in many--

A leetons jurisdiction, complete jurisdiction. Well, I mean, here's just a few examples.

Page 1679, the Congressional Record, President Johnson vetoes the first version of the Civil

Rights Act, and he says, "I can't sign this because it would extend alien-- or since it is the children of court, all Domiciled aliens and foreigners, even if not naturalized, and you have all the other sources of east side of that site. And this is deeply rooted in 19th century understanding. It's reflected in the Venus, it's reflected in the Pazaro in 1814 and 1817.

It carries through the 19th century, and this court is talking about it in 1892 and 1893. When it's discussed in the Chinese Exclusion Act, Domicile is the key concept that creates allegiance. General-- General, we can say in your reply brief that the children of slaves who were brought here

unlawfully in defiance of laws for beating the slave trade would, in fact, be citizens. And you can imagine that their parents were not only brought here in violation of the United States law, but were here against their will, and so maybe felt allegiance to the countries where they were from. And you say that the purpose of the 14th Amendment was to put all slaves on equal footing,

newly freed slaves on equal footing, and so they would be citizens. But that's not textual. So how do you get there?

“You say it in just a few sentences, so can you elaborate?”

Sure, if you look at the 19th century sources, what you see is that even though their entry

may have been unlawful, 19th century anti-bellum law never created their presences unlawful.

In fact, quite the opposite. One of the immediate, in fact, points like a Mississippi statute, which probably is replicated throughout the south, before the Civil War that says slaves in Mississippi have an indefesible domicile in Mississippi. In other words, even if they run away, if they get away, Mississippi says nope, you still live

here. Right? And so it would be astonishing, in other words, for the opponents of the 14th Amendment to say, oh, these people were not domiciled, and therefore it goes the other way, because actually, US live either, even if they were brought in illegally, and through an illegal

slave trade, once they were there by the law. Well, their intent is to return as soon as they can, let's say. So they're here. They're resident, and maybe under your theory, which says we'll laugh on this for a different purpose.

Here, their resident lets take your assumption that they're not here unlawfully. Let's say they don't have an intent to stay. They want to escape and go back. The second they can. Are they domiciled?

Under the 19th century law, I may think this is the flip side of the hypothetical that we talked about earlier. Under the 19th century law, they are treated as domiciled in the United States, so it would be astonishing. And the debates in the congressional floor talk about this specific case, but they say, look,

slaves who have been forced to come here, and have been here, are lawfully domiciled here. I mean, they don't use the way, is domiciled, like they have the use of legions, they say, they don't have a legions to, once they've been forced to come here, they don't have a legions to any foreigner, African, potentate, and therefore they're-- General Legions.

How would that apply to the children of illegally trafficked people today, but the same reasoning apply? It would turn on whether the parents are lawfully domiciled in the United States. So if they're brought in illegally, but then they choose to remain, and they want to remain in their domiciled, you would say that their lawful presence is not dictated by whether

they were brought here lawfully or not. And that's different from someone who say crosses the border, and lawfully.

“I think it would turn on whether their presence is lawful, in other words, obviously there”

may be many other important things that could be done to assist people like that. The question is if they get birth to someone in the United States, that person naturally is citizen, that would turn based on the original public media that clause on the lawfulness of their presence. Are they domiciled?

General, can I ask you a question? To follow up on what Justice Gorsuch was exploring with you with respect to domiciled, did I understand you to say that domicile is going to be eventually or is controlled by Congress who is domiciled. I'm struggling to figure out who is domiciled in your argument.

The domicile areas are people who are lawfully present and have an intent to remain permanently. So that's a kind of black letter, you know, understanding of domicile. Now, Congress can dictate that certain class of people, legal entrances, so forth, cannot

But is that so then doesn't it make the domicile for the purpose of the 14th Amendment

turn then ultimately on Congress's will in a way that the framers did not intend?

I mean, my understanding was the framers put this citizenship clause into the constitution to prevent future Congresses from being able to affect citizenship in this way. Sure. Very briefly, no, I don't think so, because it is up to the alien whether or not they want to be domiciled here.

Now, there may be -- But I think that Congress can make determinations as to who counts as being domiciled here. So, that's true, then it ultimately would impact in your theory whether or not this person can claim that they have citizenship for 14th Amendment purposes based on Congress's determination.

“And I just thought that's what the 14th Amendment was trying to get away from.”

Yes. Very briefly. I just point you to the discussion and Professor Warman's Amiga's brief where he talks about this is not a new problem, going back even to the British common law, there's a situation of people who lack a safe conduct in our passing through the King's domains

without permission. And he says the best reading of the common laws they are not in the protection of the King, and they are not covered by the rule of birth rights citizenship. Thank you, Council. You mentioned in your briefing and also this morning the problem of birth tourism.

Do you have any information about how common that is or how significant a problem it is? It's a great question. No one knows for sure there's a March 9th letter from a number of members of Congress to DHS saying, "To we have any information about this," the media reports indicate estimates

could be over 1.5 million from the people's Republic of China alone, the congressional

report that we cited in our brief talks about certain hot spots like Russian elites coming to Miami through these birth tours and companies.

“Here's the facts about it that I think is striking.”

Media reported is early as 2015 that based on Chinese media reports, there are 500, 500 birth tours and companies in the people's Republic of China whose business is to bring people here to give birth and return to that nation. Having said all that, you do agree that that has no impact on the legal analysis before us?

Think it's, I quote what Justice Clea said in his Hongdaan descent, where they are interpretation has these implications that could not possibly have been approved by the 19th century framers of this amendment. I think that shows that they made a mess, their interpretation has made a mess in the provision.

Well, it certainly was in a problem in the 19th century.

No, but of course, we're in a new world now, just to lead a point out to where 8 billion

people are one plane ride away from having a child as a US citizen. Well, it's a new world. This is the same constitution.

“It is, and has Justice Clea said, I think in the case that Justice Leader was referring”

to, you've got a constitutional provision that addresses certain evils and it should be extended to reasonably comparable evils. He said that about statutory interpretation. I think the same principle applies here, and I think we'll go with that in our brief. Thank you, Justice Thomas.

Any further? General, are you getting a lot of questions about immigration and they harking back of course to citizenship, which is defined in, or set out in the 14th amendment, how much of the debates around the 14th amendment had anything to do with immigration? I think that the principle focus of those debates has to do really not with immigrants,

but with the Indian tribes. I mean, obviously, the main goal that one pervading purpose of this court said in this slaughterhouse case was to establish the citizenship of the freed slaves and their children, but they were very concerned about the problem of something that they all accepted as a given, which is at the children of tribal Indians, are not within the rule of birthright

citizenship. So I think that's what they focus. And we draw to analogy to that, too, the issue of temporary sewjourners, and then but there are mentions of temporary sewjourning multiple places in the congressional debates and all of those quotes go in our direction.

And there was just a sort of my product, long-king arc. There was no question in that case that about domicile was there. I disagree. The court says at the very beginning of its opinion, here are the accepted facts. These are lawfully domiciled here.

When it states the question presented, it talks about domicile. When it recites the legal principle of page 693, it says domicile three times and it page 705, at the end of the opinion says here's the single question we've decided. We've decided that Chinese immigrants with a permanent domicile and residents here are

Justice Alito?

“Under the minimum definition of domicile, which I think existed in 1868 and continues”

to exist today, a person's domicile is the place where he or she intends to make a permanent

home. Now, normally you would think that a person who is subject to arrest at any time and removal could not establish domicile, but we have an unusual situation here because our immigration laws have been ineffectively and in some instances unenthusiastically enforced by federal officials. So there are people who are subject to removal at any time if they are apprehended and they

go through the proper procedures, but they have in their minds made a permanent home here and have established roots. And that raises a humanitarian problem and I wonder if you could address that. If I make one legal and one humanitarian, legal point is if you look at those cases, for example,

“a car suddenly gets read, park against bar, this court's decision in Helkins and”

Tologets, Marino, they talk about the legal capacity to create a domicile, excluding someone who may have the subjective intent, which otherwise would be determinative as being excluded on the humanitarian point, I would point out, as I said at the beginning, Justice Alito, that the United States rule of nearly unrestricted birthright citizenship is an outlier among modern nations.

It's a very small minority of nations that have that rule. For example, every nation in Europe has a different rule and the notion that they have a huge humanitarian crisis, as a result of not having unrestricted birthright citizenship, I don't think is a strong argument and I point out obviously for, you know, for reliance related reasons.

“This executive order applies only prospectively and we ask the court to rule only prospectively.”

- Justice Sotomayor, I agree with you with the European nation, it's rule is, but England

was always different, wasn't it?

Not until 1983 it changed, that's not quite true, the long arc Kim arc does a wonderful job of laying out the English rule, and you claim it was different, but there isn't any treatises or scholars who say it's different, English rule was always by birth, other people were not by, other countries were not by birth. Let me just go to the implications of what you're asking us to do.

You are asking us to overrule Wang Kim arc, well, they're Wang Kim arc's parents were domiciled in the U.S., but they owe loyalty to China, they eventually returned to China, so they didn't have a primary allegiance to you in the United States. So you're not asking that, are you asking us to overrule then our cases, one of which said that a child of illegal aliens could be was a citizen, you're asking us to overrule

that.

