In birthright citizenship case, Justice Department urges court to treat an old concept in a new way

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 attempt to narrow access to birthright citizenship is less than one month from argument. The Justice Department is urging the justices to side with Trump’s interpretation of the 14th Amendment’s citizenship clause by incorporating into it the legal concept of domicile, which traditionally refers to the place where a person lives and intends to continue living, even though it doesn’t appear in the constitutional provision’s text. In doing so, the Justice Department also attempts to transform domicile from a broad principle to one that is remarkably more restrictive.

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The birthright citizenship executive order, which Trump issued last January, claims that the 14th Amendment grants citizenship at birth to children depending on the citizenship or immigration status of their parents. According to the order, children born in the United States are not U.S. citizens if, at the time of the child’s birth, their father was neither a U.S. citizen nor lawful permanent resident and their mother was living in the United States without the federal government’s authorization or with permission to live here temporarily. The justices are scheduled to hear arguments about the executive order’s legality on April 1 in Trump v. Barbara.

The 14th Amendment citizenship clause provides citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The clause doesn’t use the term “domicile.” Despite that, the solicitor general, which represents the federal government in Supreme Court cases, argues that the clause nonetheless incorporates a stringent version of domicile that would grant citizenship to children only if, at the time of the child’s birth, their parents had legal permission to live in the country permanently and in fact did so. The court’s 1898 decision in United States v. Wong Kim Ark, its leading case about the citizenship clause, “mentioned domicile 22 times in its opinion,” the solicitor general’s brief explains. Those repeated references “would have been inexplicable if domicile were irrelevant to citizenship,” the solicitor general adds.

Lawyers representing the two babies who are challenging Trump’s order don’t dispute that Wong Kim Ark mentions domicile, but they disagree about what the term means and its significance to the case’s outcome. To create a legally recognized domicile, a person must simply create a “residence with intent to indefinitely remain,” they argue. But more importantly, in their view, “Wong Kim Ark never suggested that parental domicile was necessary, just that it was more than sufficient in Mr. Wong’s case.”

Since the citizenship clause doesn’t mention domicile, the solicitor general argues that it is implied in the constitutional text’s reference to residence. According to the 14th Amendment, everyone who satisfies the location and jurisdiction requirements are “citizens of the United States and of the States wherein they reside.” To close the gap between the word reside, which does appear in the constitutional text, and domicile, which doesn’t, the solicitor general explains “‘residence’ means ‘domicile,’” citing an 1878 decision Robertson v. Cease. Except that case isn’t about birthright citizenship at all. Instead, it concerns federal courts’ authority to decide certain civil lawsuits. Incorporating a concept from one area of law to another isn’t necessarily fatal, but it does stretch the decision’s relevance.

(The solicitor general also doesn’t do itself any favors by illustrating sloppy lawyering: the government cites to page 659 of the Robertson decision, but the opinion ends on page 651 of that year’s official volume in which Supreme Court decisions were published. No lawyer wants to leave it to any judge to guess about what part of a case they’re referring to.)

If the justices agree with the government that the citizenship clause requires domicile despite the term not appearing in the Constitution and the solicitor general’s obvious gaff, they will then have to decide what the term means. Though the solicitor general doesn’t provide a straightforward definition of domicile, it does identify two criteria: the location where a person has created their “permanent home and place of habitation” and done so lawfully. Children born to migrants who are in the United States temporarily “are domiciled elsewhere,” the government argues. Likewise, children born to unauthorized migrants are too because their parents “lack the legal capacity to form a domicile in the United States.”

The problem with the government’s definition of domicile is that courts have long treated it much more broadly than the government claims. In the decision in which the Supreme Court defines domicile as a person’s “permanent home and place of habitation,” the 1983 case of Martinez v. Bynum, the court added in the very next sentence that “[i]t is the place to which, whenever he is absent, he has the intention of returning.” Martinez doesn’t mention anything about legal capacity, instead prioritizing the person’s own plans. Without the concern for the government’s permission, the Martinez decision’s version of domicile is broader than what the solicitor general favors.

Beyond its broad description of domicile, Martinez offers the Trump administration little value because the majority opinion cautions against making much of its passing discussion to the law of domicile. “Contrary to the suggestion in the dissent, we have said nothing about domicile,” Justice Lewis Powell wrote on behalf of the majority. Rather, Powell and the majority of his colleagues seem to have thought Martinez was a case about a state’s power to limit attendance in its public schools to state residents. They explained the meaning of domicile only to contrast it with the “far more generous” residence requirement for tuition-free enrollment in public schools that they were grappling with.

