Trump v. Barbara

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 to 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 to the jurisdiction means only directed 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 of 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 clauses adoption, commentators recognize that the children of temporary visitors are not citizens. And 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 the legal 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 a whole generation of American citizens abroad with no meaningful ties to the United States. Welcome to the courts' questions.

“General Sauer, before we get into the broader national issues, would you start with a Dred Scott?”

Dred Scott was a case about state citizenship. It was a diversity case.

And of course, we know it, Chief Justice Chantani did with that. How does the citizenship clause respond specifically to Dred 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 and be 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. Maybe start by addressing Dred Scott as you alluded to the fact Dred Scott, you know, impose one of the worst injustices in the history of this court and had led to the outbreak of the Civil War. It's very clear in this court. And all this early cases interpreting before to the amendment said, you know, the one hervading purpose, the main object of the citizenship clause is to overrule Dred 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. If you 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 or sort of being subject, or merely subject to the laws, they're talking and they're thinking about it in those debates about allegiance.

Here, second question, if you look at the text of the clause, we believe it says, you know, born in the United States, born in the United States and studied the jurisdiction error of 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 1473 of Justice Stories commentaries was understood to mean domicile.

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 and public ships, tribal elites, enormous one that they were very focused on in the debates as well. But what I do is invite the courts 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 Kingsville, Maine, you have this indifisible 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 have adopted the Republican conception of allegiance. So it's from not subject to any foreign power, and then the debates, 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 Trumball statement that he quoted in 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, you use this completely subject to the political jurisdiction, not married 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 residents independently of any domiciliation independently of the taking of any oath of allegiance or 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 one Arx 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?”

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. 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, US laws, don't apply to Indians on Indian lands, correct?"

“I believe you look at the Rogers decision, for example, we sign 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 as to 1872 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, we'll 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 who's born in the US will be citizens?"

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.

That's a 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 present saying, "It's not covered by the clause, including for decades after one Kimark."”

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, were 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 ahead, in 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.

The government says, "Well, I can't be convicted under this because the microwave oven didn't exist at that time." And 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?”

I strongly agree with the way that you framed it, that there is a general principle that's a broad principle that's adopted the phrase 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. 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 have 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 sour 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 3 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 developed that was there in at the time of the 14th Amendment.”

Doesn't that right? We agree there's a principle there at the 14th Amendment. It is the jurisdiction means allegiance, the allegiance of a, in this 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 views of the Pizarro, it goes through the Cots of Fair in 1853, it comes right up to Fong. You we can't sing and allow out the blue that are decided shortly before Wong Kim Mark. So that's the principle that principle clearly applies here. I also respectfully say.

Yeah, and I guess Mr. General Sauer, you know, we're just a principle come from allegiance, domicile allegiance, I think, you point to a link in 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 that jurisdiction has many meanings, but you know the first meaning is like, if you're subject to jurisdiction, you're subject to the authority of.

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 framers mouth. So, for example, Senator Trumble said, "What does jurisdiction mean?" He means, subject to the jurisdiction. So, what does that mean? He says it means not only allegiance to anybody else. He is the principal of the Civil Rights Act of 1866, representative Bigum, who's the framer of the 14th Amendment, is asked, "What does it mean in the congressional 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 decided many, many examples where the congressional debates reflect that.

Then you refer to theuration of George Bancroff. That's one of probably 16 sources, but there's at least 13, counting that one in the 12 trees as we cite it, pages 26 to 28 of our brief. There's 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 Wong Kim Ark."

“If Domicile's the key-linchpin to your argument, I take it that it is, do we look at how Domicile's understood in 1868?”

What do we look at it and how it's understood today in context of the INA? The ageing 68, understanding, not aware of a strong difference between those.

Well, here's what I'm going with. 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, and we didn't really have laws like that. We did it 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 Wong Kim Ark on that point because Wong Kim Ark says here. Well, I'm not sure how much you want to rely on Wong Kim Ark. The state, there is a statement in there that says, so long as they are permitted to be here. So Wong Kim Ark, keep in mind that by the time they decide, not Wong Kim Ark in 1898. 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.

This is the second statement as well. And, but this isn't this court. 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 James, just as lead over earlier, which is that this concept jurisdiction.”

Some of the legions, some of the others might 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 have us focus on.