- First of all, we're not asking you overrule Wang Kim arc, but we were holding

a wrong Kim arc in much of the reasoning, and then as to those later cases started in 1966 for the court, it makes sort of un-reasoned references to this thing. In top, you lose the respondent on lawfully overstayed her visa and gave birth to a child here. The court hauling the second rope, the child is of course an American citizen.

That person wasn't domiciled here lawfully, so you're asking us to overrule that. - I wouldn't say we're asking it overrule, we think that's similar to a dry by jurisdiction or rolling where there's a simple statement that's not debated, there's no further analysis of it. And we think that's similar to case of a court just assumed jurisdiction without discussion.

- We ruled in trend that Indians could not become citizens. The government then after began to un-naturalize many Indians who had been sworn in as citizens. You asked us to concentrate only on the prospective nature of the citizen's order. The logic of your position if accepted is that the next president, or the next president, or a congress or someone else, could decide that it shouldn't be perspective.

There would be nothing limiting that according to your theory.

- No, I'm saying to you, don't, yeah, that's what you're asking us for relief right now.

Asking whether the logic of your theory would permit what happened after the court's decision in trend, that the government could move to unnaturalize people who were born here of illegal residents. - No, we believe the court should do what it did in sessions against Morales and Tana were it. There was a ruling that would have deprived people who are already citizens. - But that's not what we did in trend.

“- We think the sessions provides the proper course here and that's what we're asking.”

We are not asking for any retroactive relief. - Justice Pagan?

- General, I think even your brief conceded that the position you're taking now is a revisionist one

with respect to a substantial part of our history. And I think that that's in large part because of one Kim Ark and the way people have read that case, which of course was in the late 19th century and have read it ever since then. And what that case suggests is, I mean, there's a very clear rationale. You say, oh, it says the word domicile a bunch of times, which it does.

It's a long opinion, it says a lot of things. But the rationale of the case is really quite clear. It says there was this common law tradition. It came from England. We know what it was.

Everybody got citizenship by birth except for a few discrete categories, which were the ones that the Chief Justice mentioned at the beginning. And that tradition carried over to the United States. And then what the 14th Amendment did was accept that tradition and not attempt to place any limitations on it. And so that was the clear rationale, a clear rationale that is diametrically different from your rationale.

And everybody took one Kim Ark to say that and to say that as a result of that, of course, birth rate citizenship was the rule.

“And I think everybody has believed that for a long, long time.”

And I guess my question is this. You have a story about what about the reasons why we should go back to what you view as the original meaning. And given the long history of this country's understanding about birth rate citizenship, what would it take? What do you think it should take to accept that story in terms of the magnitude of the evidence that we would need to see

in order to accept this revisionist theory in an order to change what I think people have thought the rule was for more than a century. Let me make two points of response to that one historical and one legal historical point. I disagree with the way you've characterized the understanding of one Kim Ark and I point to something that's emphasized in there, and Nicky's briefs, which is in 1921, Richard Flornoi, who becomes a senior state department official in the Roosevelt administration, pushes their theory as the temporary soldiers.

“Write some article in 1921, where he says, I think the children of temporary visitors should be citizens.”

But he admits that is not the understanding of one Kim Ark. He admits one Kim Ark did not hold that. And he admits that there's an array of authorities that go against him. He talks about careful and reliable, high authorities. And that's referring to the consensus that we point out in pages 2620 of a brief.

We've got 12 predecessors from 1881 to 1922 that all say including for decades after one Kim Ark that say children of temporary soldiers are not included. What happens to be 1921 in the 1930s? Well, Mr. Flornoi became a senior state department official and he adopted that as the policy of the Roosevelt administration.

So, their argument is basically saying there wasn't this consensus going back to 1898.

The consensus as their own author admits goes entirely in the opposite direction. For 50 years, right, for 50 years, from the framing of the clause through the 1920s, maybe 60 years, the general understanding would come to what's an issue here and was not an issue in long Kim Ark is the children of temporary visitors do not become citizens under the clause. And then the legal point, you refer to the sort of concept of temporary local allegiance and they rely on the sooner it's changed this theory that you've got temporary local allegiance.

But if you actually look at page 572 of the congressional record, right at the beginning, introducing a civil rights act. Senator Trumble says, "I said not subject to any foreign power. I wanted to say, "Burn in the United States." And, you know, owing allegiance to the United States, but I was aware that there's a quote, a sort of allegiance from persons temporary resident in the United States. "Who do we have no right to make citizens?"

Thank you, General.

“Does this, of course, it's just a follow up on that point, General.”

One interesting counterpoint about the understanding one Kim Ark that followed with respect to temporary soldiers. And I take, you've got your well taken points. But there was, of course, John Marshall, Harlan, the great dissenter who descended in one Kim Ark. And later, give a bunch of lectures. And he posed the question about the soldiers, what's opposed, an English father and mother went down to the hot springs to get rid of the gout.

And while they have a child, now back in England, is that child who says, "If the United States born of the jurisdiction thereof by mere accident of birth." And he says, "Under one Kim Ark, he is." And he continues, "I was one of the minority." And, of course, I was wrong. Well, I'm sure that was tongue-in-cheek.

But, well, what do you do with that? I draw the, I mean, I say two things, I respond to that.

First of all, he gave a speech.

But we have 12 uncontradited treatises that say the opposite, that that is not what Wong Kim Ark means. And that's not the meaning of the commands. But also, I make a more fundamental point, and we are looking at Wong Kim Ark. One of the dissent has this dominant theme. It's a dominant theme that, really, time thing like you can't be doing this because you can't make the, and we all agree, or it's obvious that the children of temporary resident, temporary visitors, do not become citizens.

And how does the majority of opinion address that? It says domicile. Three times, when it recites the legal rule, it says permanent residents in domicile and decides the holding. So the court should be bound by what it says. This is what we're deciding.

Again, a page 75, it says, "This is the single question that has been a lot of discussion up to that point." The very end, this at the single question we've decided, is the citizenship says the children of Chinese immigrants with a permanent residents in domicile in the United States.

“Do you think Native Americans today are birthright citizens under your test and under your friend's test?”

I think so.

I mean, obviously they've been granted a citizenship.

I'm a statute. I'm a statute. I'm a statute. Do you think they're birthright citizens? No, I think the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthrights.

I understand that's what they've said. But your test is the domicile of the parents. And that would be the test you'd have to supply today, right? Yes, yes. A tribal Indian, for example, our tribal...

You have some religions too. Born today, birthright citizens. I think so on our test.

If they're roughly domiciled here.

Okay. I have to think that through. That's my reaction. I'll take the yes, that's all right. And then I just want to ask you quickly about the INA adopted in 1940 in 1952.

It uses the same term as the citizenship clause. And one might have a pretty good argument. I'm sure you've got some arguments along just these lines that it should be understood to mean whatever it meant in 1868. But there was a lot of water over the dam between those two things. And as your brief points out by the Roosevelt administration,

there's a pretty strong juice solely move. That is to say that the thin concept of jurisdiction power over is enough. A broader understanding of birthright.

“Would there be an argument for reading that statute under its original plane meaning at the time?”

1940, 1952. Perhaps have a different meaning than the Constitution. We don't think that's the best interpretation. Give two reasons. One is it would be very surprising if a statute that says exactly the constitutional phrase under the jurisdiction.

There are more interpreted means something totally different or to classify a then current misunderstanding of the clause. We think that the best analogy here is probably state-long arm statutes. Take a sort of non-controversial example. State-long arm statutes routinely say we're going to exercise personal jurisdiction to the extent of due process. It takes the constitutional standard and it puts it in the statute.

And nobody thinks that those ossify our limited to the preceded this court's presence at the time they are enacted. Everyone thinks that that phrase due process incorporates the developing law of due process and minimum context and so forth, including from this court. So we think that's the best analogy when you're looking at the constitutional phrase itself. And you take it out of a freighted context. The natural interpretation, to say this means this reflects the objective meaning of the Constitution.

And the objective meaning of the Constitution is as a ritual public meaning in 1866. Do you say notable counterpoints to that argument? I'm sure there are arguments on the other side. We address them in their brief time. So you really at the end of the day then this is a straight-up constitutional rule and you want from this court when lose it wrong.

If the court disagrees, I was who we prefer in adverse ruling of the court's going to do that on a statutory basis on the Constitution.

But if you're just disavowed that in your responses to me by saying that it's not available option is where I decide. Yes, the court have to disagree with our statutory position, which is that it means the same thing as the Constitution. But if the court wanted to do that, then the natural course will probably be to roll in statutory grounds alone.

“Now, we think they mean the same thing and we've got arguments for that, including I think the analogy I just referenced.”

Thank you. This is Kavanaugh.

General, how should we think about the text of the 14th Amendment subject to the jurisdiction they're of?

As distinct from the different language of the Civil Rights Act of 1866, which refers, as you know, to persons not subject to any foreign power. Those texts are on their face different in the history that Justice Kagan referred to might have developed quite a bit differently if the 14th Amendment's text had used the phrase that was in the Civil Rights Act. That's an excellent point, and this court has held, in multiple cases, heard against hij and general building contractors, has recognized that they were intended and they did mean the same thing.

