This is the second in a series of four articles about the many pending suits that challenge the legality of President Donald Trump’s Executive Order No. 14160 (the “Citizenship Order”). In that Order, Trump declares that two categories of persons born in the United States to foreign nationals are not U.S. citizens by virtue of their birth, and instructs federal officials not to treat them as citizens, at least if they were or will be born after February 19, 2025. (In an earlier post I briefly discuss the implications for individuals born before that date.)
A couple of weeks ago, I published a long post about the Supreme Court’s recent decision in Trump v. CASA, Inc., in which I assessed (among other things) how the Court’s decision might affect the nonsubstantive questions that remain open and contested in the lower court cases. The remaining posts in this series, beginning with this one, are about the substantive merits of the challenges to the Trump Citizenship Order. Of course, by now many scholars and lawyers have written a great deal about this issue. I don’t intend to rehash all of that here. Instead, my focus in this and the remaining installments of this series is on the Department of Justice’s arguments in support of the Trump Citizenship Order in the courts of appeals, because those arguments are likely to shape how the Supreme Court approaches the question when it eventually considers the merits.
Recently, in Washington v. Trump, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court to opine on the legality of Trump’s attempted redefinition of birthright citizenship. Like every other court (or Supreme Court Justice) to have addressed the merits in the past few months, the Ninth Circuit panel concluded that the purported limits on birthright citizenship in the Trump Citizenship Order are likely to be inconsistent with the Citizenship Clause found in Section 1 of the Fourteenth Amendment. The panel also held that the Citizenship Order likely violates the statutory provision establishing birthright citizenship, 8 U.S.C. § 1401. (These holdings, like those of other courts, were framed in terms of the “likelihood” of unlawfulness because they were issued at a preliminary stage in the litigation. None of the courts, however, has concluded that it’s a close question and the issue has been fully briefed; in other words, “likelihood” is a virtual certainty here.)
As the Supreme Court noted in its decision in Trump v. CASA, Inc. (pp. 24-25 n.18), the Solicitor General committed to the Court that he would “absolutely” seek certiorari when the Government lost one of its pending appeals. Therefore, presumably the SG will petition for certiorari from the Ninth Circuit decision sometime in the next few weeks or months (assuming the court of appeals doesn’t hear the case en banc).
On August 1, the U.S. Court of Appeals for the First Circuit heard two oral arguments in three other cases raising the merits issues—two from U.S. District Court for the District of Massachusetts (O. Doe v. Trump and New Jersey v. Trump) and the third from the U.S. District Court for the District of New Hampshire (New Hampshire Indonesian Community Support v. Trump). Until recently, an appeal was also pending in the U.S. Court of Appeals for the Fourth Circuit in CASA, Inc. v. Trump, but on July 29 that court dismissed the appeal and remanded the case to the district court, which has now entered a new preliminary injunction protecting a certified class of plaintiffs that includes every child born after February 19, 2025 who’s covered by the Citizenship Order. That classwide preliminary injunction conforms with another such injunction that a district court in New Hampshire entered on July 10. The Government has yet to appeal either of these classwide preliminary injunctions, but it might do so soon.
Judge Ronald Gould’s opinion for the Ninth Circuit in Washington v. Trump, joined by Senior Judge Michael Daly Hawkins, nicely summarizes the judiciary’s uniform views on the merits thus far. (Judge Patrick Bumatay dissented on questions related to the standing of States to challenge the implementation of the Citizenship Order. He did not address the merits.) Interested readers should start with the relevant section of Judge Gould’s opinion (see pages 24-43) in order to understand the merits questions. The remainder of this series offers a deeper dive into certain important and/or underemphasized aspects of the Department of Justice’s arguments in defense of the Citizenship Order.
In this post, I evaluate DOJ’s lead argument in each of its appellate briefs, which is an argument about what the key, contested phrase in the Citizenship Clause—“subject to the jurisdiction [of the United States]”—allegedly cannot mean.
According to DOJ, the plaintiffs’ proposed construction, which the Ninth Circuit, several district courts, and three Supreme Court Justices in Trump v. CASA, Inc. have now adopted, simply can’t be right because (according to DOJ) it’s inconsistent with at least two of the accepted, historical exceptions to birthright citizenship. My primary objective in this post is to explain why, properly understood, the plaintiffs’ reading of “subject to the jurisdiction thereof,” derived from the Supreme Court’s governing opinions in Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898), does justify the three established exceptions but does not cover the two categories of U.S.-born persons described in the Trump Citizenship Order.
The next article will examine DOJ’s principal affirmative reading of “subject to the jurisdiction thereof,” which is that it requires a person born in the United States also to be domiciled here on the date of birth in order to be a birthright citizen. That post will explain why DOJ’s “domicile” argument can’t be reconciled with the ratio decidendi of the Supreme Court’s governing opinion in Wong Kim Ark. It’ll also highlight an important, and widely overlooked, aspect of DOJ’s affirmative argument, which is that it’s almost entirely devoted to defending the second (and less numerous) category of persons identified in Section 1 of the Trump Citizenship Order—persons born in the U.S. to women who were, on that date, lawfully but temporarily present in the country (for example, on a work or student visa). As the post will discuss, DOJ’s reading of the Citizenship Clause offers almost nothing in support of the Order’s declaration that the first, and much larger, category of persons—those born in the U.S. to women who, on the date of birth, were not legally authorized to be in the country—are not birthplace citizens.
In my final post, I’ll address plaintiffs’ (and certain amici’s) statutory argument, which is independently sufficient to demonstrate that the Trump Citizenship Order is unlawful. That article will explain that DOJ’s argument about the relevant statutory enactments—in 1940 and 1952—is based upon an unconvincing account of the public and governmental understanding of the scope of birthright citizenship in the decades between Wong Kim Ark and 1952.
