Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. CASA, Inc., et al.

Nos. 24A884, 24A885, 24A886

_________________________________________

In the

Supreme Court of the United States

_________________________________________

DONALD J. TRUMP ET AL., APPLICANTS,

V.

CASA, INC., ET AL., RESPONDENTS.

_________________________________________

DONALD J. TRUMP ET AL., APPLICANTS,

V.

WASHINGTON, ET AL., RESPONDENTS.

_________________________________________

DONALD J. TRUMP ET AL., APPLICANTS,

V.

NEW JERSEY ET AL., RESPONDENTS.

_________________________________________

On Applications for Stay of Injunctions

_________________________________________

BRIEF OF AMICUS CURIAE

THE CLAREMONT INSTITUTE’S

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF APPLICANTS

_________________________________________

John C. Eastman, Counsel of Record

Alexander Haberbush

CONSTITUTIONAL COUNSEL GROUP

444 W Ocean Blvd, Ste 1403

Long Beach, CA 90802

(909) 257-3869

jeastman@ccg1776.com

Counsel for Amicus Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iv

INTEREST OF AMICUS CURIAE ............................................................................... 1

SUMMARY OF ARGUMENT ....................................................................................... 2

ARGUMENT .................................................................................................................. 2

I.

The Assertions by Respondents and the Lower Courts About the

Citizenship Clause’s Application to Children of Illegal Aliens and

Temporary Visitors Being “Well-Settled” Is Patently Erroneous. ................... 2

A. This Court has never held that the children born on U.S. soil to

temporary visitors or illegal aliens are automatic citizens. ....................... 2

B. The Only Question Presented and Decided in Wong Kim Ark Was

Whether Children Born to Parents Who Were Permanently Domiciled

In the United States Were Citizens; Everything Else Is Dicta. ................. 4

II. The Historical Evidence Cited By Respondents Is Inconclusive, at Best. ...... 6

A. Mischaracterization of Charming Betsy ...................................................... 6

B. Misunderstanding of the limited import of Lynch v. Clarke and

Exaggeration of its solitary citation in the Congressional Globe ............... 6

C. Misreading of Justice Story’s Commentaries on the Conflict of Laws........ 8

D. Mischaracterization of Senator Conness’s Remarks on Citizenship .......... 9

E. Overreliance on Dicta in several mid-20th century cases. ....................... 11

III. The Contrary Evidence is Compelling. .......................................................... 14

A. The American Revolution Rejected the Feudal Doctrine of Birthright

Subjectship in Favor of Citizenship Based on Consent and Allegiance. .. 14

B. Antebellum Law Confirmed That Citizenship Depended on Allegiance,

Not Mere Birthplace ................................................................................... 16

C. The 1866 Civil Rights Act, which the 14th Amendment was designed

to codify and constitutionalize, clearly excluded children who, through

their parents, were subject to a foreign power. ......................................... 17

D. Key Proponents of the 14th Amendment expressly stated that “subject

to the jurisdiction” meant complete jurisdiction, not merely partial,

territorial jurisdiction. ............................................................................... 19

E. This Court’s initial decisions interpreting the Citizenship Clause

recognized that the “subject to the jurisdiction” restriction excluded

children whose parents owed allegiance to a foreign power or a

domestic Indian tribe. ................................................................................ 20

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F. The leading treatise writer and the Secretary of State in the years

shortly after the adoption of the 14th Amendment agreed. ...................... 21

IV. For Nearly 100 Years After Adoption of the 14th Amendment, Both

Congress and the Executive Branch Recognized That More Than Birth

Alone Was Necessary For Automatic Citizenship. ......................................... 22

A. Indian Citizenship Act of 1924 .................................................................. 22

B. The Depression-Era Repatriation.............................................................. 24

C. Passport forms requiring “status of parents at birth” until 1966 ............ 25

CONCLUSION ....................................................................................................... 25

iv

TABLE OF AUTHORITIES

Cases

Biden v. Nebraska, 143 S. Ct. 477 (2022) ..................................................................... 1