And that's powerfully reinforced by the congressional debates, where you, really what they're discussing is they said they were dissatisfied with the language and the Civil Rights Act. Because the phrase Indians not taxed, they thought it was ambiguous. And so they switched to the affirmative statement, as opposed to the negative statement.

The affirmative statement, subject to the jurisdiction there are, but there's express statements that the congressional record has mentioned that.

We're doing the same thing, and that is what this court's case law has reflected. Why didn't they say the same thing? Again, it appears they prefer the sort of positive formulation subject to the jurisdiction there are, as opposed to not subject to any foreign power. And again, there's a deep concern, a lengthy discussion of the potential ambiguity in the Civil Rights Act.

“They want to eliminate an ambiguity, but do the same thing, and I think that that's very strongly reflected in those debates.”

By the time of the 1940 and 1952 congressional actions, where Congress repeats subject to the jurisdiction thereof, given one can mark one might have expected Congress to use a different phrase if it wanted to try to disagree with one can mark on what the scope of birthright citizenship or the scope of citizenship should be. And yet Congress repeats that same language, knowing what the interpretation had been. So how are we to think about that? I think big into that question is an understanding, I think that was reflected in Justice Kagan's earlier question,

that everybody understood that Wong came argument that in the history I talked about. I think, refutes that, really, there's a consensus that goes our way for decades and decades. After the adoption of the amendment, after Wong came mark on the specific question of the children of temporary visitors. And it's really not until, again, they're authoring 1921, saying, hey, the other side is the consensus. I'm sorry, sorry go ahead.

But there's executive branch interpretations and others. And if you're in Congress in 1940 and 1952, and you want to limit the scope of one can mark or to eliminate ambiguity, why do you repeat the same language rather than choosing something different. For example, you could use the language from the Civil Rights Act of 1866 or some similar formulation. If you're idea in 1942 and 1952 was to not have ambiguity or not have an overly broad scope.

“I think if you look at the structure of that statute where it's 1401A and then B through H.”

And it says these are the people who are entitled to birthright citizenship. A is the constitutional standard. And then B through H are all the categories that Congress has superadded to that. I think the natural inference is that Congress is codifying which it was consciously doing in 1941 pulling all the naturalization rules. And immigration rules together into one statute and said, you go to one place, here's who is a birthright citizen. A, those who are guaranteed that right by the citizenship clause and B through H are the ones that Congress has added through its naturalization power.

So that inference to me says, A is merely, it's not trying to change or alter the constitutional standard just saying, hey, the baseline is the constitution says and we quantify that and then we move on to the new categories. What relevance, if any, do you think section 5 of the 14th Amendment has here that gives Congress the power to enforce the article the 14th Amendment by appropriate legislation. Do you think Congress room here or do you not think so? I do think that a ruling in our favor would leave room for Congress. I don't think you'd have to rely on section 5.

I think that Congress has its own inherent power to grants citizenship by statute. So if the court were to rule in our favor for the classes of individuals that they say should be covered, Congress has allowed it to do that. How much room do you think section 5 gives? If any, and it may not be any Congress to interpret the phrase subject to the jurisdiction there are four to define that. Does that, does that relevant at all?

Test from this court's case law. How that would apply here, I don't know. And I don't think it's presented because our contention is that the statute means exactly the same thing if anything is congruent and proportional.

“And I think the court held that in the United States against Georgia.”

You've mentioned several times the practices of other countries.

And that's obviously, as a policy matter supports, what you're arguing here, but obviously we try to interpret American law with American president based on American history. That's certainly what I try to do and I think you try to do. And so why should we be thinking about, even though it's a policy matter, I get the point thinking about. G European countries don't have this or most other countries, many other countries in the world don't have this, doesn't that.

I guess I'm not seeing the relevance as a legal constitutional interpretive matter necessarily, although I understand it's a very good point as a policy matter.

I largely agree with that and you can view it as being raised preemptively defensively. I'm going first, but obviously other sighting there in Miki say, you know, it's a prediction end of the world type predictions and our point is, you know, it's a very small minority country, almost every country and certainly all European countries have a different rule in the world hasn't ended there. The other side last one, the other side relies heavily, of course, on one can mark and you disagree with their interpretation. Oftentimes when you are dealing with a constitutional precedent like this, you might argue, we disagree with that interpretation, but if you adopt their interpretation or agree with their interpretation of that precedent, you should overall it.

And you haven't made that argument here, and I'm just giving you an opportunity to explain why you haven't. Because we think it's totally unambiguous, and one can mark it. The holding is relates to domiciled aliens, and so we strongly agree with the holding. We think domiciled was the touchstone, and we think it's not a coincidence for the reason that I may be speculated a little bit.

We're talking about how the descent raises this, and then the majority is like, we're putting domiciled in there, so we know that the absurd conclusion that they say would come from this isn't there.

But also domiciled as kind of the relationship that creates this relationship of a legion that makes you part of a political community, if you're an alien from another country. That's deeply rooted in their understanding when they're doing it. They've talked about domiciled and Yicuo gets Hopkins in the 1892 and 1893 cases, and there's this deeply rooted understanding, again, that goes all the way back to the early 19th century.

“So we think that's a really important conception. So I mean, we disagree with some of the dicta and won't keep mark that we discuss, and we think there's dicta that goes our way, that the other side overlooks.”

And we're not asking the court to overruled dicta, we just say don't follow a runeous dicta, and don't apply to this brand new situation that was not decided in won't keep mark. Thank you. That's the spirit. So General Sarah, when is Zoom out a little bit, and think about Yisoli and Yiseng Guinness? So as I understand it at the time of the 14th amendment, those were the two dominant approaches. You know, Yisoli, the English common law, roughly following the soil, Yiseng Guinness, roughly citizenship following the parents.

Now, Yisoli was very generous on the soil, the English common law, and so it extended citizenship those to those born there who may not have been born. Not have been born of parent citizens, but Yiseng Guinness, you know, if parents who are citizens and had a child abroad, then that child citizenship followed the parents.

“So one thing that's puzzling me about your argument when I think about the ratification of the 14th amendment, in many ways it would have made sense for them.”

If they wanted to accomplish what you're saying they wanted to accomplish, you could say, well, we're going to follow Yiseng Guinness because we're going to make it all right on parentage. But instead, I mean, the 14th amendment we're talking about subject to the jurisdiction thereof, but it also says born in the United States. So you have the Yisoli kind of point there, but you're saying it narrowed that point by tying it to the citizenship of the parents, at least as the soil. But I take it, you're not arguing that the United States citizens who have children born abroad would qualify for birthright citizenship.

So it's kind of a narrow view of both the traditional Yisoli rule and a narrow view of the Yiseng Guinness rule. So why would they have done that? And if they were going to invent an entirely new kind of citizenship, like an American brand, why wouldn't we have seen more discussion of that in the debates? I think you do, and I think the right way to conceptualize it is much more, it is a modified Yisoli because even the British sources don't just say you're born here, you're a citizen, they say you're born here and you have to be under the protection of the sovereign, you have to have a relationship of allegiance, allegiance is the word in Calvin's case.

I'm going to ask your friend on the other side of that question.

“Let me point out then that there are two criteria. One is birth on the soil and the other is legions or allegiance. We have birth on the soil remains the same, right?”

And so they are, and that's why so much a warm Kimark is actually we agree with, because they are adopting a modified British rule. They are not going the French rule, you know, the Patel talks about where it's like who's the citizen, that had to be done by statute as you pointed out, which it was in 1401. But what they've got is they say birth in the United States and subject to the jurisdiction they're of. That is talked about as allegiance allegiance allegiance in the congressional debates, but they were clearly not incorporating the British feudal monarchyal conception of allegiance, where it's indifisible.

I mean, going back to the early 1700s, our nation had reputed the notion that citizenship is indifisible, the expatriation statutes that go in for late 1700s reflect that. And again, you look at the 1868 congressional report that we cite there, this is the same group of congressmen, Republican congressmen, and they say things like the US Constitution itself is proof that blackstone's theory of allegiance was not accepted. So they accept birth on the US soil, but then they take the concept of allegiance and give it its Republican democratic American understanding.

And that's very, very, I think that makes a ton of sense. Okay, let's talk about its applications. So, you know, there are some, I can imagine it being messy and some applications. So, how what would you do with what the common law called families? You know, the thing about this is then you have to adjudicate if you're looking at parents, and if you're looking at parents, domicile,

“then you have to adjudicate both residents and intent to say, what if you don't know who the parents are?”

I think there are marginal cases that when I think has the benefit of being addressed in 1401, after we're talks about that. Yeah, yeah, yeah, yeah, but what about the Constitution? Under the Constitution, it's domicile is a constitutional standard in all kinds of other situations. Well, and it's hard.

The first intersection, personal jurisdiction, sorry.

Well, yeah, and a personal jurisdiction, I mean, 1332, diversity jurisdiction. And the thing is, it has to be litigated because it turns on intent. And both the virtue of both you solely and you sang with us, whichever one you pick, it's a bright line rule.