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The Citizenship Clause of the Fourteenth Amendment provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” A federal statute Congress first enacted in 1940, and re-enacted in 1952, likewise provides, in materially identical language, that “a person born in the United States, and subject to the jurisdiction thereof,” shall be a national and citizen of the United States “at birth.” 8 U.S.C. § 1401(a).
On the first day of his second term, President Donald Trump issued the Citizenship Order. Section 1 of that Order declares that neither the Fourteenth Amendment nor the federal statute guarantees U.S. citizenship for two categories of persons who were born in the United States to a father who wasn’t a citizen or lawful permanent resident at the time of the person’s birth: (1) those whose mothers were “unlawfully present” in the United States on the person’s date of birth; and (2) those whose mothers were lawfully present in the United States on a temporary basis, such as on a student, work, or tourist visa, on the child’s date of birth. (Sections 2 and 3 of the Order direct Executive agency officials to implement President Trump’s new definition of citizenship in particular ways. I discuss those aspects of the Order in my earlier article.)
All parties in the various suits agree that the legality of the Citizenship Order turns on the constitutional and statutory phrase “subject to the jurisdiction thereof.” The Court of Appeals for the Ninth Circuit recently concluded that that phrase means, simply, “subject to the laws and authority of the United States,” such that an individual born in the United States is a citizen if, on the date of birth, she was “subject to” the regulatory authority of federal law—unless she falls within one of three discrete historical exceptions. Justice Sonia Sotomayor offered a similar formulation in her dissenting opinion in Trump v. CASA, Inc.: “To be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws. … As the Government would presumably concede, virtually everyone born in the United States and present in its territory is subject to its authority and its laws.”
DOJ offers a different understanding of “subject to the jurisdiction [of the United States]”—a very unusual, counterintuitive reading that depends upon whether the individual in question (the newborn) was “domiciled” in the United States on the date she was born here. As the next article in this series will explain, and as the Ninth Circuit held in its recent Washington v. Trump decision, DOJ’s affirmative, domicile-dependent argument about the scope of the Citizenship Clause is (at best) unconvincing in light of the Court’s rationale in Wong Kim Ark.
There is, however, one aspect of DOJ’s argument that appears to be much more formidable, at least on first glance. At the outset of each of its appellate briefs, DOJ argues that the definition of “subject to the jurisdiction [of the United States]” that the plaintiffs and the courts have adopted—in the Ninth Circuit’s words, being “subject to the laws and authority of the United States” at birth—simply can’t be right because (according to DOJ) it doesn’t account for at least two of the three well-recognized exceptions for categories of persons who, everyone agrees, are not deemed citizens on the basis of their birth in the United States—the children of diplomats and persons who are members of Indian tribes at birth. If the plaintiffs’ reading were correct, says DOJ (see, e.g., its opening brief in New Hampshire Indonesian Community Support at 9), it would leave the term “jurisdiction” “without a coherent meaning,” and would read the “subject to the jurisdiction thereof” condition “out of the Citizenship Clause, since everyone born or present on U.S. soil is subject to U.S. regulatory jurisdiction.” See also id. at 13-16 (purporting to explain how Congress has the power to subject persons in each of the excepted categories to regulation). And therefore, DOJ insists, “jurisdiction” in the Citizenship Clause must have some other, less familiar meaning.
The first problem with DOJ’s critique of plaintiffs’ (and the courts’) reading is that it caricatures that reading. The plaintiffs in each of the cases readily concede (or presumably they’d do so if pressed) that Congress has the power to regulate the persons described in at least two of the three historically exempt categories (i.e., all but the children of occupying forces). After all, as Justice Horace Gray wrote for the Court in Wong Kim Ark itself (pp. 683-684), quoting Chief Justice John Marhsall in The Schooner Exchange, “‘[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.’” The plaintiffs do not take issue with that proposition. Their argument is, instead, that “subject to the jurisdiction [of the United States]” refers to whether the individual in question was in fact bound by federal law at the moment of birth, rather than to whether Congress had the constitutional power to regulate that newborn person.[1]
Even so, this “negative” aspect of DOJ’s argument has at least some superficial analytic force by virtue of the fact that U.S. law does regulate, at least in some measure, two of the historically exempted categories of newborns—those born to foreign ambassadors and ministers, and those who are members of federally recognized Indian tribes. If that is so—i.e., if those categories of U.S.-born persons are not citizens (as all agree) even though they are subject to U.S. law—then how can it be that, as Justice Sotomayor put it, “[t]o be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws”? That puzzle is the thrust of DOJ’s lead argument.
As I’ll explain in this article, however, not only is there a throughline that connects each of the three historical exceptions, but that common ground does, indeed, depend upon the application of U.S. regulatory law to the categories of newborns in question (rather than merely to their parents). The common ground, however, is not quite as simple as whether Congress has authority to regulate such persons (it does) or whether Congress has actually regulated their conduct in some degree (which it has, at least as to some of the excepted categories). Instead, as the Supreme Court explained in Wong Kim Ark (quoting its earlier decision in Elk v. Wilkins), each of those excepted categories describes persons whoare, at birth, immune in a material respect from the application or enforcement of U.S. law, such that they are not “completely subject” to the “political jurisdiction” of the United States.[2]
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Before I examine more closely the Court’s gloss on the “subject to” phrase and explain how it is designed to encompass the three recognized exceptions—and only those exceptions—it’s important to emphasize that the Court’s reading of the Citizenship Clause was powerfully influenced, and perhaps ultimately determined, by its understanding of why the framers of the Clause included that qualifying language in the constitutional provision. That doesn’t mean the words of the phrase are unimportant. Indeed, Justice Gray acknowledged in Wong Kim Ark that “the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment,” and that “the debates in Congress are not admissible as evidence to control the meaning of those words.” 169 U.S. at 699 (emphasis added). Nevertheless, Gray stressed that legislators’ statements were “valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves,” id., and, of greater significance here, the ultimate touchstone for the Court’s holdings was “the intention of the Congress which framed and of the States which adopted this Amendment”—i.e., the Court’s assessment of what the framers were trying to accomplish. Cf. King v. Burwell, 576 U.S. 473, 498 (2015) (“A fair reading of legislation demands a fair understanding of the legislative plan.”).