Calvin’s Case, 7 Co. Rep. 1a, 77 Eng. Rep. 377 (K.B. 1608). ...................................... 14

Cherokee Nation v. State of Ga., 30 U.S. 1 (1831) ...................................................... 24

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). ............................................ 3, 5, 13

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) ............................................... 18

Elk v. Wilkins, 112 U.S. 94 (1884)............................................................. 14, 21, 23, 24

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)...................................................................... 1

Hirabayashi v. United States, 320 U.S. 81 (1943) ...................................................... 11

Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99 (1830)............. 9, 16, 17

INS v. Bagamasbad, 429 U.S. 24 (1976)..................................................................... 12

INS v. Errico, 385 U.S. 214 (1966). ....................................................................... 11, 13

INS v. Rios-Pineda, 471 U.S. 444 (1985) ........................................................ 11, 12, 13

Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. Ch. 1844) ................................................ 6, 7, 8

Minor v. Happersett, 88 U.S. 162 (1875). .................................................................... 17

Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). ..................... 6

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872). ............................ 14, 20, 21

United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957). ........ 11, 12, 13

United States v. Wong Kim Ark, 169 U.S. 649 (1898). ....................................... passim

Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554 (2018) ................................... 24

Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829). .......................................................... 9

Webster v. Fall, 266 U.S. 507 (1925). ...................................................................... 3, 13

Statutes

8 U.S.C. § 1401(b) ........................................................................................................ 22

22 U.S.C. § 212 ............................................................................................................. 25

Act of 1924. Act of June 2, 1924, ch. 233, 43 Stat. 253 ........................................ 22, 23

Act of July 27, 1868, ch. 249, § 1, 15 Stat. 223 ........................................................... 16

Cal. Gov’t Code § 8720 ................................................................................................. 24

Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27................................................... 17, 19

Rev. Stat. § 4076 (1878) ............................................................................................... 25

The Declaration of Independence, 1 Stat. 1 (1776) ................................................ 9, 15

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Other Authorities

Blackstone, William, Commentaries on the Laws of England (1765). ...................... 14

Cooley, Thomas M., The General Principles of Constitutional Law in the

United States of America 243 (1880)....................................................................... 22

Eastman, John C., Born in the U.S.A.? Rethinking Birthright Citizenship

in the Wake of 9/11, 12 TEX. REV. L. & POL. 167 (2007) ........................................... 2

Eastman, John C., From Feudalism to Consent: Rethinking Birthright

Citizenship, Heritage Found. Legal Mem. No. 18, at 7 (2006) ................................. 8

Eastman, John C., The Significance of “Domicile” in Wong Kim Ark, 22 CHAP. L.

REV. 301 (2019)................................................................................................... 2, 5, 6

Erler, Edward J., From Subjects to Citizens: The Social Compact Origins

of American Citizenship, in THE AMERICAN FOUNDING AND THE SOCIAL

COMPACT (Pestritto and West, eds., Lexington Books 2003) .......................... passim

Jefferson, Thomas, A Summary View of the Rights of British America (1774) ......... 15

Kent, James, 2 Commentaries on American Law (1860) (10th ed.) ............................ 7

Lash, Kurt T., Prima Facie Citizenship: Birth, Allegiance and the Fourteenth

Amendment’s Citizenship Clause, (Feb. 22, 2025, rev. Apr. 17, 2025) ........... passim

Story, Joseph, Commentaries on the Conflict of Laws (1834) ...................................... 8

West, Thomas G., Immigration and the Moral Conditions of Citizenship,

in THOMAS G. WEST, VINDICATING THE FOUNDERS: RACE, SEX, CLASS AND

JUSTICE IN THE ORIGINS OF AMERICA (1997) .............................................................. 1

Regulations

22 C.F.R. § 20 (1938).................................................................................................... 29

Constitutional Provisions

N.Y. Const. art. I, § 14 ................................................................................................... 7

U.S. Const., amend. XIV, § 1 ............................................................................... passim