“How would it work? How would you adjudicate these cases?”

You're not going to know at the time of birth for some people, whether they have the intent to stay or not. Including, including US citizens, by the way. I mean, what if you have someone who is living in Norway with, you know, their husband and family, but a silly US citizen comes home and has her child here and goes back? How do we know whether the child is US citizen because the parent didn't have an intent to stay?

I'd say, make two points one, practical, one legal, the practical point is under the terms of this executive order. You don't have to because the executive order turns on objectively verifiable things, which is immigration status. Are you lawfully present, but temporarily present, or do you have an illegal status? So those kind of like, you know, taking evidence, so to speak, under subjective intent, wouldn't be done. And as to the constitutional point, obviously, domicile is baked into a lot of constitutional and legal concepts.

And there may be situations where facts are determined, but if you look at the guidance, the guidance that all the agencies did after this court in Casa said the agency can go for an issue, guidance. The guidance provides, I think, very, very clear, objective, verifiable approaches to doing this. And so the practical matter, I don't think it's presented by this executive order. Thank you, General.

Justice Jackson. Good morning, General. So I guess I am looking at your position in this case, and it boils down to requiring us to do at least these two things. One is believe that the framers were not importing the common law rule and understanding of birthright citizenship.

And the second is to believe that what they were doing was departing from that common law rule in the way that you suggest that is in the, they were seeking to have this turn on domicile.

I think you have a number of hurdles to accomplish those two things. One of which, I think, is that when we look at this court's case law, and no one, I think, is mentioned, sooner as exchange. But it appears that that was a 1912 case in which it seems as though the court had already accepted at the time of the ratification of the 14th Amendment that the allegiance that you were talking about was the English common law rule. In other words, allegiance meant that you are covered by the laws of the jurisdiction that you can rely on that jurisdiction's protection.

Now, you're saying today, no, no, allegiance meant something about loyalty or that kind of idea.

But if the Supreme Court had prior to the 14th Amendment established that allegiance meant the common law definition.

“I think your first hurdle is to help us understand why we would believe that when the 14th Amendment was ratified, the framers weren't just incorporating what we had previously said it meant.”

The page 572, the congressional record, directly addresses this. They say the concept of temporary and local allegiance from the Schooner Exchange is what is meant by our temporary and local jurisdiction from the Schooner Exchange is what is meant by the word jurisdiction in the 14th Amendment. Senator Trumble says, I thought about saying, oh, allegiance, but again, quote, there's a sort of allegiance from persons temporarily resident resident in the United States, whom we have no right to make citizens.

Expressly and conscientious. Okay, well, what did we do with, I mean, that's a debate and it's the discussion very valid, but then we have a subsequent debate between Fesendon and Wade, where the same concept comes up and it becomes clear, at least from Senator Wade's perspective that that's wrong.

So, Fesendon, and I'm not sure whether these are senators, I apologize. Fesendon says, suppose a person is born here of parents from abroad temporarily in this country.

Wade responds, the senator says a person may be born here and not be a citizen. I know that is so, in one instance, in the case of the children of foreign ministers who reside near the United States, et cetera, et cetera. So it appears, as though, in that this exchange, at least, Senator Wade believed that the English common law understanding of what it means to have allegiance to be a temporary person on the soil was what was being adopted. Yeah, that exchange strongly supports us. If you look at it in context, Senator Wade is introduced a version that says only birth on U.S. soil and doesn't have any allegiance or jurisdictional element to it.

And so, Senator Fesendon stands up and says, well, that can't be right, because, you know, obviously, what about the children of temporary visitors? It has this, you know, it's another one of these statements that has this appeal to a background understanding that we all agree that the temporary visitors, their children do not become citizens. And then Senator Wade has to kind of backtrack and say, well, what do I make children of ambassadors? And in the end, Congress does not adopt Senator Wade's proposal. So we think that you said you can draw an inference of that, the inference strongly supports.

All right, well, let me just ask you about why we wouldn't see in the 14th Amendment anything about parental allegiance, several of my colleagues have talked about the fact that your view of this turns on what the status of the parents are.

Not the child as would the born in the United States view of it.

“Can you help us understand why wouldn't expect to see a mention of parents in the text of this amendment?”

I think it was well understood that, for example, children cannot, new words cannot form domicile, so it followed every 19th century. That assumes domicile is in the test. And I'm asking you, how do we know that Congress did adopt the test that you say it adopted? When you look at 19th century conceptions of allegiance, the notion that the allegiance, again, you say domicile is instantiating the concept of allegiance for aliens as opposed to citizen. All of that, the 19th century understands the newborn's domicile, its allegiance follows the allegiance of the parents.

And I point out that their theory relies on parental allegiance as well, because they recognize the exceptions for, you know, hostile invading armies for tribal Indians for ambassadors. The ambassadors, again, the child's allegiance status, even on their view, turns on the status of parents.

“What do we do with Professor Mueller's Amicus Brief and the historical record?”

And the fact that even at times in this country where we understood that the parents were declared enemies of the United States. I'm talking about World War II and Japanese internments, babies born in that circumstance were given birthright citizenship. So it seems as though this concept of allegiance of the parents really wasn't driving birthright citizenship, at least at this period of our history. So we're saying this is wrong or they shouldn't have gotten birthright citizenship. Well, if they were domiciled here, yes, they should have, if they were temporarily present, then no, but the executive practice we can see.

How does the temporary presence run with your concept of allegiance? I'm not sure I understand, so can you be clear? Are you saying that only people who are domiciled here as you define it can form the necessary loyalty to the United States?

Oh, it's a reciprocal relationship between the citizens, whether they wanted or not, they have that allegiance.

And I think it's powerful.

On the basis of what? I'm a silent. I mean, that's what it says, and so many words in the Venus and the Pazaro, it says, look, if you're talking about an alien, if they're just temporarily passing through, no, they don't have allegiance, but if they've made it, they're permanent home, they become part of our political community, and they are analogous or akin to. Yes, it is. All right, just quickly because I'm mindful of the time.

“What do you do with one 10 arcs statement that birthright citizenship is applying, quote, independently of a residence with intention to continue such residents, independently of any domiciliation?”

I know that they used domicile.

It's a fact in the case, but that's not a part of their holding. It's not what the reasoning turns on. I agree. Yeah, I believe you're quoting for page 693 that opinion goes on to say, not citizen terms on that, but the duty of obedience to our laws, it doesn't take the further step at that point and say, therefore, if you have temporary and local, these are a citizen, and immediately before that, you have that, page 693, summary of the court's holding, where it says. Can our incorporates a domicile requirement? That is the holding. It's definitely clearly expression the holding. When final thing perspective, you say perspective, we're supposed to do this. Don't worry about the people who are already here, and who would not qualify under your rule.

How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents, is this happening in the delivery room?

Or are we determining when or whether a newborn child is a citizen of the United States under your rule?

“I think that's directly addressed in the SSA guidance that's cited in our brief. What SSA says is there's currently a system where, for example, secure social security numbers are generated based on the birth certificate.”

They say this can still be for the vast majority of instances, completely transparent. You will still get it. I'm just talking about the particulars, because now you say your rule turns on whether the person intended to stay in the United States, and I think just as bear it brought this up. So we bring pregnant women in for depositions. What are we doing to figure this out? As I pointed out earlier, the executive order turns on lawfulness of status. So if you give birth to a baby in the hospital, right now, it gets the birth certificate in the system, there's a computer system.

There's no opportunity. There's apparently no opportunity then for the person to prove or to assay that they actually intended to stay in the United States. Absolutely not. The opposite is true. There's opportunity to dispute if they think they were wrongly denied, which will only happen in tiny minority cases. This directly addressing that guy.

“After the fact after their baby has been denied citizenship, then we can go through the process.”

In the way that I mean, I'm summarizing because I'm not an expert. Yes, but there's a computer program that currently automatically generates a social security number. As I say, it says, look, a social security number. Non-citizens can have them if they were authorisation. So it has improved citizenship. We'll give you a social security number provided that there's the system automatically checks the immigration status, the parents, which they're robust databases for. And then if here's no different to the vast majority of birthing parents. Thank you.

Thank you, council. Mr. Chief Justice, and may it please the court, ask any American what our citizenship rule is and they'll tell you. Everyone born here is a citizen alike. That rule was enshrined in the 14th amendment to put it out of the reach of any government official to destroy. When the government tried to strip Mr. Wong Kim arcs citizenship, on largely the same grounds they raised today, this court said no. Thirty years after ratification, this court held that the 14th amendment embodies the English common law rule.

Virtually everyone born on US soil is subject to its jurisdiction and is a citizen. It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign jurisdiction even when they're in the United States. A closed set of exceptions to an otherwise universal rule. My friend has now clearly said that the government is not asking you to overrule Wong Kim arc. That is a fatal concession because Wong Kim arcs controlling rule of decision precludes their parental domicile requirement.

That dissent understood that and the majority tells us six times in the opinion that domicile is irrelevant under common law. Lynch vs Clark was already the dominant American case on citizenship and it held that the US-born daughter of temporary visitors from Ireland who took the baby back to Ireland with them that that daughter was a US citizen.