So what was the framers’ objective? In Wong Kim Ark, the Court held that the Citizenship Clause is “declaratory in form, and enabling and extending in effect.” 169 U.S. at 676. Thus, explained Justice Gray, the Clause is “not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption.” Id. (emphasis added). (That understanding reflected the views of Senator Jacob Howard of Michigan, who introduced the Clause. Howard characterized the amendment as “simply declaratory of what I regard as the law of the land already.” Cong. Globe, 39th Cong., 1st Sess., at 2890.)
Accordingly, far from establishing an open-ended condition that might apply to various additional categories of U.S.-born persons whom the framers had not contemplated, “[t]he real object” of the “subject to the jurisdiction thereof” phrase apparently was, instead, simply “to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State—both of which, as has already been shown, by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” Wong Kim Ark, 169 U.S. at 682.
In other words, in order to be faithful to the framers’ objectives, the Court construed the “subject to the jurisdiction thereof” phrase as establishing a ceiling of those U.S.-born persons who are excepted from the baseline citizenship guarantee, rather than a general standard that might result in further exceptions for additional, unforeseen categories of native-born persons.
Until very recently, the fact that the “real object” of the Citizenship Clause was to establish a hard-and-fast general rule with a small handful of discrete, established exceptions would have been virtually sufficient, in and of itself, to decide the question of whether the Trump Citizenship Order is constitutional. It wouldn’t have been necessary to explain whether and how the Trump categories materially differ from the established exceptions. The only reason DOJ’s critique of the plaintiffs’ position might have any purchase at all in 2025 is that some Justices on the current Court purport to be far more textualist than the Court has been in previous eras—including in 1898, when it decided Wong Kim Ark—and concededly it’s difficult to understand the scope of the conditional clause merely by viewing the words in isolation, given the consensus about the three preserved exceptions.[3]
Even in this purported age of textualism, however, there’s nothing to prevent the Court from using such a “framers’ objectives” lens in resolving the challenges to the Trump Citizenship Order. Indeed, that approach would be fully consistent with the way the modern Court itself—including self-professed textualist Justices—approaches another very important, familiar part of Section 1 of the Fourteenth Amendment. The Citizenship Clause is the first sentence of Section 1. The much more well-known second sentence of Section 1 then famously provides that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” Read literally, that clause might appear to prohibit states from drawing just about any legal distinctions whatsoever among persons; its language, like “subject to the jurisdiction thereof” one sentence earlier, is remarkably open-ended. Yet in construing the Equal Protection Clause, the Court has developed an elaborate edifice of doctrinal distinctions among different forms of discrimination that has no grounding in the text.
For example, as Justice Amy Coney Barrett recently pointed out in her concurring opinion in United States v. Skrmetti, the Court has generally adhered to “the principle that ‘[w]hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes’” (quoting Cleburne). In contrast, the Court has created various tiers of “scrutiny” that are to apply to some other grounds of discrimination in state and federal laws (e.g., race, national origin, and sex)—a method, as Justice Barrett noted, the Court has derived from Carolene Products footnote 4 rather than from the text of Section 1. The Court has also established “tests” that are to be applied at each level of scrutiny; and has applied such tests to countless different factual scenarios. The result is that, notwithstanding the broad prohibitory language of the Equal Protection Clause, grounds of distinction found in state statutes are ordinarily permissible … but not invariably.
In creating and adjudicating all of these fine-grained distinctions, the Court has virtually always disregarded the broadly worded constitutional text entirely; instead, the Court has focused on what the Justices believe to be “the real object[s] of the Fourteenth Amendment,” 169 U.S. at 682, just as the Court did when construing the Citizenship Clause in Wong Kim Ark.
Examples of the Court’s text-free, purpose-centered application of the Equal Protection Clause are legion. Most recently, Chief Justice John Roberts explained in Students for Fair Admissions v. Harvard (2023)—as he had in earlier cases—that the Court applies strict scrutiny to race-specific distinctions, including affirmative action laws, not because of any textual command, but instead to reflect “‘[t]he clear and central purpose of the Fourteenth Amendment … to eliminate all official state sources of invidious racial discrimination in the States’” (quoting Loving v. Virginia). In that same case, Justice Clarence Thomas insisted that the Equal Protection Clause requires strict color-blindness “with no textual reference to race whatsoever”—indeed, even though Congress chose not to use an earlier proposal from Representative Thaddeus Stevens that would have provided expressly that “[n]o discrimination shall be made by any State nor by the United States as to the civil rights of persons because of race, color, or previous condition of servitude.” According to Thomas, the lack of a textual hook is no matter; it’s sufficient to point to the “equality vision reflected in the history of the Fourteenth Amendment’s enactment.” (Thomas further noted that the Court applies strict scrutiny to race discrimination by the federal government even though the Fifth Amendment doesn’t include an equal protection clause at all (citing Bolling v. Sharpe).) Similarly, in last Term’s decision in Skrmetti, the extensive debate between Justices Barrett and Sotomayor about whether discrimination against transgender persons should be subject to heightened scrutiny included discussion of many factors, but the text wasn’t among them.
If the Court were to apply a similar sort of analysis to the Citizenship Clause, with an emphasis on the “real object” (Wong Kim Ark) or “clear and central purpose” (SFFA) of the Clause, then it would be clear as day that the Trump Citizenship Order directs federal officials to act unconstitutionally, because (as the Court has already held in Wong Kim Ark) the framers’ object in including the “subject to the jurisdiction” qualifier was simply to codify the three established exceptions, and nothing more. There would be no need for the Court to discern or apply any sort of Grand Unified Theory of what “subject to the jurisdiction thereof” means for categories of U.S.-born persons who don’t fall within one of those three established exceptions.