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INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the public interest law arm of

the Claremont Institute, whose stated mission is to restore the principles of the American founding to their rightful and preeminent authority in our national life, including the importance of extending citizenship only to those who do not owe allegiance

to foreign powers. The Center previously appeared before this Court as amicus curiae

in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), in which it argued, in a brief joined by

former Attorney General Edwin Meese III, that the foreign enemy combatant Yaser

Esam Hamdi was not a citizen under the Fourteenth Amendment’s Citizenship

Clause merely because he was born to non-citizen parents who were only temporarily

in the United States. Claremont Institute scholars have been at the forefront of the

scholarly research demonstrating that, as a matter of original public meaning, the

Citizenship Clause did not extend to children born to those in the United States only

temporarily or illegally. See, e.g., Thomas G. West, Immigration and the Moral Conditions of Citizenship, in THOMAS G. WEST, VINDICATING THE FOUNDERS: RACE, SEX,

CLASS AND JUSTICE IN THE ORIGINS OF AMERICA (1997); Edward J. Erler, From Subjects to Citizens: The Social Compact Origins of American Citizenship, in THE AMERI-

1 In accordance with Rule 37.6, counsel affirms that no counsel for any party authored this

brief in whole or in part and that no person or entity other than amicus made a monetary

contribution to fund the preparation and submission of this brief. Amicus Center for Constitutional Jurisprudence joined another amicus brief in support of the application for stay, see

Brief Amici Curiae America’s Future et al., urging the Court to treat the United States’ application for stay as a petition for certiorari before judgment. See, e.g., Biden v. Nebraska,

143 S. Ct. 477 (2022). Now that the Court has scheduled oral argument, the Center files this

brief as comparable to a merits-stage brief. If that is deemed to be duplicative of it having

joined the prior brief, it asks leave to withdraw from the joinder on that brief.

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CAN FOUNDING AND THE SOCIAL COMPACT (Pestritto and West, eds., Lexington Books

2003); John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the

Wake of 9/11, 12 TEX. REV. L. & POL. 167 (2007); and John C. Eastman, The Significance of “Domicile” in Wong Kim Ark, 22 CHAP. L. REV. 301 (2019). Amicus believes

that this significant body of historical scholarship will be of benefit to the Court.

SUMMARY OF ARGUMENT

The United States has, at this point, only made a “modest” request to “restrict

the scope” of multiple, universal preliminary injunctions. Amicus agrees that the constitutionality of universal injunctions is an issue that desperately needs to be addressed and resolved by this Court, and that these cases present a good vehicle for

doing so. Amicus also believes that the merits of the underlying issue is ripe for consideration. The lower courts all treated the issue in their rulings below as one of pure

law. The Center agrees, and also contends that further percolation is not necessary,

particularly given the fact that the scope of the Citizenship Clause has previously

been addressed by this Court in several cases. This brief therefore focuses on the

substantive legal arguments of that underlying merits question.

ARGUMENT

I.

The Assertions by Respondents and the Lower Courts About the Citizenship Clause’s Application to Children of Illegal Aliens and Temporary Visitors Being “Well-Settled” Is Patently Erroneous.

A. This Court has never held that the children born on U.S. soil to temporary visitors or illegal aliens are automatic citizens.

Contrary to the assertions of Respondents and the lower courts, this Court has

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never held that the Fourteenth Amendment compels the grant of citizenship to children born in the United States to parents who are merely temporary visitors or unlawfully present. Both the District Court for the District of Maryland and the District

Court for the Western District of Washington, as well as Respondents, treat the matter as definitively settled, primarily relying on an expansive reading of United States

v. Wong Kim Ark, 169 U.S. 649 (1898), and subsequent dicta. This reliance is flawed.

As described more fully below, the actual holding in Wong Kim Ark was narrow, resolving only the specific question presented: the citizenship of a child born in

the United States to parents who were subjects of a foreign sovereign but who had

established a “permanent domicil[e] and residence in the United States.” Wong Kim

Ark, 169 U.S. at 653. Any language in that opinion suggesting a broader rule applicable to children of non-domiciled parents constitutes non-binding dicta. See Cohens

v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).