Justice Field said in 1884 that that reflected the general understanding.

“That understanding was confirmed by Congress with its 1940 act.”

The 14th Amendment's fixed bright line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable and it prevents manipulation. The executive order fails on all those counts. Swas of American laws would be rendered senseless.

Thousands of American babies will immediately lose their citizenship.

And if you credit the government's theory, the citizenship of millions of Americans passed present and future could be called into question. All of this tells us the government's theory is wrong. I welcome the court's questions. There are five exceptions to citizenship that you do accept. Yes, depending on how many you count, Justice Thomas, how you count them.

What is the underlying rule of law that you use to connect these five exceptions?

Sure, so as I just said, all of the exceptions involve situations where that US born child is not subject to the jurisdiction of the United States because that extraterritoriality, the fiction of extraterritoriality. The interaction of another sovereign between the United States's jurisdiction and that person applies to the child as well as to the parent. Everyone else born in the United States is subject to the United States' jurisdiction to answer Justice Barrett's question to my friend.

“That's what sets those exceptions apart from other US born persons.”

We've heard a lot of talk about long, Kim Mark. And you dismiss the use of were domicile in it. It appears in the opinion 20 different times. And including in the question presented and in the actual legal holding in the government, it doesn't want it to be overruled because it relies on willing to rely on that particular fact in that case. Isn't it at least something to be concerned about to say that since discussed 20 different times and has that significant role in the opinion that you can just dismiss it as irrelevant?

Well, Chief Justice, I think we have to look at what the controlling rule of decision is in Wong Kim Mark. Justice Gray takes pains in the majority opinion to set out his analysis. He first starts with a premise that in construing the 14th Amendment citizenship clause, we look to the English common law. That was the rule that applied from the colonial era on at least for the colonists and for European immigrants. He then says, "Look, Chief Justice Marshall tells us in the skin or exchange what subject to the jurisdiction means." Again, looking to the English common law.

Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance. And those who are present in the dominions of the sovereign, owe temporary allegiance for as long as they're present. The only exceptions again, common law were ambassadors, people born on foreign ships, and people who are born during periods of foreign occupation. He then gets to the government's favorite page, 693, where he says, "Look, we have had this rule in the United States as just citizenship, at least for white Americans, from before independence."

The purpose of the 14th Amendment was to embrace that universal rule of birthright citizenship to embrace and incorporate the common law exceptions with the single additional exception of the preexisting exception for tribal Indians that we had in the United States, which is an analogous exception. And that's the close set of exceptions. You can't make sense of the holding in the case without looking to the controlling rule of decision, which is the common law.

“And I think my friend agrees that under English common law, domicile was not relevant, and the children born to temporary visitors in the territory of the sovereign were always considered birthright citizenship.”

Ms. Wong, I mean, everything you say strikes me as, yeah, that's the way I read it to, but then what are those 20 domicile words doing there? You can take some of them and say, I don't know, they were just summarizing the facts of the case, but not all of them, and why did they keep on, why did they sprinkle that in the opinion?

Just as Gray writes, again, after setting out the English common law rule and the exceptions, with the single additional exception for children of members of Indian tribes, that the amendment in clear words and manifest intent includes the children born within the territory of the United States of all of their persons of whatever race or color domicile within the United States. And as was pointed out earlier, the very next part of the, that same paragraph, he cites to Webster talking about thrashers case, and he says, people who are born in this country, old allegiance independently of a residence within, sorry, foreign nationals, old allegiance independently of a residence within tension to continue such residence independently of any domiciliation.

And independently of taking any oath of allegiance, which is totally contrary to both the government's theory of dual allegiance or partial allegiance and to the theory of domiciliation. I mean, I would, I might agree with you, if domicile had simply been sprinkled in the opinion, but in one remark, it's a long opinion, but it begins by saying, here's the question, and it ends by coming back to the question, and it says, here's the question, stated at the beginning of the opinion. Whether a child born in the United States, a parent of Chinese descent who at the time of his birth or subjects of the emperor of China, but have a permanent domicile and residents in the United States, and are there carrying on business and he states the diplomatic exception, and he says, for the reasons above stated this court is of the opinion that the question must be answered in the affirmative.

“I put domicile in, sometimes it's hard to figure out what is the holding of the case, here he tells us, this is the holding of the case, why put domicile in there?”

It's just something, it's something irrelevant that he wanted to throw in, it's like whether a child born in the United States or a parent of Chinese descent who once resided at a particular address in San Francisco who attempted to enter the country at the port of San Francisco. Why put it in if it's irrelevant?

Well, Justice Lito, I'll give you two responses, the first is that again, it was a stipulated fact.

The second is that regardless of what the judgment in the case was, which again was an off-horseiori application of the rule of decision, the rule of decision in Wang Kemark has binding presidential effect.

“Even if you think that Wang Kemark decided the case based on the stipulated facts, you have to follow that controlling rule of decision, and if you follow that rule, you get to the same result for people without domicile.”

Wang Kemark says six times in the first parts of the opinion, as well as on the page the government focuses on, that domicile is not relevant.

At least some authorities took the view that the non-domicillary question wasn't decided, remained open and even continued to press the view that domicile is required. Now, I know you've got a lot of good stuff on your side too, but what do we do with the fact that many, many sound legal authorities thought it remained an open question, even if one of them wasn't John Marshall Harlan.

“I'd like your example from Justice Harlan's lecture here in DC.”

So here's what I would say, all of the government citations in their brief.

Generally, either were rejected by Wang Kemark expressly if they predated Wang Kemark. If we're trying to understand how the legal community understood what happened in Wang Kemark, it seems to me it's a mess, so maybe you can persuade me otherwise. Wang Kemark authorities, the government sites. Each one of them is inconsistent with Wang Kemark's reasoning or doesn't mention it at all. Most of them are have very little reasoning at all, and in contrast what we have on our side, post Wang Kemark, is numerous federal court decisions around the time of Wang Kemark between ratification and Wang Kemark that said that domicile is not relevant.

Wang Kemark's claim was about the daughter of temporary sojourners. We have the sixth edition of Kent, which was cited in Wang Kemark, and of course was then cited after Wang Kemark was decided by many authorities, again discussing temporary sojourners.

Members of Congress, speaking on the record on debates on immigration laws, where they were finally passing these immigration restrictions that Senator Cowan wanted, and they all stated either that Lynch was a rule, that Attorney General Bates had stated the rule, again, citing Lynch, or Kent, and stating the rule that everyone board in the U.S. is a citizen and saying, "Look, children of Chinese immigrants, these immigrants who are unwelcome, these immigrants that Congress is in danger." They are now trying to bar from entering the United States. If they are children, born in the United States, are citizens. We have an 1896, so a couple years before Wang Kemark, but in 1896, state department regulation, which said the U.S. born children of foreign nationals are U.S. citizens accepting only the children of ambassadors.

And then you have Marshall Woodworth, who is a U.S. attorney who writes in a larry view article that he's talking specifically about temporary sojourners children and he says, "I don't think that's a good rule from a policy perspective, but that's the general rule."

Can I offer a possible explanation for why Justice Gray made a point of putting domicile in what he said was the holding of the case?

And that added is this. Wang Kemark and his parents had they come to the United States from Europe, could have been naturalized, but because they were Chinese, they could not be naturalized, and they had done everything that they could to make themselves Americans by establishing a domicile in the United States.

“So that's what this was about. He couldn't get naturalized because of a racist law, but they had done everything they could to become part of the American society.”

At the same time, there were many, many men who were horribly exploited, brought to the United States to work on the transcendental railroad to work in mines.

They were walked to work to death, they were treated horrifically, but they were not, they were overwhelming men, that wasn't an indication that they would stay here, they could stay here, they didn't have permanent homes.

And the opinion is drawing a distinction between those two categories of people who would have been well understood at the time when Wang Kemark was decided.

No Justice Lito, I don't think that's a plausible explanation for why Domiciles mentioned in Wang Kemark because again the controlling rule of decision based on the English common law and cases from Schumer Exchange to Lynch versus Clark to state versus manual, which was the North Carolina decision that said look the rule in the United States from independence on has been the English common law rule. That explanation would be inconsistent.

“Isn't that explanation? I take Justice Lito's point and I think he actually makes a good one in the sense that it could be that Justice Gray emphasized Domicile to help the public accept the outcome of this case.”

You're suggesting that the emphasis on Domicile was not a part of the rule, meaning he wasn't saying you had to be like a foreigner who is doing everything they can and who can't be naturalized, but he might have emphasized those facts in this case precisely because Chinese immigrants were unwanted. It was precisely because he had to get this out into the public and people were going to say, "Whoa, you're saying these people have to this baby has to be a citizen."

“And so one could imagine that it was important from a standpoint of helping people accept this citizen rule under these circumstances to emphasize that these particular people in this case were in Justice Lito's first category.”

I think that is very possible, Justice Jackson and as evidence of that, I would point to the fact that if you look at the briefing in Wong Kim Ark, you'll see that even though the parties had stipulated in the district court that Wong Kim Ark's parents were Domicile in the United States, when the case came to this Supreme Court, the government's brief argued that it was impossible for Chinese immigrants to have Domicile because they expressed the view.