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In any event, the Supreme Court already has determined the proper way to apply the qualifying phrase to various categories of native-born persons, and it did so in a way that fully accounts for the three established exceptions the framers intended to preserve.
There are only two Supreme Court decisions interpreting the Citizenship Clause—Elk v. Wilkins (1884) and Wong Kim Ark (1898). Justice Gray wrote the opinion for the Court in each case. “The evident meaning” of the phrase “subject to the jurisdiction thereof,” wrote Gray in Elk, “is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” 112 U.S. at 102 (emphasis added); see also Wong Kim Ark, 169 U.S. at 680 (quoting this holding from Elk); Inglis v. Trustees of Sailors’ Snug Harbor, 28 U.S. 99, 155 (1830) (Story, J., dissenting) (“the party must be born within a place where the sovereign is at the time in full possession and exercise of his power”).
In other words, in order to explain the established exceptions that the framers uncontrovertibly intended to preserve, the Court concluded that the “subject to” phrase must be construed to have an implied modifying adverb: “completely.” Accordingly, the determinative question the Court asked in both cases (the “test,” in a sense, that it employed) was whether U.S. law entirely regulated the conduct of the person claiming citizenship himself—not his parents—on the date of his birth in the United States.
Before turning to examine how Justice Gray’s formulation explains the three established exceptions, it’s important to address two conceptual matters.
First, in its appellate briefs in the pending cases, DOJ oddly insists that the Court’s use of the term “political jurisdiction” in Elk (which Justice Gray then repeated in Wong Kim Ark) did not refer to the federal Government’s regulation of an individual’s conduct. See, e.g., Appellants’ Reply Brief in New Hampshire Indonesian Community Support at 4-7. Yet Justice Gray made clear in Wong Kim Ark that even a temporary visitor to the country is “subject to the political jurisdiction” of that nation’s government in the sense that “‘for so long a time as he continues within the dominions of [the] foreign government’” he “‘owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be.’” 169 U.S. at 693-94 (quoting Secretary of State Webster’s report in Thrasher’s Case). In other words, the Court itself used the term “political jurisdiction” to mean the government’s exercise of regulatory or prescriptive authority.
Best I can tell, DOJ’s argument that “political jurisdiction” “cannot mean regulatory jurisdiction,” Reply Brief in New Hampshire Indonesian Community Support at 7, is predicated entirely on the fact that the Court held in Elk that tribal Indians were not completely subject to the “political jurisdiction” of the United States even though it “was well settled when the Citizenship Clause was ratified that the United States could exercise regulatory power over Indian tribes,” id. at 6. As I’ve tried to explain in this post, however, the holding in Elk was based on the fact that Congress generally had not exercised its available regulatory authority against tribal members and thus had chosen not to subject them to Congress’ “complete” regulatory jurisdiction. There’s nothing inconsistent between that holding and the fact that Congress could have exercised regulatory power over tribal Indians.
Nor does DOJ offer any plausible alternative meaning of “political jurisdiction.” DOJ posits that an individual is only subject to the “political jurisdiction” of a nation if she owes that nation “allegiance.” That gets things backwards: required allegiance (at least while one is present in a state) is an incident of being subject to a state’s political jurisdiction, rather than a precondition for being subject to that jurisdiction. In any event, DOJ’s alternative understanding doesn’t support their argument: As the Wong Kim Ark passage quoted above, as well as others, establishes, and as the next post in this series will explain in greater detail, the Court held that even persons temporarily visiting the nation do owe it “allegiance” in the relevant sense—that is, they “owe[] obedience to the laws of that [nation’s] government,” 169 U.S. at 694—while they are present within its territory.
Second, there’s concededly something formalistic about a reading of the Citizenship Clause, such as the one the Court adopted, that turns on a fact about whether federal law regulates a person’s conduct at the moment of their birth in the United States. To be sure, persons born in U.S. territory technically owe obedience to federal law on their date of birth; they are prohibited, for example, from violating any part of the federal criminal code. But what does that matter, given that they aren’t aware of that law and, in any event, can’t form the requisite mens rea? Likewise, as the Court in Wong Kim Ark explained, 169 U.S. at 680, it’s true that individuals born in the United States presumptively owe the United States “direct and immediate allegiance” from the very moment of their birth. But, again, that’s effectively a legal fiction that has little or no practical significance, at least during infancy, given that a newborn can’t choose whether or not to honor such a duty.
Even so, the language of the Citizenship Clause does appear to make regulatory, i.e., prescriptive, jurisdiction over the child relevant to the question of birthright citizenship; and, more to the point, the Supreme Court held, in both Wong Kim Ark and Elk, that the phrase “subject to the jurisdiction thereof” turns on whether the United States exercises complete “political jurisdiction” (i.e., prescriptive authority) over a person at the moment of his or her birth in the United States.[4] As I’ll now elaborate, that gloss on “subject to the jurisdiction thereof” explains each of the three categories of persons born in the United States who are not deemed citizens at birth. By contrast, it does not encompass the two categories of U.S.-born persons described in the Trump Citizenship Order.
1. Persons Born to Occupying Enemy Forces
This is the easiest of the three established exceptions to understand, because it involves a situation in which the territorial government of the relevant nation is disabled from exercising regulatory jurisdiction over the persons in question. If, for instance, military forces of an enemy nation were to occupy and govern the territory of the United States, the U.S. government established by the Constitution would lack the ability to apply or enforce its law as to anyone. To be sure, in such a case the foreign nation wouldn’t establish territorial sovereignty (see Chris Mirasola); nevertheless, the newborn child of one of those invading forces wouldn’t in any practical sense be subject to the regulatory jurisdiction of the sovereign occupied state, let alone be “completely subject” to it. Justice Gray explicated this exception at page 683 of Wong Kim Ark, where he quoted at length from Justice Joseph Story’s opinion for the Court in United States v. Rice (1819):
In United States v. Rice, (1819) 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States, because, as was said by Mr. Justice Story in delivering judgment: “By the conquest and military occupation of Gastine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.”