Furthermore, the subsequent cases cited by Respondents and the lower courts

do not contain holdings on this constitutional question. See Resp’ts Br. 9-10; Appx.

49a-50a. As demonstrated below, infra Section II.E, the statements regarding citizenship in those cases were either dicta unnecessary to the decisions or mere background assumptions made without any analysis of the Fourteenth Amendment’s requirements. Such unexamined assumptions cannot establish binding precedent. See

Webster v. Fall, 266 U.S. 507, 511 (1925).

Because this Court has never squarely held that the children of temporary visitors or illegal aliens are citizens by virtue of the Fourteenth Amendment, the question

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remains open for determination based on the Amendment's original public meaning.

B. The Only Question Presented and Decided in Wong Kim Ark Was

Whether Children Born to Parents Who Were Permanently Domiciled In the United States Were Citizens; Everything Else Is Dicta.2

Both the lower courts and Respondents fundamentally misconstrue the scope

of the holding of this Court’s decision in Wong Kim Ark. They treat the case as conclusively establishing that virtually all persons born on U.S. soil, regardless of parental status, are automatically citizens under the Fourteenth Amendment, subject only

to the few narrow exceptions of children born to diplomats or soldiers in occupying

armies. See, e.g., App’x 11a-14a, 35a-44a; Resp’ts Br. 8–9. In doing so, they dismiss

the critical fact of Wong Kim Ark’s parents’ lawful and permanent domicile as merely

incidental. Resp’ts Br. 9; see also App’x at 44a-45a. This characterization is untenable.

The Wong Kim Ark Court explicitly described the “question presented” as concerning a child born in the United States to parents “who have a permanent domicile

and residence in the United States, and are there carrying on business.” Wong Kim

Ark, 169 U.S. at 653 (emphasis added). This fact was not incidental—it was foundational to the District Court’s certified question, the stipulated record, and the Court’s

entire analysis. Id. at 650–53. The terms “domicile,” “domiciled,” “permanent domicile,” and “domiciled residents” appear nearly thirty times throughout the majority

2 Amicus contends that Justice Fuller’s dissenting opinion in the case accurately reflects the

original understanding of the Citizenship Clause, but Wong Kim Ark’s actual holding—that

children born to parents who were permanently domiciled in the United States—need not be

overturned to uphold the President’s Executive Order, which applies only to persons not domiciled in the United States, but only here temporarily or illegally.

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and dissenting opinions, underscoring the centrality of lawful, permanent residence

to the Court’s reasoning. See generally id.; Eastman, “Domicile”, supra, at 304-05.

The legal significance of “domicile” cannot be overstated. It is not mere physical

presence, but the lawful establishment of a “permanent home” with an intent to remain indefinitely—something fundamentally distinct from the transient presence of

sojourners. See, Eastman, “Domicile”, supra, at 305-06. Accordingly, the actual holding of Wong Kim Ark—the binding legal determination answering the specific question presented—is limited to the citizenship status of children born in the United

States to parents who were lawfully and permanently domiciled in the country. Statements in the opinion suggesting a broader application based solely on birth within

the territory exceed the factual predicate of the case and constitute non-binding dicta.

As Chief Justice Marshall explained in Cohens, “general expressions ... taken in connection with the case” but extending “beyond the case ... may be respected, but ought

not to control the judgment in a subsequent suit when the very point is presented for

decision.” Cohens, 19 U.S. (6 Wheat.) at 399, quoted in Wong Kim Ark, 169 U.S. at

679.

The lower courts’ and Respondents’ reliance on such dicta to assert that the

citizenship of children born to temporary visitors or illegal aliens is “well-settled” is

thus profoundly mistaken. This Court has never held that such children are automatically entitled to citizenship under the Fourteenth Amendment. Nor does the specific

and narrow holding of Wong Kim Ark compel that conclusion. Thus, far from being

an incidental detail, the domicile of Wong Kim Ark’s parents was indispensable to

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the Court’s reasoning. The Court's holding rests on the narrow ground of children

born to lawfully domiciled parents—not on a broad endorsement of unrestricted jus

soli. See Eastman, “Domicile,” supra, at 306.