There was a common view that Chinese people were inherently temporary sojourners in the country.

And so I do think it's possible, Justice Lito and Justice Jackson, that he was trying to dispel that notion and tell the government. At least it reads as though he's trying to calm everyone down, these particular people were Domicile, but we're following the English common law rule. And when you look at the English common law rule, Domicile is not a factor. That's right, I think who knows why the majority of opinion mentioned Domicile, we know is a stipulated fact, we know the government tried to renegle on that stipulation and rely on this assumption on the part of anti-Chinese advocates at that time that Chinese people couldn't form a Domicile in the United States and he followed the English common law rule.

I just wanted to ask you a question about how the exceptions fit within the general rule.

You've called them exceptions and some of the common law sources call them exceptions, so I take that point. But if we think of you solely as tied to the territory and we look at the exceptions as territorial in a sense, then they seem kind of like natural outgrowth of that rule. And this is what I mean, and this is where I want your help with how the exceptions played out in practice. If you look at Indian reservations as unique places because Indians were quasi-solverance separate nations in the American system, if you look at occupied alien territory as territory that's outside the jurisdiction of the United States.

And then if you look at the diplomatic exception almost like diplomats and their children have little bubbles around them, like the embassy is really the territory of that country. And even when they're traveling around, they're all not subject to the jurisdiction by virtue of this territorial fiction. Are those just applications of the rule?

“And if they are, then what happens to alien enemies like the German spies and X-part A-queerin or what happens to Indians who are actually not on the reservation, but maybe born, say, in Baton Rouge?”

How does the rule apply in those situations? Is it travel with the person or is it tied in some sense to the land? Sure, so let me answer each part in turn. So the thing that all of the exceptions have in common, again, is this sense that the person has this fiction of extraterritoriality around them. Let's set aside the Indian tribal exception for a moment and come back to it. So the example of enemy aliens, for example, X-part A-curin, is one that is answered by just a story in both English and in rice.

And the touchstone under the American application of English common law was that in wartime, the touchstone is whether there's a foreign occupation of US territory.

And that's just to interrupt for one second.

And that is territorial. Sometimes it just seemed to me that the rule varied, sometimes it was stated as enemy alien, and sometimes it was focused on occupied territory. So the rule, I don't think there's a separate rule for enemy aliens, and the government's briefs describe the exception as an enemy alien exception.

“I don't think that is the best way to think about it.”

Rice and English tell you that when the British forces are occupying casting in Maine, no one is subject to US jurisdiction there. Because Britain is ruling is governing casting in Maine. And just a story explains, look, if the US then retakes that territory, people who babies were born to US citizens by what he called post-liminy become US citizens. So that's the way to think about any wartime situation, enemy aliens, or otherwise. As we heard earlier, Professor Mueller's amicus brief tells us how we thought about enemy aliens in wartime, even in World War II when the United States was detaining Japanese nationals who were deemed enemy aliens of the United States.

When those enemy aliens had babies in these detention camps, everyone agreed that those babies were US citizens, and Professor Mueller goes on to explain that there are many cases of those US citizens going on to a lifetime of government service to the United States. Everyone agrees those babies are US citizens like everyone else.

“So again, the touchstone for enemy aliens is what about Indians? What about the Indian who's off the reservation or born off of the reservation?”

Sure. So to start with the basics, the referred to the Indian Tribal exception just to use the term of art.

We know that from the Marshall trilogy of cases, we know from Worcester versus Georgia, where Chief Justice Marshall said that the tribes are essentially a distinct political community.

Well, I understand all that, so just the entrance of time, just to address you. How I understand why the Indians are treated differently for purposes of the law, but I want to know is it tied to territory or is it tied to the status of someone as a member of a tribe?

“Because if you're looking at it because of the special relationship of Indians to the United States as a matter of the constitution, et cetera, well, I mean citizens of France are citizens of a different sovereign as well.”

Sure. So Elk versus Wilkins doesn't really answer that question. The court says there are two ways to look at this. Either you look at it as the tribal member is like an ambassador, or you can look at it like there's a territoriality issue where people are born on tribal lands.

And therefore if they're essentially, I think he says Justice Gray says at room point, we might as well be talking about someone who's born in Mexico.

Well, there's a lot in Elk. And similar, it's not terribly helpful for you. It seems to me because Justice Gray, again, strikes again, says that they may be subject in some degree or respect to the United States. So there's some jurisdiction. He says they're born in the geographic limits. They are in a geographical sense born in the United States.

“But because they are not completely subject to the jurisdiction of the United States and all allegiance distinct from the United States, that's what takes them outside.”

And that language, sure sounds a lot like the solicitor general's presentation today.

So the contrary, Justice Corps, such I embrace that part of Elk versus Wilkins is holding. Just as Gray, of course, both Wong Kim or I know, and it's a struggle. Sure. Let me try to help you out with that. So, you know, the government tries to make it seem as though what sets the exceptions apart, what defines the exceptions, is that the government has some maximum theoretical power. The government could have exercised plenary regulatory power over the tribes, and therefore that's the same situation as a foreign national in the United States.

But that's actually not true because remember, if there's always this background notion, whatever the parameters of the relationship between the United States government and tribal nations at that time of ratification, there was this constitutionally distinct status of the tribes and tribal members, the setting them excluding from a portion meant, which came, was renewed in the 14th Amendment. And that's not true for our nationals. If the government were right, that the question is what's the maximum theoretical power the government has?

There would be no ambassador exception because, of course, the United States could decide in some instance to go ahead and prosecute an ambassador. There would be intersovereign comedy considerations there.

“That's how you define the exceptions. And as Wong Kim or Ikses, Elk versus Wilkins has no bearing on the question of foreign nationals.”

Ms. Wong, on the earlier answer you gave to Justice Gorsage on the Temporary Sojournerance Cases, those were distinct cases, correct, where the parents had come to the US and didn't want to give citizenship to their kids to tilt them out immediately, correct? I'm sorry, Justice Sonoma, I'm not sure which cases you're referring to. All right, that we can look at. Ms. Wong, would you agree that the citizenship test in the 14th Amendment is the same as the test in the 1866 civil rights act? So the words are obviously different. What Wong Kim or Ikses tells us and what the debates tell us is that the framers, they were the same Congress, obviously framing both. Congress was trying to do the same thing with both the 1866 Act and with the 14th Amendment.

And to capture the common lockceptions and the Indian tribal exception. They started out with the two separate phrases, not subject to any foreign power, plus excluding Indians not taxed, and as Justice Gray described it in his majority opinion in Wong Kim or Ikses, they decided to switch to the affirmative phrase subject to the jurisdiction. Yeah, and do they mean the same thing and wouldn't it be very odd if the citizenship test in the 14th Amendment were broader than the citizenship test in the 1866 civil rights act, particularly in the light of fact that the the 1866 civil rights act was reenacted after the adoption of the 14th Amendment and remained in place until 1940.

Okay, so then I think we can turn to the language of the 1866 civil rights act, because it's more straightforward.

You know, subject to the jurisdiction there, I like the you know, the puzzle wrapped in an enigma wrapped in a mystery, but not subject to any foreign power is pretty straightforward. So let me give you these examples. A boy is born here to an Iranian father who was entered the country illegally. That boy is automatically an Iranian national at birth.

“And he has a duty to provide military service to the Iranian government. Is he not subject to any foreign power?”

Not within the meaning of the 1866 act just to Salito, and that's clear from Wang Kim Ark and it's clear from the debates. What the framers meant by the phrase not subject to any foreign power was referring to the ambassador exception.

If it meant what the government contends, basically not a subject of any foreign power that you were that another country considers U.S.

you sang Witness citizen, then lawful permanent residence all for a national ordinary public, ordinary public meaning of that would certainly encompass that boy would it not? Just to Salito, if you think that the language of the 1866 act was ambiguous, as Wang Kim Ark says, the shift to the language of the 14th amendment, which is the operative text certainly clears up any ambiguity. What I said about a boy born to an Iranian father is true of children born here to parents who were nationals of other countries.

If I'm correct, it's true to a child who's born here to Russian parents. It's true to a child who's born here to Mexican parents. They're automatically citizens or nationals of those countries and have a duty of military service.

It seems like that makes them subject to a foreign power.

But again, Justice Lito, that would have meant that the children of Irish, Italian and other immigrants, which Wang Kim Ark refers to and the framers refer to, would not have been citizens either. Because if the only test is whether that U.S. born child is considered a citizen by another country under their U.S.s.s laws, then no foreign nationals children would exist. Well, all of those cases the parents could be naturalized and then the children would be derivatively naturalized when the parents were naturalized.

One Kim Ark, I'm sorry, I don't know if they played a song. One Kim Ark has a passage explaining how this court should treat Dicta and it quotes something that John Marshall said. It is well, this is quoting from Wang Kim Ark. It is well, to bear in mind the off-quality words of Chief Justice Marshall, it is a maximum, not maximum, not to be disregarded. The general expressions in every opinion are to be taken in connection with the case in which those expressions are used if they go beyond the case.