And, you know, what if was 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, and it's really the mother's domicile, I think that would matter. Well, but 1868 matters, you're telling us, so what's the answer? The 1868 sources talk about prints on, not aware of them drawing a distinction between mother or father, but they say that Domicile, the child, follows the domicile of the parents. We're going to determine Domicile. I mean, it would we use contemporary sources on what qualifies as Domicile in a state or 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 a lawful presence with the intent to remain permanently. 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 strong in the case I cited before. This is the circle back to Justice Kagan's point. It's striking that, in none of the debates, do we have parents discussed? 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.

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 the...

“I think Domicile is discussed. I mean, it's brought up in many...”

A Leeton's jurisdiction, complete jurisdiction. Well, I mean, here's just a few examples. Page 1679, the Congressional Record, President Johnson, Petos, the first version of the Civil Rights Act, and he says, "I can't sign this because it would extend alien... Since it is just the children of court, all Domiciled aliens and foreigners, even if not naturalized." I mean, you have all the other sources that we cited that say, "When a gun misses goes, it is a deeply rooted 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 discussing the Chinese exclusion. That's Domicile is the key concept that creates allegiance."

General, General, General, can you say... In your reply brief that the children of slaves who were brought here unlawfully, you know, 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. 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?”

I think 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 treated their presence as unlawful, in fact, quite the opposite. One of the immediate points, like a Mississippi statute, which probably is replicated throughout the south, before the Civil War, that says slaves in Mississippi, having indifisible domicile in Mississippi. In other words, even if they run away, if they get away, Mississippi says no, you still live here. Right? And so it would be astonishing, in other words, for the opponents of the 14th amendment to say, oh, you know, 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, you know, if they were to legal slave trade, once they were there by the law.

They were intent as 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 lawfulness for a different purpose, but they're here, their resident, let's take your assumption that they're not here unlawfully.

Let's say they don't have an intent to say, they want to escape and go back, the second they can, are they domicile?

“Under the 19th century law, I think this is the flip side of the hypothetical that we talked about earlier under the 19th century law, they are treated as domicile in the United States, so it would be astonishing.”

And the debates that they congressional for talk about, not this specific case, but they say, look, slaves who have enforced to come here, and it been here, are lawfully domiciled here. I mean, they don't use them the way, is domiciled, like they have the usual agents, they say, they don't have allegiance, once they've been forced to come here, they don't have allegiance, any foreigner, African, potentate, and therefore there. Generalite goes with that. >> I would apply to the human, the children of illegally trafficked people today, but the same reasoning apply? >> It would turn on whether the parents or 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. It's different from someone who say crosses the border unlawfully. >> I think you 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 citizen, that would turn based on the original public media of the 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 the certain class of people, legal entrances, so forth, cannot lawfully have lack of legal capacity to form a legally binding dog.

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?

>> 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'm not sure 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 in 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're 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 9 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.

“And here's a fact about it that I think is striking.”

The report is early as 2015 that based on Chinese media reports, there are 500, 500 birth tours of companies in the people's Republic of China who's what 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. >> I think it's, I quote with Justice Clea said in his hometown to sad where they had, where they were like their 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 wasn't 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 plain right away from having a child as a US citizen.

>> Well, it's a new world, it's 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 quote that in our brief. >> Thank you, Justice Thomas, any further?

>> General, you're getting a lot of questions about immigration and they argued back, of course, 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 the slaughterhouse cases 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.

“That's what they focus on. We draw analogy to that, too, the issue of temporary sewage earners, and then, but there are mentions of temporary sewage earning multiple places in the congressional debates and all of those quotes going on our direction.”

>> And there was just a sort of my a lot of 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 followed in the rule of birthright citizenship.

Does this legal? 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.

But we have an unusual situation here because our immigration laws have been in effectively 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, the legal point is if you look at those cases, for example, Carson gets read, park against bar, this court's decision in Hellkins and Tologets, Marina, 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 it is a strong argument. And I point out obviously for, you know, for, 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, well, one, our Kim Ark 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 one Kim Ark.

Well, they're one Kim Ark's parents were domiciled in the US, but they owe loyalty to China. They eventually returned to China. So they didn't have a primary allegiance to 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 over to roll on Kim Ark. But we were only one Kim Ark and much of the reasoning. And then asked for those later cases starting in 1966 for the court makes sort of, you know, unreasoned references.