The “foreign enemy occupation” exception does, however, raise one thorny question. What about other children born during such an occupation, including to the citizens of the occupied state itself? Like the children of the occupying forces, they are not in a practical sense subject to the jurisdiction of the “native” nation at birth because the government of that state has been displaced. Does this mean that they’re not birthright citizens and therefore must be naturalized after the occupation ends in order to become citizens?
I haven’t studied how the common law treated such persons, but I imagine that it deemed them to be birthright citizens after the occupation, in contrast with the children born to the occupiers themselves. That is, in any event, what Justice Story himself suggested in his dissenting opinion in Inglis v. Trustees of Sailors’ Snug Harbor (1830). Story explained (28 U.S. at 156) that “the children of the natives, born during such temporary occupation by conquest, are, upon a reconquest or reoccupation by the original sovereign, deemed, by a sort of postliminy, to be subjects from their birth although they were then under the actual sovereignty and allegiance of an enemy.” (The majority in that case didn’t disagree with Story on this point—they didn’t address it because the case itself didn’t concern a dispute about birthright citizenship.) I assume Story was right about that, but it hardly matters whether his is the best explanation because—fortunately—this isn’t a conundrum the United States has had to deal with for centuries, if ever.
2. Persons Born to Foreign Ambassadors and Ministers
The second established exception is that the children of foreign ambassadors and ministers born in the United States are not U.S. citizens by virtue of their native birth because the national government has afforded them a particular sort of immunity from the enforcement of domestic law. See Wong Kim Ark, 169 U.S. at 685 (incorporating Chief Justice Marshall’s description in The Schooner Exchange (1812) of the form of diplomatic immunity that protects “foreign ministers”).[5] Notably, this exception is uncontroverted despite the fact that such persons are “subject to the jurisdiction” of the United States in the sense that they are obligated to comply with U.S. law.
It’s a mistake to assume, as many commonly do, that doctrines of “diplomatic immunity” afford foreign ministers and their families—let alone all foreign representatives—a right to violate domestic law while they’re present in the United States. Even the foreign representatives protected by the strongest form of such immunity—“personal inviolability,” which is the common label for the sort of immunity the Court discussed in Wong Km Ark—are generally subject to U.S. law, in at least two important senses: (i) they have a legal obligation to comply with the law; and (ii) law enforcement officials can constrain them from committing offenses. They also can be removed from the United States if they violate its law, and they can even be subjected to trial for violating the law if their home country consents.[6] Thus, as the State Department explains, “[i]t should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions.”
The more limited effect of the doctrine of personal inviolability is, instead, that covered diplomatic representatives (and their family members) may not be subjected to criminal trial or sanction (nor to civil proceedings, either, except under particular circumstances) for violating the law of the host state, absent the consent of their home state. Moreover, in most cases they can’t be arrested or held in custody, either, though they can be temporarily interdicted in order to prevent them from violating the law.
This is a longstanding norm of international relations, which now appears in the Vienna Convention on Diplomatic Relations. Such personal inviolability is only available by virtue of the host state’s consent, see Won Kim Ark, 169 U.S. at 684, but virtually all nations confer it, not only because they have entered into a treaty requiring it, but also because their ability to engage in foreign relations would be significantly compromised if they didn’t extend such inviolability. As Chief Justice Marshall wrote in The Schooner Exchange (quoted in Wong Kim Ark, 169 U.S. at 685), “without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission.”
The First Congress codified the personal inviolability rule in Section 25 of the 1790 Crimes Act, 1 Stat. 117-18,[7] and it remains U.S. law today.[8] Under current law, as under early American law, such personal inviolability extends only to diplomatic agents and to family members who are part of their households—including newborns.[9]
Because the children of such diplomats themselves enjoy personal inviolability, they don’t become U.S. citizens when born in the United States. This exception carries over into the Constitution the common law rule that the Citizenship Clause incorporates. See Wong Kim Ark, 169 U.S. at 658 (“every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupation of the place where the child was born) (emphasis added)).
Importantly, children born in the United States to all other sorts of foreign representatives are citizens pursuant to the Fourteenth Amendment because they are not protected by the personal inviolability rule. For example, although consular officials enjoy some limited forms of immunity when performing official acts, they and their families aren’t entitled to the personal inviolability that diplomats and their families have even for conduct undertaken in their personal capacity, because the consuls don’t represent their home nations in the conduct of foreign relations. See Foreign Ministers, Consuls, Etc., 1 Op. Att’y Gen. 406 (1820); see also Respect Due to Consuls, 1 Op. Att’y Gen. 41, 42 (1794) (because a consul “is not in any degree invested with the representative character[,] it has, more than once, been judicially determined that he is not entitled to the privileges attached to the person of every public minister”). Therefore, their U.S.-born children are birthright citizens, in contrast to the children of diplomats. (Check out, for example, the extraordinary case of Moncada v. Blinken, 680 F. Supp. 3d 1190 (C.D. Cal. 2023), in which the State Department treated the plaintiff as a citizen for many decades based upon the assumption that he’d been born while his father was serving as Nicaraguan Consul in New York, only to have the first Trump Administration strip him of citizenship—and revoke his passport—when it determined that his father had become an attaché to the permanent mission of Nicaragua to the United Nations, a diplomatic position subject to full personal inviolability, before the plaintiff was born.)
