Misusing history to limit birthright citizenship

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

President  Donald Trump’s executive order limiting birthright citizenship is back before the Supreme Court. Unlike the last time that challenges to the policy reached the justices – when they focused on a procedural issue – the Justice Department is now asking the court to side squarely with the president’s interpretation of the 14th Amendment. To support the president’s view that the Constitution’s citizenship clause always required consideration of a parent’s citizenship or immigration status, the Justice Department points to a variety of 19th-century sources, most prominently work by Justice Joseph Story, who is among the court’s most revered members. But a close reading of the writings by Story that the government cites reveals that its present-day argument misses key nuance from the past.

The background

On his first day back in the White House, Trump issued an executive order directing executive branch agencies to deny U.S. citizenship to children born in the United States based on the citizenship or immigration status of their parents. Specifically, under the order, government agencies must deny recognition as a U.S. citizen to anyone born in the United States to a father who, at the time of the child’s birth, is neither a U.S. citizen nor lawful permanent resident and a mother who was living in the country without the federal government’s authorization or with permission to live in the United States temporarily. This would include children born to mothers who enter the United States clandestinely or who enter with the government’s permission but remain after their permission expires. It also includes children whose mothers are living in the United States lawfully as students or high-skilled professionals, as well as under humanitarian immigration options. The order would apply only to people born on or after February 20, 2025.

Multiple rounds of litigation have blocked officials from implementing the president’s birthright citizenship directive. After various federal district courts blocked officials from preparing to deny children U.S. citizenship according to the terms of the president’s directive, the Supreme Court stepped in at the Justice Department’s request. In July, the court issued a ruling barring district courts from issuing nationwide implementation pauses called universal injunctions. Since then, the legal challenges to the president’s order have focused on whether it conflicts with the 14th Amendment and a federal law that Congress enacted in 1952. Every court to consider the question has sided with the litigants challenging Trump’s order.

The briefing

Last month, the Justice Department asked the Supreme Court to weigh in on the legality of Trump’s order. In briefs filed in two cases, the government urges the court to review decisions by the U.S. Court of Appeals for the 9th Circuit in Washington v. Trump and the U.S. District Court for the District of New Hampshire in Barbara v. Trump. Both courts have blocked the administration from implementing Trump’s order after having concluded that it violates longstanding federal law, most importantly the Supreme Court’s 1898 interpretation of the citizenship clause in United States v. Wong Kim Ark. The challengers’ responses have not yet been filed, but the justices are likely to announce by mid-January whether they will hear the Justice Department’s request to add this case to its merits docket.

In largely identical petitions, the government argues that the president’s executive order merely seeks to implement the Constitution’s birthright citizenship clause as it was originally intended. According to the Justice Department, the clause never extended U.S. citizenship to children described in the president’s executive order.

The clause, approved by Congress in 1866 and added to the Constitution in 1868, provides U.S. citizenship to everyone “born or naturalized in the United States, and subject to the jurisdiction thereof.” The clause’s reference to jurisdiction refers to “political jurisdiction or allegiance” which is established only by citizenship or “lawful domicile in the United States,” Solicitor General D. John Sauer contends in his petition seeking the Supreme Court’s intervention. “But in the 20th century, the Executive Branch came to misread the Clause as granting citizenship to nearly everyone born in the United States—even to children of temporarily present aliens or illegal aliens,” Sauer argues.

The use (and misuse) of Justice Story

To support the administration’s claim that Trump’s executive order merely seeks to enforce the clause’s original meaning, Sauer relies on multiple sources that provide a much more complicated assessment of jurisdiction than the government admits, including six citations to the influential associate justice of the Supreme Court Joseph Story. Sauer argues that “[a] substantial body of historical evidence confirms” Trump’s view of the citizenship clause, repeatedly referencing Story.

As an initial matter, Story is a curious source given that he died in 1845, more than 20 years before Congress drafted the 14th Amendment. But Sauer’s reliance on Story also reveals an important gap between the text and its meaning. Quoting a passage from Story’s 1834 book, Commentaries on the Conflict of Laws, Foreign and Domestic, Sauer contends that children born to parents who were in transit or temporarily in a country do not receive citizenship. While Sauer quotes correctly the words that Story used, he misreads Story’s claim. Story is clear that he is describing his view of what the law should be rather than making an uncontested claim about what it is. Indeed, in the very sentence that includes the passage that Sauer quotes, Story explains that the exclusion upon which Sauer relies “would seem to be” a “reasonable qualification,” but, as he notes in the following sentence, this qualification had not been “universally established.”

Sauer’s more troubling use of Story’s text centers on his central claim that the citizenship clause’s jurisdiction provision grants citizenship only to children born to parents who are domiciled in the United States at the moment of the child’s birth. Citing Story, Sauer contends that domicile means “lawful, permanent residence within a nation, with intent to remain.” But neither Story’s Commentaries nor the 1817 decision he wrote on behalf of his Supreme Court colleagues, both of which Sauer cites, support Sauer’s definition. Story devotes an entire chapter of his Commentaries to the legal meaning and effect of a person’s domicil. In that chapter, he defines “domicil” as “the place, where a person lives, or has his home.” It is the place “to which, whenever he is absent, he has the intention of returning.” Two pages later, Story reiterates that his definition of domicil consists of two parts: “first, residence; and, secondly, intention of making it the home of the party.”

Despite his extensive discussion of domicile, Story never hints at a requirement that a person’s residence in a location must comply with existing legal requirements as Sauer claims. Instead, Story adds that the domicile concept, as it existed in ancient Roman and Greek legal systems, required people to participate in civic life. Under Roman law, a person’s domicile was the place “where he buys, sells, and contracts, where he makes use of, and attends the forum, the public baths, and public shows; where he celebrates the holidays, and enjoys all municipal privileges.” Meanwhile, to the Greeks, domicile turned on living “in any place” as someone “whom the Greeks call … a neighbour, or person inhabiting near to a village,” Story wrote. Sauer’s petition fails to mention this historical foundation that informs Story’s analysis, which complicates the Trump administration’s simplistic understanding of the concept of one’s domicile.

Finally, unlike his detailed explanation of the domicile requirement in his Commentaries, Story offers only a passing description of it in the 1817 Supreme Court decision The Pizarro that Sauer quotes immediately following his own definition of the term. The decision, focused on an 18th century treaty with Spain, explains that a person domiciled in a particular country and “enjoying the protection of its sovereign” “is deemed a subject of that country.” Though Story, writing on behalf of a unanimous court, does not explain how a domicile develops, he articulates a broad version of allegiance, the concept that Sauer equates to political jurisdiction. “He owes allegiance to the country, while he resides in it — temporary, indeed, if he has not, by birth or naturalization, contracted a permanent allegiance,” Story wrote. The court does not discuss any requirement that residence be lawful. Nor does it suggest that temporary allegiance bars someone from being domiciled in a particular country. On the contrary, the Pizarro court simply comments that allegiance follows residence, including temporary residence.

The bottom line

With the single exception of its June victory at the Supreme Court on the universal injunction issue, the Trump administration has lost at every stage of every lawsuit in every court over the president’s birthright citizenship order. Turning again to the Supreme Court, the Justice Department argues that Trump’s order would merely restore the citizenship clause to “its original understanding and history.” But that 19th-century understanding and history, as a fuller review of one of Sauer’s primary sources reveals, are far more nuanced than the solicitor general would have the justices believe.