We can top you loose the reference, the respondent on lawfully overstayed her visa and gave birth to a child here. The court Holland II wrote, "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 drive by jurisdiction or rolling where there's a simple statement that's not debated. There's no further analysis of it. There's really an assumption there and we think that similar to case of a court justice assumes jurisdiction without justice.

And we ruled in trend that Indians could not become citizens. The government then after began to unnaturalize many Indians who had been sworn in as citizens. You asked us to concentrate only on the perspective nature of the citizen's order. But 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. As we ask the court confines, it's rolling to prospective relief only, which I didn't say.

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

Citizenship and the court said to supplies prospectively only and we think that's the important course here.

But that's not what we did in trend.

“We think that 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. So there's 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 come 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 order to change, what I think people have thought the rule was for more than a century.

“I think two points are 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 emphasizing their amigies.”

Which is, in 1921, Richard Flornoi, who becomes a senior state department official in the Roosevelt administration, pushes their theory as the temporary soldiers, writes a lot of theoretical. In 1921, where he says, "I think the children of temporary visitors should be citizens, but he admits that is not the understanding one Kim Ark. He admits one Kim Ark did not hold that." 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 traces 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. He adopted that as the policy of the Roosevelt administration. So there are Kim 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 the 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 the 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 Trumball says, "I said not subject to any foreign power. I wanted to say, burning the United States, and, you know, only the 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,

whom we have no right to make citizens." So Senator Trumball says, "The reason I haven't adopted the language in meeting that they say should be packed into these provisions is that everybody knows that the children of temporary visitors should not be citizens." Thank you, General. >> Does this question? >> Just to follow up on that point, General, one interesting counterpoint about the understanding of one Kim Ark that followed with respect to temporary soldiers. I take you, well taken points, but there was, of course, John Marshall, Harlem, the great dissenter who descended in one Kim Ark, and later gave a bunch of lectures.

Now back in England, is that child, this is the United States born of the jurisdiction there of 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."

“Now, I'm sure that was tongue-in-cheek, but now, 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 twelve uncontradited treatises that say the opposite, that is not what,

one Kim Ark needs, and that's not the meaning of the commas, but also, I make a more fundamental point when you're looking at one Kim Ark. One of the dissent has this dominant theme that, really, Tom Thien, 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. But at the very end, they said the single question we 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 citizenship. I'm not statute. I'm not statute. I decide the statute. You think they're birthright citizens? I think the clear understanding that everybody agrees and the congressional debates is that the children of tribal Indians are not birthright citizens.

“I understand that's what they 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. So a tribal Indian, for example, or, you know, some allegiance to born today, birthright citizens.

I think so on our test, if they're roughly domiciled here. I have to think that through it.

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 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 1942 to perhaps have a different meaning than the constitution?”

We don't think that's the best interpretation. I'll give two reasons. One is, it would be very surprising if a statute that says exactly the constitutional phrase under the jurisdiction in the route where 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 ossified are limited to the preceded discourse, preceded to 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 frayed context, the natural interpretation is, say, this means this reflects the objective meaning of the constitution.

And the objective meaning of the constitution is as a original 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. 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. Yeah, we think that the statute, the Constitution means the same thing if the court disagrees.

I was, we prefer in adverse ruling the court's going to do that on a statutory basis on a constitution basis. But you've just disavowed that in your responses to me by saying that that's not available option. Right, 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 would probably be to roll a 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 heard.

I think the analogy I just heard referenced. Thank you. This is Capitol. 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.

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're intended and they did mean the same thing. And that's powerfully reinforced by the congressional debates. Well, 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, was ambiguous. And so they switched to the affirmative statement as opposed to the negative statement.

The affirmative statement, the affirmative statement, subject to the jurisdiction there are, but there's a suppressed statement to the congressional record, essentially.

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 jurisdiction there are, as opposed to not subject to any foreign power. And again, there's a deep concern and 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 Kim Mark, one might have expected Congress to use a different phrase, if it wanted to try to disagree with one Kim 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 Kim Mark meant that. And 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, and then after Wong Kim Mark on the specific question of the children of temporary visitors.