The children-of-diplomats exception, then, is not a case, akin to foreign occupation, in which the federal government is incapable of exercising its jurisdiction over the newborns in question. It may do so, but it has chosen, in light of international law obligations and diplomatic norms, to confer upon them a form of partial immunity—freedom not from the application of domestic law but from being subject to certain means of enforcement of that applicable law. In this respect the United States has “‘waive[d] the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation.’” Wong Kim Ark, 169 U.S. at 684 (quoting The Schooner Exchange) (emphasis added). Personal inviolability of the child of a foreign minister, which is “traced up to [the Government’s] own consent, express or implied,” thus creates an exception to the exercise of the Government’s “full and absolute territorial jurisdiction” that it is entitled to exercise. Id. at 686. And that, according to the Court in Wong Kim Ark, is sufficient to trigger an exception to the rule of birthplace citizenship, because although children born to diplomatic agents in this country are subject in some respects to the federal government’s “political jurisdiction,” they aren’t “completely subject” to it (id. at 680).[10]
3. Persons Born as Members of Indian Tribes
The final exception is the one the Court recognized in Elk—the only one of the exceptions that doesn’t have its genesis in the common law. A person who, at birth, is a member of an Indian tribe is not deemed a U.S. citizen pursuant to the Fourteenth Amendment, even if (as in Elk) they later purport to leave the tribe and pledge full allegiance to the United States. See Elk, 112 U.S. at 102 (holding that the “subject to” phrase relates to the time of birth rather than the date on which the individual seeks to be treated as a citizen). (This constitutional exception is no longer of practical importance because in 1924 Congress enacted a statute conferring citizenship upon persons who are born in the United States to a member of an Indian tribe. See 8 U.S.C. § 1401(b).)
In support of its argument that the plaintiffs’ reading of “subject to the jurisdiction [of the United States]” must be wrong, DOJ emphasizes that this tribal exception exists despite the fact that Congress has the constitutional power to regulate the conduct of tribal members—even on Indian lands and with respect to other tribal members—and that Congress has exercised that authority (relatively rarely before ratification of the Fourteenth Amendment, but more commonly after 1871). According to DOJ (reply brief in New Hampshire Indonesian Community Support at 5), “plaintiffs’ articulation of the legal standard is clearly incompatible with the Supreme Court’s treatment of tribal Indians, who plaintiffs concede are subject to the government’s regulatory jurisdiction, … but are nonetheless not ‘subject to the jurisdiction’ of the United States for the Citizenship Clause, Elk, 112 U.S. at 102.”
The Court’s holding in Elk, however, wasn’t predicated on the (incorrect) supposition that Congress is constitutionally disabled from regulating members of tribes. The Court recognized that Congress has such authority. See 112 U.S. at 107 (discussing an 1871 statute, Act of March 3, 1871, ch. 120, the effect of which was “to require the Indian tribes to be dealt with for the future through the legislative and not through the treatymaking power”); id. at 100 (observing that historically “[g]eneral acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them”) (emphasis added).[11] What made tribal newborns “the anomalous case,” Wong Kim Ark, 169 U.S. at 683, then, was not that Congress couldn’t regulate them, but that it had done so only rarely: such tribal members might have been “subject in some respect or degree to the jurisdiction of the United States,” but they were not “completely subject to their political jurisdiction” at their “time of birth,” Elk, 112 U.S. at 102 (emphasis added), and therefore were not deemed U.S. citizens by virtue of their birth on U.S. territory.
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Before turning to the question of whether the persons covered by the Trump Citizenship Order are “subject to [U.S.] jurisdiction” at birth in light of the Court’s understanding of that phrase in Elk and Wong Kim Ark, it’s necessary to highlight one other thing about the three established exceptions to citizenship for native-born persons. As elaborated above, when evaluating whether an individual was born “subject to the jurisdiction [of the United States]” in Elk and Wong Kim Ark, the Court identified the relevant question not as whether the national government had authority to exercise regulatory jurisdiction over that person at the time of their U.S. birth—something it can do in all cases apart from occupation—but instead whether the government had in fact applied its regulatory power to that person “completely” on the date of birth. As to each of the three established excepted categories of persons born in the United States, the answer to that question was: no.
But that’s not the only thing the three established exceptions had in common. To be sure, as Justice Story noted in Inglis, 28 U.S. at 155, each of the exceptions is “founded upon peculiar reasons.” See also Wong Kim Ark, 169 U.S. at 682 (“children of members of the Indian tribes … stand[] in a peculiar relation to the National Government”). Yet they aren’t simply random, idiosyncratic situations in which Congress happens to have chosen, willy-nilly, not to assert its full authority over a subset of minors. (And they certainly aren’t cases in which Congress elected not to fully regulate a class of newborns specifically in order to circumvent Fourteenth Amendment citizenship.) Rather, there’s an important throughline connecting those three exceptions: Each is a function of a particular relationship between the United States and another sovereign—or, in the case of tribes, other quasi-sovereign entities. The “occupied forces” exception applies when a foreign sovereign has displaced the federal government in the United States. The “children of diplomats” exception applies because international law requires states to confer “personal inviolability” that precludes enforcement of the law against certain resident agents and families of fellow sovereign states. And the uniquely American exception for tribal members was a function of the federal government’s treatment of tribes as “distinct, independent political communities” (Worcester v. Georgia (1832)) embedded within U.S. territory.
Although Justice Gray did not write, in so many terms, that such an “inter-sovereign” justification is a necessary condition for an exception under the qualifying phrase of the Citizenship Clause, that characteristic is emphasized throughout the Court’s opinions in Elk and Wong Kim Ark.[12]
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By contrast with the newborns covered by the three established exceptions, all other persons born in the United States to foreign nationals are—and historically have been—subject to the complete political jurisdiction of the United States (as are their parents in the United States) on the day they are born. That includes both of the categories of persons described in the Trump Citizenship Order. United States law does, of course, apply in its entirety to a person born in the United States to a woman who entered the nation unlawfully (or who violated the law by overstaying her visa or other permission). And the same is true of someone born while their mother is visiting the United States lawfully—just as the law applies to the person’s mother herself while she is in the United States. As the Supreme Court held in Wong Kim Ark, when “private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants, for purposes of business or pleasure,” they are not subject to any “exemption from the jurisdiction of the country in which they are found,” and therefore that jurisdiction remains “absolute,” 169 U.S. at 686, as applied not only to such persons, but also to their newborn children. And the application of such “absolute” regulatory jurisdiction means that the child becomes a citizen at birth.