They may be respected, but not to control the judgment in a subsequent suit. When the very point is presented for a decision, so does that fall within the, you know, what's good for the goose is good for the gander wool?

“That's how Wang Kim Ark treats what was said in the slaughterhouse case cases.”

Should we apply that same rule to Wang Kim Ark itself? Wang Kim Ark tells you what to make of the slaughterhouse Dicta. It was Dicta, the issue of citizenship was not at play in slaughterhouse. And in contrast, the parts of the holding, the parts of the decision that I alluded to, are the controlling rule of decision. Again, we look to the English common law in construing the 14th Amendment.

Thank you counsel, Justice Thomas. Anything further, Justice Lito? Just a couple more questions.

“So if those who framed and adopted the 14th Amendment had wanted to limit the citizenship test to just those specific groups that you concede fall outside the birth rights of citizenship rule, why didn't they refer specifically to those groups?”

Why did they adopt the general rule? They could just set all persons born in naturalized in the United States, excluding Indians not taxed. And those ineligible under common law are citizens of the United States, and of the state wherein they reside.

excluding Indians not taxed, and the children of foreign ambassadors are foreign invaders are citizens of the United States.

“And of the state wherein they reside, but they didn't do that. They adopted the general rule.”

So what's the explanation? I would say the one remark tells us what the explanation is that the framers of the 14th Amendment after overriding President Johnson's veto wanted to adopt a universal rule with a closed set of exceptions. And they believed that subject to the jurisdiction of the United States did that. And that term does describe both the universal general rule and the common law exceptions, but the sole additional American exception for tribal Indians.

Thank you. This is so rare.

This way I don't have not quite understood the solicitor generous argument that lawful domicile somehow changes the U.S.s. Dominion over a person or allegiance, even in just as Alito's examples. If your parents are Iranian, if you get permanent lawful permanent residency here, that child still by their laws when it leaves the United States, it must serve in the Iranian army, correct? Well, I don't know the answer to that. What I can tell you is that under Wong Kim Ark, the court says, we don't care about problems of dual nationality.

We don't look to other countries laws in construing our 14th Amendment.

“Well, it was undisputed there that Wong Kim Ark's parents owed loyalty to China, correct?”

Sure. What I'm saying is, even if you become a permanent resident, you're not a U.S. citizen. So you're a primary loyalty still remains with your citizenship country, wherever you came from. That's right, just a set of my words. It's on your point now. You understand what I'm saying, and during temporary, whether it's lawful or unlawful, temporary presence in the United States, you are subject to the U.S. laws, correct? That's right. The question that the 14th Amendment asks is whether the U.S. born child is subject to U.S. jurisdiction when they're born.

Meaning, are they within the U.S. territory? Exactly. Other than people covered by that closed set of exceptions. Thank you. That's right. In other words, the government's rule, which really is looking at whether someone has a divided allegiance because they're a citizen of another country, would exclude the children of all foreign nationals. And that isn't what they're saying.

Exactly. So the only way that allegiance lawful or unlawful has no play in this question. I would say that the relevance of allegiance is the relevance under the English common law rule, that's embodied in the 14th Amendment. All persons born in the territory of the sovereign, oh natural allegiance. It was a time for the limited three limited exception precisely. This was Kagan.

“I think I'd like to take you back to the first question that Justice Salito asked General Sauer, and it was this question of, what do we do if we think we have a new problem that didn't exist at the time?”

Of the 14th Amendment. I don't think, actually, that the US government argues the case this way. But let's put the US government's arguments aside and just ask something like, well, everything that you're saying would suggest an answer to the question of people who, the children of people who are temporarily in the US, but here, lawfully. Is there any way that there might be a different answer with respect to the children of people who are here unlawfully, because of this new problem issue that Justice Salito has raised?

No. There is no difference. And of course, the government's arguments as to people who are unauthorized immigrants in this country all runs through and hinges on their domicile requirement. The first thing I would say in response is that once again, it's crystal clear from Wang Kemark and from the debates that the framers of the 14th Amendment meant to have a universal common law rule of citizenship subject to the closed set of exceptions. And we can't take the current administrations, policy considerations into account to try to re-engineer and radically reinterpret the original meaning of the 14th Amendment.

The second point I would make is that in fact, the framers did consider the concept and the actual problems of immigration that were coming up at that time.

He says Senator Connais, in your state of California, you will be facing a mass flood of Chinese immigration.

“If we adopt the citizenship rule and Senator Connais himself and Irish immigrant says, yes, and I am voting for that because I believe in citizenship by virtue of birth without regard to parentage.”

And the third point I would make is a historical one, which is that recall that at the time the framers are thinking about birthright citizenship.

There just been 15 or 20 years of unprecedented immigration from Ireland. There were the no nothing party was dominant in the 1850s, just a decade earlier, and they were vehemently opposed to Irish immigration. They believed Irish Catholic immigrants were unassimilable and could never become Americans, but even the no nothing party numbers of Congress believed that the children born in the United States to those Irish immigrants were citizens like anyone else. That's the intuition that the framers of the 14th Amendment had. Contrary to the government, the government's arguments now, they wanted to grow this country. They wanted to make sure we have a citizenry to populate the military to settle the country.

And they also had an intuition that was consistent with the founding of version to inherited rights and disabilities. >> Thank you. Just this course, it's just a scavener. >> On a lynch fee clerk, which you cite several times in the brief in today, which I appreciate. The government's response is that the decision was questioned at the time and when unmentioned and congressional debates about the 14th Amendment, I just want to get your response to that point on lynch. Sure, not true, though the lynch was not specifically mentioned by name. In the 14th Amendment debates, it was a couple of months earlier in the debates on the 1866 Act, where Senator Trumble, I'm sorry, Senator Lawrence talks about the great case of lynch versus clerk, where it was conclusively shown that all children born here are citizens without any regard to the political condition or allegiance of their parents.

And then of course, they discussed the children of temporary sojourners elsewhere without mentioning lynch. >> It's not isolate a point that you've mentioned, which is if the 14th Amendment used the phrase not subject to any foreign power, given much tougher argument.

“And earlier I think you indicated that that's what they meant, even though they didn't say it. I just want to give you a chance to unpack that because I think that's it.”

>> Sure. >> If it said that, I think our history would be a little different, and I think the text even put aside the history because that speculation, the text would be quite a bit different. So let me answer in three parts. The first is that Wang Kimark tells us that, you know, the court already dealt with this and said, look, the framers were trying to do the same thing with the language of the 1866 Act. To the extent you think that the language is ambiguous or not as good, let's look at the operative text subject to the jurisdiction thereof.

The second point I would make is that it's clear from the debates that the framers in using the phrase not subject to any foreign power were thinking about ambassadors.

“And I believe that Senator Wade at one point says, well, I wanted to start with the phrase, all persons born in the United States are US citizens, but then I thought, oh wait, we have these temporary visitors.”

We can't make citizens, and we can't make their children citizens. That's ambassadors, and that's very clear from. >> So if that had been the text, your argument would be that was understood to be narrower than its text would read. >> Yes. >> That's not the text, so I guess we don't need to deal with that.

>> Sure, and that brings me to my third point, which is, you can't read, not subject to any foreign power the way the government urges you to, without making the children of all foreign nationals.

We're in nationals, non-citizens, and that's clearly not what the framers were doing. >> Justice Alito and Justice Cagan raised an interpretive question that I think is important, which is are the exceptions, you've used the word closed many times, frozen, or do we reason by analogy to the exceptions that existed based on things that were unforeseen at the time?

I'm thinking in particular about the non-citizens unlawfully in the country, not the temporary part, but the non-citizens unlawfully in the country.

“>> Sure. >> Could you reason by analogy, you've used the phrase the several times of the fiction of extraterritoriality, and could that apply, and if not why not?”

>> Sure, so here I agree with Professor Wittington, who says that the government's position here is not positing a new application of the rule, but a challenge the rule itself. And I think that's right. We know that the 14th amendment's rule does provide for a universal rule with a set of closed exceptions. Long Kim Mark says so, at least twice, it says in an earlier passage that the framers were not trying to introduce any new exceptions to the contrary. They were trying to foreclose any cast-creating exceptions like the court had created in Dred Scott.

The second reason we know this is that the debates themselves had the framers saying, number one, we are declaring what is already the law in this country, at least for white Americans, and we are putting any further exceptions to birthright citizenship outside the reach of any future Congress. They were very concerned about that. That's the whole impetus for the citizenship clause. And the third thing I would say is that it would be contrary to the central purpose of the 14th amendment citizenship clause to admit new exceptions for all those reasons.

The entire history of the citizenship clause is driven by the notion that we don't want to have any other exceptions.

And then, relatedly, just a separation of power's point would get your answer. I understand your point about the executive order, but Congress is authority under section five of the 14th amendment. I guess the answer you just gave means they don't have any authority to look at this even if they passed it, 435 to zero in the house, 100 to zero in the Senate, and said we're carving out a new biology to the existing categories, a new exception, your point is no, they're closed, they're frozen forever.