And it's really not until, again, they're author in 1921 is saying, hey, the other side is a consensus. I'm sorry. But there's executive branch interpretations and others. And if, if you're in Congress in 1940 and 1952 and you want to limit the scope of one Kim 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, 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 inferences that Congress is codifying, which was consciously doing in 1941 pulling all the naturalization rules and immigration rules together into one statute. You go to one place, 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 standards, just saying, hey, the baseline is the constitution says, and we quantify that and then we move on to the new categories.

But 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. Is that give 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 grant 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 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, is that relevant at all?”

The great question I'm thinking about for the first time, I assume it would be governed by the Congress and proportionality to us 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 with that. 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 precedent based on American history.

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 side in their amikis 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 on the world hasn't ended there. Other side, last one, the other side relies heavily, of course, on one Kim 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 Kim Mark, the holding is relates to domiciled aliens, and so we strongly agree with the holding. We think domicile was the touchstone, and we think that's not a coincidence for the reason that I may be speculated a little bit if I talk in Justice Gorsuch about, you know, how the descent raises this, and then the majority is like, we're putting domicile in there, so we know that the absurd conclusion that they say would come from this isn't there.

Also, domicile has kind of the sort of 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 talk about domicile and Yakuo 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 Wong Kim 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 Roniist Dicta, and don't apply to this brand new situation that was not decided in Wong Kim Mark.

Thank you. That's the spirit.

So General Sarah Lin is zoom out a little bit and think about, you solely and you sang Guinness, so as I understand it at the time of the 14th amendment, those were the two dominant approaches, you solely the English common law, roughly following the soil, you sang Guinness, roughly citizenship following the parents. Now, you solely 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 of parents citizens. But you sang 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, and you acknowledge that you sang Guinness and citing Vatel.”

It would have made sense in some ways for them to say, okay, we're going to follow if they wanted to accomplish what you're saying they wanted to accomplish. You could say, well, we're going to follow you sang 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 that you solely 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 review of both the traditional use soluble and a narrow review of the use sang 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 say, I think the right way to conceptualize it is much more, it is a modified use solely 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.”

And relations of allegiance, allegiance is the word in Calvin's case. But they don't focus on the parents, it's the child, and your approach focuses on the parents allegiance. Let me point out that there are two criteria. One is birth on the soil, and the other is allegiance or allegiance. We have as birth on the soil remains the same, right? And so they are, and that's why so much a warm kemarque is actually we agree with, because they are adopting a modified British rule. They are not going the French rule, you know, that the tell talks about where it's like who's this citizen that had to be done by statute, as you pointed out, which it was in 1401.

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 saw there, this is the same group of Congress and Republican Congressmen, and they say things like the US Constitution itself is proof that black stone's theory of allegiance was not accepted.

“So they accept birth on 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 you 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 as the benefit of being addressed in 1401, if we're talks about that.

Yeah, yeah, yeah, yeah, yeah, but what about the constitution?

Under the constitution, it's domicile's a constitutional standard in all kinds of other situations. Well, and it's hard. Well, yeah, in 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 Guinness, 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 a US citizen because the parent didn't have an intent to stay?”

I'd say, make two points one, practical, one league of 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 of all the agencies did after this court in Kostos said the agency could 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, Schumer's 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. That's what allegiance meant.

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 common, when the 14th Amendment was ratified, the framers weren't just incorporating what we had previously said it meant. Page 572, the Congressional Record, directly addresses this.

In 14th Amendment, Senator Trumball 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.

So, 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 Fesondon and Wade, where the same concept comes up and it becomes clear, at least from Senator Wade's perspective, that's wrong. So, Fesondon, and I'm not sure whether these are senators, I apologize. Fesondon 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 just 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 context, that exchange strongly supports us.

If you look at it in context, Senator Wade is introduced a version that says only both on U.S. soil and doesn't have any allegiance or jurisdictional element to it.

“And so Senator Fesondon 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 be a 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 us. 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 and not the child as would the born in the United States. You know, 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?”

And 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 newborns 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. 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 say, how does come in 1930?”

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? It's not a quick allegiance, it's not a question of subjective loyalty. Okay.

Oh, it is something you owe. It's a reciprocal relationship between the citizen, whether they wanted or not, they have that allegiance.

And I think it's powerful.