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The next post in this series will address DOJ’s affirmative, alternative reading of the Citizenship Clause, which is that a newborn in the U.S. is “subject to [U.S.] jurisdiction” only if he or she is domiciled here.
[1] The disconnect here might be attributable, at least in part, to the fact that most of the plaintiffs invoke the 1865 edition of Noah Webster’s American Dictionary of the English Language, which defined a nation’s “jurisdiction” as the “[p]ower of governing or legislating,” the “power or right of exercising authority,” the “limit within which power may be exercised,” or the “extent of power or authority.” The recent Ninth Circuit decision (see p.26) also cites that and similar dictionary definitions concerning a nation’s authority to regulate. Those definitions of “jurisdiction” are fine as far as they go, but they don’t address what it means for a newborn to be subject to that jurisdiction for purposes of the Citizenship Clause. Fairly read, the plaintiffs (and the Ninth Circuit) are not arguing that a newborn is “subject to” U.S. jurisdiction simply because Congress could in theory obligate that person to comply with U.S. law; instead, they contend that the child is “subject to” U.S. jurisdiction if such federal laws do, in fact, regulate that person.
[2] For what it’s worth, I think the Court’s understanding in Elk and in Wong Kim Ark was correct, at least as a matter of reflecting the framers’ objectives. Many others, however, have written about the original understanding and about pre-Wong Kim Ark interpretations. My focus in this piece and the next piece, by contrast, is on how the Supreme Court’s precedential holdings bear upon DOJ’s arguments.
[3] As noted in the text, Justice Gray wrote in Wong Kim Ark that the framers accomplished their objective by using “the fewest and fittest words.” “Fewest,” perhaps. “Fittest,” however, is a stretch. One can easily imagine “fitter,” i.e., more descriptive, words. For example, if, as the Court held in Wong Kim Ark, the “object” of the phrase was merely to carve out three discrete exceptions (two emanating from the common law and the other to deal with the idiosyncratic relationship of the federal Government to Indian tribes), and nothing more, the framers could have precluded any uncertainty simply by identifying those three exceptions by terms. Likewise, if the pertinent “test” is, as Justice Gray indicated in Wong Kim Ark, whether the newborn child is completely subject to the nation’s political jurisdiction, the framers of the Citizenship Clause surely could have added the adjective “completely” in order to be clear about what is and isn’t covered. As far as I know, there doesn’t appear to be any evidence of why the drafters of the Clause (Senator Jacob Howard, in particular) chose the particular words that appear in the qualifying phrase, rather than opting for a more cabined and precise formulation.
[4] DOJ at times emphasizes the flip side of the duty of allegiance—namely, that a birthright citizen “derive[s] protection” from the United States (Wong Kim Ark, 169 U.S. at 659). It’s true that that legal relationship, unlike allegiance, obviously is of practical significance at the moment of birth: The federal government has the same obligation to protect newborns from harm that it has for others within its territory, and when dealing with newborns it must comply with those legal obligations that apply to all persons—including, for example, the equal protection component of the Due Process Clause of the Fifth Amendment. Yet the Government has such obligations of protection with respect to all minors in the United States, whether they’re citizens or not, and whether or not they fall within one of the historical exceptions to birthright citizenship. (The federal government cannot, for example, refuse to protect children of ambassadors from harm, nor discriminate against them on the basis of race.) Application of the Citizenship Clause therefore cannot turn on whether the United States owes some duty of protection to the person at birth, for that would cover the waterfront and wouldn’t admit of any exceptions at all.
[5] As Marshall explained in The Schooner Exchange (see Wong Kim Ark, 169 U.S. at 684), such immunity also applies to a “foreign sovereign” him- or herself (e.g., a king or queen) when present in the United States.
[6] As to possible waiver of immunity by the sending state, the State Department explains: “Always keep in mind that privileges and immunities are extended from one country to another in order to permit their respective representatives to perform their duties effectively; in a sense, it may be said the sending countries ‘own’ these privileges and immunities. Therefore, while the individual enjoying such immunities may not waive them, the sending states can, and do. Police authorities should never address the alleged commission of a crime by a person enjoying full criminal immunity with the belief that there is no possibility that a prosecution could result. The U.S. Department of State requests waivers of immunity in every case where the prosecutor advises that, but for the immunity, charges would be pursued. In serious cases, if a waiver is refused, the offender will be expelled from the United States and the U.S. Department of State will request that a warrant be issued and appropriate entries to the National Crime Information Center (NCIC) database be made by the responsible jurisdiction.”
[7] Section 25 provided: “[I]f any writ or process shall at any time hereafter be sued forth or prosecuted by any person or persons, in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic or domestic servant of any such ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, construction and purposes whatsoever.”
[8] See 22 U.S.C. § 254d (providing that “[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations … shall be dismissed”); Vienna Convention on Diplomatic Relations arts. 31(1) (“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State”), 32(1) (providing that the sending state can waive such immunity).
[9] See Vienna Convention art. 37(1) (extending that inviolability to “members of the family of a diplomatic agent forming part of his household”). Section 25 of the 1790 Act referred to the “domestic[s]” of the ambassador or minister. The United States defines members of the household to include spouses, children until the age of 21 (until the age of 23 if they are full-time students at an institution of higher learning), and such other persons expressly agreed to by the U.S. Department of State in extraordinary circumstances.