Correct. And the way I would put it is that the citizenship clause of the 14th amendment, again, has a universal rule with a closed set of exceptions, it sets a floor. So the Congress has under the naturalization clause, the power to expand. It's citizenship to other people not covered by the 14th amendment, and obviously they have in many ways, but they can't go below that floor that the constitution sets.

“I think Mr. Sauer acknowledged that and you mentioned this in your opening that if we agree with you on how to read one can mark, then you win.”

So that could be, if we did agree with you on one can mark, that could be just a short opinion, right?

That says the better reading is respondents reading, government doesn't ask us to overrule a firm. That's that, then last question though, why would we address the constitutional issue this last one? Why would we address the constitutional issue? Given your argument on the statutory, our usual practice is your well aware, of course, is to resolve things on statutory grounds and not to do a constitutional grant. Sure, you know, I think we obviously have these two paths to win here, we're happy to win on either or both of them.

“I do think it would be prudent for the court to reaffirm its decision in one can mark where it's a landmark decision about the definition of national citizenship in this country.”

I just think it would be prudent for the court to go ahead and reaffirm that, but of course we're happy to take a win on any grant. Thank you. Thank you. This is Jackson. I'm sorry, that's just fair. So I have a question about the exceptions again, so in your interchange with just this cabinet, just now you were talking about it as a closed set of exceptions. And said that way, it sounds like exceptions that people had in mind at the time of the ratification, but that we're not explicit in the amendment.

But I took your brief to be arguing that subject to the jurisdiction thereof is the language in the 14th amendment that refers to those exceptions. Am I right? That's right. It describes them. It describes them.

And would you say this goes back to a question that just as courses asked general sour, our relationship to the Indian tribes is different today.

Let's put aside Section 1401 is in tribal Indian born on a reservation today on tribal land, a natural born citizen under the 14th amendment.

“Under the 14th amendment, no, of course Congress has provided for citizenship for all tribal members in the--”

Correct. By statute. And so is that because what subject to the jurisdiction of mat when you say closed set of exceptions, it means that the jurisdiction as it existed at the time of the 14th amendment is still the jurisdiction today. To be-- let me just be a little bit clear. Just as Kevin asked you if we could create new categories by analogy. So there may be other sorts of people who were present here to whom this subject to the jurisdiction in the same way that we were talking about, you know, the bubbles around ambassadors or the soil of occupied territory or the soil of tribal land.

Perhaps those new carve outs could exist by analogy today, like if the United States carved out some portion of some state and suspended it from its jurisdiction. Wouldn't the principle still apply?

No, Justice Barrett for two reasons. The first is again that there is a closed set.

But why is it closed? The language doesn't say it's closed. We know it's closed because Congress is the very purpose of the citizenship clause was to foreclose new exceptions. That's clear from the debates. And I would say that the language describes a closed set as well, because you can't imagine another situation.

“The government's trying to make us imagine another situation, right?”

They say, look, what if Congress in order to do an end run in order to change the meaning of 14th amendment as to unauthorized immigrants children? Congress can say, we are not going to exercise jurisdiction. Well, not quite because it's redefining jurisdiction. It's not quite analogous, right? Because the governments don't domicile theory is a little bit different than the use solely theory, right?

Sure, that's right. I'm just saying that in the second step of their argument as to undocumented immigrants,

where they have to get around the fact that undocumented immigrants by and large are domiciled in the United States are trying to say, look, we're going to manipulate the law either to define domicile or to carve out to just wave a magic wand and say these babies are not subject to the jurisdiction of the United States. There's still a missing factor under that original meaning of the 14th amendment. And that's that there is another sovereign who can exercise jurisdiction over this person, even though they're in the United States.

And this gets me back to a question you asked just to say, you know, the difference between an ordinary non-ambassitor for a national and everyone who subject to one of those jurisdictions is that even if, if you take the government's argument and say a foreign national is subject to that their country of nationalities jurisdiction in the United States is actually not true. If I'm a French national in the United States, France cannot come into the United States arrest me and try me for a crime under French law.

“And that's what sets ordinary foreign nationals apart from them.”

I mean, I understand that wasn't quite the hypothetical. I understand that. Let me just ask you, no, that's okay. Let me just ask you one last question about Indians. So I gather what you're saying is that Congress cannot expand the set of will call them exceptions, right? But you're saying it can't contract them either, and that was the Indian example. So what if, again, putting aside Section 1401, what if our relationship with tribal Indians has changed so much that we would say no Indians really are fully subject to the jurisdiction of the United States in the way any other, you know, natural born citizen is.

You're saying that that doesn't change the constitutional status of Indian citizenship. Let me be clear, what I'm saying is that the meaning of the 14th Amendment is we have to go with the original public meaning and obviously at the, at the very time that the framers were, you know, thinking about the 14th Amendment at the time of ratification that relationship between the United States and tribal nations was in flux, right? The government has made various arguments about Congress's authority, but the way the framers thought about it and the way that one can arc describes it is that there was a unique constitutional status unlike any other relationship between sovereigns and all the world between the United States and the Indian tribes.

The Jackson.

So I want to understand how you are responding to the government's argument that because temporary visitors and undocumented immigrants are still governed by their home countries.

In the government's take on this, you can't have two, you can have allegiance to two different sovereigns. Those groups can't have the requisite allegiance to be subject to the United States for the purpose of the 14th Amendment.

“That's what I hear the government saying, but I do think that that seems to rest on a different understanding of allegiance than what was in the English common law.”

When we understand what the English common law thought about allegiance, you can see that you can have allegiance to two different sovereigns at the same time.

This kind of goes back to Justice Lito's questions. I mean, I was thinking about this, and I think they are various sources that say this, but you can have, you obviously have permanent allegiance based on being born in whatever country you're from. That's what everybody recognizes. But you also have local allegiance when you are on the soil of this other sovereign. And I was thinking, you know, I'm I US citizen and visiting Japan.

And what it means is that, you know, if I steal someone's wallet in Japan, the Japanese authorities can't arrest me and prosecute me.

It's allegiance meaning can they control you as a matter of law. I can also rely on them if my wallet is stolen to, you know, under Japanese law, go and prosecute the person who has stolen it. So there's this relationship based on even though I'm a temporary traveler. I'm just on vacation in Japan. I'm still locally owing allegiance in that sense. Is that the right way to think about it? And if so, doesn't that explain why both temporary residents and undocumented people would have that kind of quote unquote allegiance just by virtue of being in the United States?

That's absolutely right Justice Jackson and that comports with the plain text of the 14th Amendment as it applies to everyone born in the United States other than those subject to the, to the exceptions that were baked in a close set.

“You owe natural allegiance as a US born citizen. If you want to look at the parents of those people and let's say the parents are foreign nationals, but not ambassadors.”

The parents owe temporary allegiance. Right. So the babies get the permanent allegiance piece of this and the parents get the local allegiance piece of this. So to the extent we're looking for allegiance, we have it. That's right. Thank you. Thank you council. We're bottle general seller. Thank you, Mr. Chief Justice. Just as Kevin, I'm turning to Lynch against Clark that you raised it and come up when I was talking about it. Keep in mind that we say that it's question at the time. It's question by a higher court in the same state, the state of New York and the London decision in 1860 specifically said that someone who's traveling or soldiering abroad, the born and a foreign comber who country is not born and foreign allegiance.

So obviously there is tension within that very state and that's what we can temporary commentators noted and I make a more fundamental point about that. Lynch is not interpreting the 14th Amendment because it predates it. So it's not looking at the language of the 14th Amendment. It's looking at what is the word citizen mean, for example, in the clause. So there's an anacronism to their reliance on it.

“And I think that turns to a point that Justice Leader emphasized, once you get to that language of the 1866 civil rights act where Congress said not subject to any foreign power.”

Clearly we are no longer dealing with the British conception of allegiance because Calvin's case and Blackstone say whether he's subject to another foreign power is irrelevant to whether or not you become a citizen. So again, the concession that I heard to be made that those two mean the same thing which this court held in general building contractors that the civil rights act as the same scope as as the says have clause in the 14th Amendment. Once you're saying not subject to any foreign power, Congress has clearly departed from the common law, the British conception of allegiance at the Monarchial conception of allegiance.

They have adopted the Republican conception of allegiance and there's all kinds of evidence going back to late 1700s, and that's the way they thought about it. And there was a reference, I think, in my friends presentation about the Marshall Woodworth treatis from the late 1890s. Just like Lynch against Tark, the language they quote is actually describing the case are the law, the status of the law, before the adoption of the 14th Amendment.

And that goes both before and after one. You see a similar consensus actually in the congressional debates, where whenever it comes up temporary sojourners, it's understood the context indicates it's clearly understood that those children are not citizens. And I would be there for finish where I began with drawing a stark contrast and turn back to the first question that Justice Thomas acted, that Republican Congress in 1866 had a very very clear understanding that the children of the newly freed slaves have the requisite allegiance to the United States.

This was all about overruling the grave injustice of Dred Scott and making sure that that allegiance was granted to the children of slaves. However, you have this contrast of a very very strong impressive consensus both in the original understanding in the congressional debates and curing over into commentators for 50 years afterwards that the children of temporary sojourners are not covered. And for those reasons we asked the court to reverse.

Thank you Council. General, the case is submitted.