On the basis of what? Domiciled. I mean, that's what it says. Because if 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 for akin to citizens.

All right, just quickly because I'm mindful of the time. What do you do with one, one, ten, arts statement that birthright citizenship is applying,

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 quoted for page 693.”

If that opinion goes on to say, not citizen terms on that, but the duty of obedience to our laws, it doesn't take a further step at that point and say, therefore, if you have temporary and local leisure citizen, and immediately before that, you have that page 693 summary of the court's holding, where it says, you want to come out. Well, I can incorporate the domicile requirement. That is the holding. It's definitely clearly expressed in the holding.

All right. One final thing, perspective. If 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?

“How 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 essay guidance that's cited in our brief.

What essay says is there's currently a system where, for example, secure social security numbers are generated based on the first certificate.

They say this can still be for the vast majority of incidents completely transparent. You will still get a-- because the transparent, I'm just talking about the particular. Because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So we bring pregnant women in for depositions.

What are we doing to figure this out? No, as I pointed out earlier, the executive order turns on lawfulness of stats. 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 a opportunity. There's a apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States.

Absolutely not. The opposite is true.

“They're opportunity to dispute if they think they were wrongly denied, which only happened in tiny minority cases.”

This is 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. It says, "Look, a social security number. Non-citizens can have them if they work authorization."

So it doesn't prove 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 there's no different to the vast majority of birthing parents. Thank you.

Thank you, council. Ms. Wong? Mr. Keith 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 versus 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. Authorities including Lincoln's attorney general and Kent's commentaries embraced Lynch, and Kent specifically talked about temporary sewjourners children being US citizens.

Just as 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 our nation. It comes from text and history. It is workable and it prevents manipulation.

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, just Thomas, how you count them.

And what is the underlying rule of law that you used to connect these five exceptions? Sure. So as I just said, all of the exceptions involve situations where that US foreign 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. 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's jurisdiction.

To answer just its merits question to my friend.

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

We've heard a lot of talk about Wong Kim Mark. You dismiss the use of the word "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, Mr. 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 consturing the 14th amendment in the 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, at 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 to 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.

The existing 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.”

I mean, everything you say strikes me as, yeah, that's the way I read it too, 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? Well, I think, again, those were the stipulated facts in the case, and it's clear we have textual evidence in the majority of opinion that they were simply saying this is an off-oresuary application of that controlling rule that comes from the English common law.

Justice Gray writes, again, after setting out the English common law rule and the exceptions, but the single additional exception for children of numbers of Indian tribes, that the amendment and 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 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 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, namely whether a child born in the United States, a parents of Chinese descent who at the time of his birth or subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are they occurring on business?" And the United States's 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." So why 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?"

Well, it's just something irrelevant that he wanted to throw in. It's like whether a child born in the United States, 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 Lido, 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 one remark has binding presidential effect.

“Even if you think that one Kim Ark 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.”

One Kim Ark 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. That is long under at. What do we do with the fact that after one Kim Ark, 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 in open question, even if one of them wasn't John Marshall Harlan.

I liked 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 one Kim Ark expressly, if they indicated one Kim. If it was in how the legal community understood what happened in one Kim Ark seems to me, it's a mess. So maybe you can persuade me otherwise.

“I think I can, Justice Gorsuch, first, as to the post one Kim Ark authorities, the government sites, each one of them is inconsistent with one Kim Ark's reasoning or doesn't mention it at all.”

Most of them have very little reasoning at all. And in contrast, what we have on our side, post one Kim Ark, is numerous federal court decisions around the time of one Kim Ark between ratification and one Kim Ark that said that domicile is not relevant. They cited Lynch versus Clark, which again was about the daughter of temporary sojourners. We have the sixth edition of Kent, which was cited in one Kim Ark, and of course was then cited after one Kim Ark was decided by many authorities, again discussing temporary sojourners.

Anyone who wanted to know what the law of citizenship was under the 14th Amendment, after one Kim Ark would go to the sixth edition of Kent, where he says in that footnote on page 38, that the rule was Lynch versus Clark and temporary sojourners children are U.S. citizens.

We have 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 were unwelcome."

If they are children, born in the United States, are citizens.

“We have an 1896, so a couple years before Bong Kim Ark, but an 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 law review 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 it is this. One Kim Ark 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.