II.

The Historical Evidence Cited By Respondents Is Inconclusive, at Best.

Respondents attempt to bolster their theory of automatic birthright citizenship

by citing a patchwork of historical sources ranging from early Supreme Court cases

to fragments of congressional debates and isolated comments from later decisions.

But none of these authorities, properly understood, support their position that the

law on this subject is “well-settled.”

A. Mischaracterization of Charming Betsy

CASA’s claim that in Murray v. The Schooner Charming Betsy, 6 U.S. (2

Cranch) 64, 119-20 (1804), the Supreme Court “assumed that all persons born in the

United States were citizens thereof,” is simply false. As the case notes, the individual

whose citizenship was at issue, Jared Shattuck, “was born in Connecticut before the

American revolution.” Id. at 65. He was therefore a British subject at birth who was

clearly subject to the English rule of jus soli. He became an American citizen (through

his parents) as a result of American success in the Revolutionary War, not because of

some American rule of birthright citizenship.

B. Misunderstanding of the limited import of Lynch v. Clarke and

Exaggeration of its solitary citation in the Congressional Globe

Respondents’ reliance on Lynch v. Clarke fares no better. See Lynch v. Clarke,

1 Sand. Ch. 583 (N.Y. Ch. 1844). The CASA brief asserts that Lynch “conclusively

show[ed] that all children born here are citizens without any regard to the political

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condition or allegiance of their parents.” See Resp’ts Br. 7. But Lynch was merely a

state court decision, issued pursuant to an express provision of the New York state

constitution that specifically adopted the English common law as controlling in New

York unless and until changed by the legislature. See N.Y. Const. art. I, § 14; Kurt T.

Lash, Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment’s

Citizenship Clause, at 19 n.70 (Feb. 22, 2025, rev. Apr. 17, 2025), available at

https://ssrn.com/abstract=5140319.

The citation of Lynch that CASA attributes generally to the Congressional

Globe appears to originate from a single reference by Representative William Lawrence during the 1866 Civil Rights Act debates, where Rep. Lawrence cited a supposed note in Kent’s Commentaries that does not mention Lynch. See Cong. Globe,

39th Cong., 1st Sess. 1832 (1866) (statement of Rep. Lawrence) (citing, e.g., 2 Kent

Comm. 278 note). Kent’s Commentaries stand for the opposite proposition, namely,

that not just birth but allegiance as well was necessary to confer automatic citizenship. See, James Kent, 2 Commentaries on American Law 4 n.(b) (1860) (10th ed.)

(“Natives are all persons born within the jurisdiction and allegiance of the United

States” (emphasis added); Lash, supra, at 44 & n.230.

Moreover, Representative Lawrence’s isolated reference to Lynch stands in

stark contrast to the text of the 1866 Civil Rights Act (“all persons born in the United

States and not subject to any foreign power” (emphasis added)), as well as explicit

statements made by the primary sponsors of the bill. Representative John Bingham,

explaining the 1866 Act’s language, clarified that it applied to those “born within the

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jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty.” Cong. Globe, 39th Cong., 1st Sess. at 1291 (statement of Rep. Bingham). Senator Lyman Trumbull, the Act’s sponsor, repeatedly echoed this, stating the goal was

“to make citizens of everybody born in the United States who owe allegiance to the

United States.” Cong. Globe, 39th Cong., 1st Sess. at 572 (statement of Sen. Trumbull); see also id. at 527. This requirement, rooted in consent and political allegiance

rather than the feudal concept of jus soli underlying Lynch, necessarily excluded

those whose allegiance was owed, through their parents, to a foreign power. See, e.g.,

id. ; Erler, supra, at 190-91; John C. Eastman, From Feudalism to Consent: Rethinking Birthright Citizenship, Heritage Found. Legal Mem. No. 18, at 7 (2006).