[10] Jim Jordan and 17 other members of the House Judiciary Committee, appearing as amici in some of the cases, argue that this sort of “partial” immunity can’t be the actual explanation for the “children of ministers” exception because “[i]f qualified, partial, or contingent immunity were sufficient to render diplomatic officials’ children not subject to the jurisdiction of the United States, then the children of domestic officials who receive such immunity—e.g., judges and prosecutors—would likewise not be subject to the jurisdiction of the United States and thus not citizens under the Fourteenth Amendment. That is wrong, of course.” Corrected Brief of Members of Congress as Amici Curiae in Support of Appellants and Reversal in O. Doe v. Trump at 30-31. Amici’s attempted analogy to judicial and prosecutorial immunity is misplaced. For one thing, foreign ministers, unlike judges and prosecutors, have “inviolability” from prosecution as to unlawful conduct undertaken in their personal capacity—it’s not merely an immunity for certain official-capacity acts. More importantly for present purposes, judges’ and prosecutors’ children don’t have any immunity at all, in contrast to the children of foreign ministers, who do. The relevant inquiry under Elk and Wong Kim Ark is whether the federal government exercised its complete regulatory authority over the newborn herself, rather than over the parents, even if the child’s immunity might be derivative of the parents’.
[11] The authorities the Elk Court cited for that proposition included United States v. Rogers, 45 U.S. 567 (1846), in which the Court wrote in dicta (id. at 572) that “it [is] too firmly and clearly established to admit of dispute, that the Indian tribes residing within the territorial limits of the United States are subject to [the United States’] authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offen[s]e committed there, no matter whether the offender be a white man or an Indian”; as well as Crow Dog’s Case, 109 U.S. 556, decided less than one year before Elk, in which the Court appeared to assume (id. at 572) that Congress had authority to deviate from its “general policy” and to prohibit crimes by Indians against other Indians, at least as long as it provided a “clear expression” of an intent to do so.
Although the 1866 Senate debates are hardly clear on this point, it’s possible that some congressional proponents of the Citizenship Clause might have believed that Congress lacked any constitutional authority to regulate members of tribes—a view suggested, as well, by a sentence in an 1870 Senate Report, see S. Rep. No. 41-268, at 9 (“an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void”). To the extent anyone in Congress held that view, however, it would have been inconsistent with the Supreme Court dicta in Rogers. And just a few months after the Senate Report, the Court adopted the Rogers dicta as a holding, going so far as to say that the propositions in Rogers about congressional authority over Indians were “so well settled in our jurisprudence that it would be a waste of time to discuss them.” The Cherokee Tobacco, 78 U.S. 616, 619 (1871); see also id. at 622 (Bradley, J., dissenting) (“the United States has not relinquished its power to make such regulations as it may deem necessary in relation to [Indian] territory, and … Congress has occasionally passed laws affecting it”). Congress itself likewise rejected any constitutional disability over Indians in the 1871 statute flagged in Elk, 112 U.S. at 107. Congressional enactments both before and, especially, after enactment of the Fourteenth Amendment also bely the idea that Congress can’t regulate the conduct of tribal Indians. See, e.g., United States v. Kagama (1886) (upholding Congress’ authority to enact an 1885 statute prohibiting Indians from committing violent felonies on Indian reservations); see also Maggie Blackhawk, Foreword: The Constitution of American Colonialism, 137 Harv. L. Rev. 1, 107 (2023) (noting that the process of Congress and the Executive regulating Native nations and their polities directly through domestic law “began much earlier” than 1871 “and progressed more informally over time”). Today, there’s little dispute within the Court that Congress has a “muscular” power to regulate tribal members. Haaland v. Brackeen, 599 U.S. 255, 273 (2023) (citing numerous cases); see also, e.g., United States v. Wheeler, 435 U.S. 313, 323 (1978) (noting that the “general government” “alone can enforce its laws on all the tribes”); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“Indian tribes are, of course, no longer ‘possessed of the full attributes of sovereignty.’ Kagama. Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.”). Justice Neil Gorsuch is a possible exception. Concurring in Brackeen, he wrote that the proposition in Santa Clara Pueblo that Congress has “plenary authority” to “limit, modify, or eliminate the powers of local self-government which the [T]ribes otherwise possess” is “an ‘inconceivable’ suggestion for anyone who takes the Constitution’s original meaning seriously.” 599 U.S. at 328 (Gorsuch, J., concurring). No other Justice expressed such doubts, however.
More to the point for present purposes, and as explained in the text, the Court in Elk didn’t rely upon the notion that Congress lacked constitutional authority; rather, it held that newborn members of tribes were not birthright citizens because, inter alia, Congress had chosen (in light of the unique relationship between the U.S. and recognized tribes) not to subject them to federal jurisdiction “completely,” 112 U.S. at 102. Nor did the Court in Wong Kim Ark rely upon any purported want of congressional power in describing the three established exceptions to birthright citizenship.
[12] In Wong Kim Ark, Justice Gray discussed a fourth situation in which states historically refrained from exercising jurisdiction over persons in their territory, which also involved a particular relationship between sovereigns—namely, when public armed ships of a friendly nation are docked in a domestic port. Gray quoted at length from Chief Justice Marshall’s discussion of this issue in The Schooner Exchange (1812), 169 U.S. at 684-85:
[A] public armed ship, in the service of a foreign sovereign, with whom the Government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.
On page 693 of Wong Kim Ark, Justice Gray even went so far as to suggest that children “born on foreign public ships” in U.S. ports would therefore be subject to a fourth exception to the general rule of citizenship for those born in U.S. territory. Accord DOJ Brief for Appellants in New Hampshire Indonesian Community Support at 11 (characterizing the “birth on ships in port” hypothetical as a category of persons “who, despite birth in the United States, are not constitutionally entitled to citizenship because they are not ‘subject to the jurisdiction’ of the United States”). Justice Gray did not, however, cite any actual common law cases involving such a question, presumably because persons have rarely, if ever, been born on military ships docked in foreign ports. Because this “fourth” exception is likely to be a null set, I haven’t included it in my textual discussion of the three established exceptions.
The post Taking Stock of the Birthright Citizenship Cases, Part II: Making Sense of the Three Established Exceptions appeared first on Just Security.