“And 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 hardly 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 one Kim Ark was decided.

I don't think that's a plausible explanation for why Domicile is mentioned in one Kim Ark 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.

“It's that explanation would be inconsistent. Isn't that explanation?”

I take Justice Alito'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 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, 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, 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.

Or in Justice Alito'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 Wang Kim-Arch, you'll see that even though the parties had stipulated in the district court that Wang Kim-Arch's parents were Domicile in the United States, when that 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 that was common among people who opposed immigration by Chinese nationals to the United States.

There was a common view that Chinese people were inherently temporary, sojourners in the country, and so I do think it's possible Justice Alito and Justice Jackson that he was trying to dispel that notion and tell the government. That 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.

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-solvants, 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 in Xparte Queeren, 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, Xparte Queeren, 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.

“Sure, 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 who are 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 Amika's 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...

So what about Indians? What about the Indian who's off the reservation or born off of the reservation? So to start with the basics, the referred to the Indian tribal exception just to use the term of art. The Indian tribal exception of course as Wilkins tells us comes from the constitutionally unique status of Indian tribes. In the Indian commerce clause, we know that tribes are treated as basically quasi sovereign nations. 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 start with 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?

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, they're essentially, I think he says Justice Grace 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 symbol of 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 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. 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 Wonky Marx says, Elk versus Wilkins has no bearing on the question of foreign nationals.”

This one, on the earlier answer you gave to Justice Gorsuch on the temporary soldier on earth's cases, those were distinct cases, correct, where the parents had come to the US, and didn't want to give citizenship to their kids, took them out immediately, correct? I'm sorry, Justice Sonomaire, I'm not sure which cases you're referring to. All right, that we can look at. And Ms. Wang, 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 upwards are obviously different.

What Wonky Marx 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. They wanted to capture the common law exceptions 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 Gorsuch described it in his majority opinion in Wonky Marx, 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 1866 civil rights act was reenacted after the adoption of the 14th Amendment and remained in place until 1940. Sure, the framers were trying to do the same thing with the language in both. Okay, so then I think we can turn to the language of the 1866 civil rights act because it's more straightforward, subject to the jurisdiction. There are the puzzle wrapped in a negative and wrapped in a mystery, but not subject to any foreign power is pretty straightforward.

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 as a leader, 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 another country considers U.S.

“citizen, then lawful permanent resident, all foreign national, ordinary public, ordinary public meaning of that would certainly encompass that boy would it not?”

Just as a leader, 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 sure seems like that makes them subject to a foreign power. But again, Justice Leader, that would have meant that the children of Irish, Italian and other immigrants, which Wang Kim Ark refers to, and the framers referred 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-Sanguen as 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'm deflated to some.

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-coated 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 one Kim Ark treats what was said in the slaughterhouse case, cases.”

Should we apply that same wool to one Kim Ark itself? One 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 today in which common law, in construing the 14th Amendment. Thank you counsel, Justice Thomas. Anything further, Justice Lito?

Well, 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 can see, far outside the birth rates of citizenship wool, 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, explaining Indians not taxed. And those ineligible under common law are citizens of the United States, and of the state wherein they reside.

Or they could just set all persons born in naturalized in the United States, explaining 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 adopt the general rule. So, what's the explanation?”

I would say the one can mark tells us what the explanation is that the framers of the 14th Amendment after overwriting President Johnson's veto wanted to adopt a universal rule with the closed set of exceptions.

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 mayor.

“This fine. I don't have not quite understood the solicitor generous argument that lawful domicile somehow changes the U.S. is”

a dominion over a person or allegiance, even in just as allitos 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,

that's sort of 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. So it was undisputed there that Wong Kim Ark's parents owed loyalty to China. Correct? Sure. Yes. What I'm saying is even if you become a permanent resident, you're not a U.S. citizen. So you're back to the military. Loyalty still remains with your citizenship country, wherever you came from.

That's right, just to say to my, 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. borne 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 borne in the territory of the sovereign, oh natural allegiance. It was a temporary limited three limited exception precisely. I think I'd like to take you back to the first question that Justice Alito 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 U.S. government argues the case this way, but let's put the U.S. governments arguments aside and just ask something like, well, everything that you're saying would suggest an answer.