Ironically, Martinez involved a child, Roberto Morales, who was born in the Texas border city of McAllen to parents who were Mexican citizens living in in the Mexican border city of Reynosa, Tamaulipas. And none of the justices doubted his U.S. citizenship. Instead, the majority stated that “Morales was born in 1969 in McAllen, Texas, and is thus a United States citizen by birth,” the concurrence described him as “a United States citizen whose parents are non-resident aliens,” and the dissent didn’t comment on his citizenship.

The solicitor general’s claim that domicile requires “legal capacity” also isn’t supported by the sources on which it relies. The first edition of an influential legal guide that the solicitor general quotes, the Restatement of Conflict of Laws, explains, that, to change domicile, a “legally capable” person “must establish a dwelling-place with the intention of making it his home.” The guide’s second edition, which the solicitor general also quotes, repeats these requirements, as does a third edition, currently in draft form, that the solicitor general does not mention.

In addition, the examples in the Restatement suggest that legal capacity has nothing to do with immigration status. The first Restatement describes legal capability as a person’s “exercise of his own free will” and mentions a case in which a federal court concluded that a person who suffered from alcoholism was incapable of making certain choices. The guide’s second edition notes, as an example, that an eight-year-old child “may not acquire a domicil of choice since he lacks legal capacity to do so.” Unlike the Restatement’s first edition, the second edition lists multiple cases in which a court concluded that a person’s immigration status was irrelevant to their domicile. In one of the cases listed, Cabral v. State Board of Control, for example, a state court in California explained that “anyone having the legal capacity to contract may change his or her domicile,” including two people who entered the United States without the federal government’s permission.

The most recent draft of the Restatement also casts doubt on the solicitor general’s interpretation of legal capacity to change domicile. In an explanatory comment, the third edition’s authors write that “non-U.S. citizens who do not possess immigration status, who did not receive authorization to enter the United States, or who lack current authorization to reside in the United States can obtain domicile in a U.S. state.”

The solicitor general relies on another book, The Law of Domicil, written by the English lawyer Robert Phillimore, that also fails to support its constrained view of domicile. According to the solicitor general, Phillimore’s book, published in 1847, shows that in the 19th century “a person could not retain a domicile in a country from which he had been exiled or deported.” Phillimore makes no such claim. Instead, the page that the solicitor general cites describes the case of a person referenced only as “Mr. Bruce” who voluntarily left Scotland and moved to India to work for the East India Company. Bruce “was bound to reside in India, and could not reside elsewhere.” For that reason, his domicile was in India. But unlike Bruce, the migrants whose children stand to be affected by Trump’s executive order aren’t contractually required to live in any given place.

Finally, the solicitor general discusses a series of cases about tuition at public schools that further fail to support the government’s position that the only people who can establish domicile are U.S. citizens and permanent residents. While both are important, accessing public education is different than accessing citizenship. The Supreme Court has explained that there is no constitutional right to public education. By contrast, citizenship is protected by the 14th Amendment and can’t “be jeopardized any moment Congress decides to do so,” as the court explained in a 1967 decision about involuntary loss of citizenship. Allowing Congress to decide who is eligible for citizenship under the 14th Amendment, as the solicitor general urges by asking the justices to consider immigration-law restrictions, would seem to jeopardize citizenship as much as allowing Congress to strip it from people.

Even if the justices accepted the solicitor general’s invitation to permit Congress or state legislatures to impact access to citizenship, it would find that the court cases that the solicitor general cites don’t support the executive order’s sweeping claim that all temporary migrants are unable to establish domicile. In two decisions, both of which the solicitor general references, involving the same challenge to a 1973 University of Maryland policy concerning in-state tuition, the Supreme Court took the opposite position from the solicitor general. Federal immigration law permits some “nonimmigrant aliens to adopt the United States as their domicile,” the court explained in Elkins v. Moreno in 1978, using the formal term for migrants granted temporary authorization to enter the country. Four years later, when the same lawsuit returned to the court, the justices repeated this point, explaining that Congress allowed the migrants involved in the lawsuit “to enter the country on terms permitting the establishment of domicile in the United States.”

In defense of Trump’s birthright citizenship executive order, the solicitor general has reimagined the 14th Amendment. The solicitor general is urging the justices to define and incorporate a familiar concept, domicile, in an unfamiliar way and into a constitutional provision that does not mention it.