To the question of the children of people who are temporarily in the U.S., 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 Alito 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.

In addition to this, you know, notable exchange between Senator and Cowan, Senator Cowan, and Senator Connais, where Cowan says, "If we have this citizenship clause as part of the Constitution, we are going to encourage these gypsy," what he called Gypsy's, Roma, in Pennsylvania, whom he characterized as invaders, trespassers and lawbreakers, will encourage them to come into our country because there's children and least citizens.

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 birth, 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 birth rights 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 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? This is Kavanaugh.

“On Lynch Fee Clark, which you cite several times in the brief in today, which I appreciate. The government's responses that this decision was questioned at the time and went 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 Trumball, I'm sorry, Senator Lawrence talks about the great case of Lynch versus Clark, where it was conclusively shown that all children born here are citizens without any regard to the political condition or allegiance of their parents. Of course, they discussed the children of temporary sojourners elsewhere without mentioning Lynch.

Sure 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.

“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.”

If it said that I think our history would be a little different, and I think the text you put aside the history, because that's speculation, the text would be quite a different. 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.

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, in fact, the government points to this quote. So there are 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.

That's not the text, so I guess we don't need to deal with that. Sure, and that brings me back 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, non citizens. And that's clearly not what the framers were doing. Just as the lead on 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?

This comes up in the second amendment, now comes up in free speech law, and how do we think about whether it's possible that there could be an additional exception based on modern circumstances, reasoning by analogy to the exceptions that exist. I'm thinking in particular about the non citizens on lawfully in the country, not the temporary part, but the non citizens on lawfully in the country.

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 to 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.”

Wong 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 exception.

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 for 135 to zero in the house 100 to zero in the Senate and said we're carving out a new biology to the existing categories. The 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 doesn't ship 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.”

That could be a 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 affirmed. That's that. And then last question, 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. This is fair. So I have a question about the exceptions again. So in your interchange with just as 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, and then it was at the time that the 14th amendment was ratified. 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 --

The by statute, by statute. And so is that because what subject to the jurisdiction of mat when you say closed set of exceptions?

So to be -- let me just be a little bit clearer. You know, 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. 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 principal 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's 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 the 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 government's domicile theory is a little bit different than they 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, they're trying to say, look, we're going to manipulate the law either to define domicile or to carve out to wave a magic wand and say these babies are not subject to the jurisdiction of the United States. They're 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's subject to one of those jurisdictions is that even if you take the government's argument and say,

a foreign national is subject to their country of nationality's jurisdiction in the United States. This 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 that.”

Well, 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 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 get with the original public meaning. And obviously, at the, 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.

“And that is what gave rise to the pre-existing exclusion of Indian tribe tribal members from US citizenship, and that's what the 14th Amendment captures.”

Does 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. And in the government's take on this, you can't have two, you can have allegiance to two different sovereigns.

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 Alito's questions.

“I was thinking about this, and I think they're 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 U.S. 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, 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 U.S. 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. Rebuddle general, sir.

Thank you, Mr. Chief Justice. Justice Kevin, turning to lynch against Clark that that you raised it and come up when I was talking about it. Keep in mind that we said 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 in a foreign company country is not born in foreign allegiance.

“So obviously there is attention 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, you know, what is the word citizen mean, for example, in the clause. So there's an anachronism to their reliance on it. And I think that turns to a point that Justice Leader emphasizes 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 in Blackstone say whether it'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 the citizenship clause of 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 Monarchial conception of allegiance. They have adopted the Republican conception of allegiance. And there's all kinds of evidence going back to late 70 hundreds, and that's the way they thought about it.

There was a reference I think in my friend's presentation about the Marshall Woodworth treatis from the late 1890s. That treat is also just like Lynch against Tark, the language they could actually describe the case are the law, the status of the law, before the adoption of the 14th Amendment. But if you actually look at the creases, we side again, I mean, you know, warden Morris, just a Samuel Miller of this court, lesser black hall, Winchester Taylor, West Lake Balaugh. There's this consensus going from the time of the 14th Amendment onward, they're looking at the specific question of temporary temporarily present individuals in the jurisdiction, all those sources say their 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 Thread Scott and making sure that 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, 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.

First. Thank you, Council. General, the case is submitting.