C. Misreading of Justice Story’s Commentaries on the Conflict of Laws

Respondents similarly mischaracterize Justice Joseph Story’s views on citizenship as reflected in his Commentaries on the Conflict of Laws. Resp’ts Br. 7. While

acknowledging Story’s view that a “reasonable qualification” of the birthright citizenship general rule was “that it should not apply to the children of parents, who were

in itinere in the country, or abiding there for temporary purposes, as for health, or

occasional business,” Respondents turn Justice Story’s caveat—that “[i]t would be

difficult, however, to assert, that in the present state of public law such a qualification

is universally established”—on its head, implying that Story meant that the general

rule of jus soli, rather than the exception for temporary sojourners, was what was

nearly universally established. Id. (quoting Joseph Story, Commentaries on the Conflict of Laws § 48, at 48 (1834)). Story’s observation that this specific qualification was

9

not “universally established” in the “present state of public law,” did not diminish the

importance he assigned to the principle itself—citizenship based on consent rather

than mere territorial birth. Story, Commentaries, § 48 at 48.

Story’s broader jurisprudence confirms this understanding. He recognized significant limitations on the application of English common law in America, explaining

that Americans adopted “only that portion which was applicable to their situation.”

Van Ness v. Pacard, 27 U.S. (2 Pet.) 137, 144 (1829); see also Erler, supra, at 179. In

cases such as Inglis v. Trustees of Sailor’s Snug Harbor, Story emphasized the revolutionary shift from the English doctrine of perpetual allegiance to a citizenship

founded upon consent and election. See Inglis v. Trustees of Sailor’s Snug Harbor, 28

U.S. (3 Pet.) 99, 155–61 (1830) (Story, J.) . There is hardly any greater conflict between the Common Law and the principles of the American founding than the repudiation of jus soli’s command of perpetual and non-renounceable allegiance to the

King. See Decl. of Ind. § 32 (declaring that the new American states are absolved of

all allegiance to the King). Thus, Respondents’ reliance on Story’s remark concerning

the contemporary state of public law to support near-automatic jus soli ignores the

fundamental direction and principles of his analysis regarding American citizenship.

D. Mischaracterization of Senator Conness’s Remarks on Citizenship

Respondents’ brief erroneously quotes Senator Conness’s statement about

“children of all parentage whatever” becoming citizens to suggest that Senator Conness supported a sweeping rule of birthright citizenship divorced from parental allegiance. Resp’ts Br. 8 (quoting Cong. Globe, 39th Cong., 1st Sess. at 2891). Read in

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context, however, just the opposite is the case. Senator Conness’s statement arose

during an exchange initiated by Senator Cowan, who raised concerns that the proposed constitutional language was too broad. In an attempt to politically derail the

Fourteenth Amendment, Senator Cowan asked whether it would extend citizenship

to the children of Chinese immigrants and Gypsies, and he specifically asked

whether, under the proposed Citizenship Clause, they were to have “more rights than

sojourners.” See Cong. Globe, 39th Cong., 1st Sess. at 2890-91 (statements of Sens.

Cowan and Conness). Senator Cowan’s question, distinguishing children born to Chinese immigrants and Gypsies from “sojourners,” necessarily presumes that the children of mere sojourners would not be entitled to automatic citizenship. Senator Conness’s response, therefore, also necessarily only applies to Chinese immigrants and

Gypsies who were not mere sojourners. As this is the only reference to “sojourners”

in the entire debate, the distinction drawn by Senator Cowan and apparently embraced by Senator Conness is extremely important, and it fully supports the provision

in President Trump’s executive order acknowledging that the Fourteenth Amendment does not confer citizenship on the children born to temporary visitors.

Moreover, the concerns raised by Senator Cowan prompted immediate and unambiguous clarification from the amendment’s principal sponsors. Senators Trumbull and Howard reaffirmed that the phrase “subject to the jurisdiction thereof” imposed a requirement of “complete jurisdiction” and undivided allegiance, thereby excluding children whose parents owed allegiance to a foreign power. See id. at 2893

(statement of Sen. Trumbull); id. at 2895 (statement of Sen. Howard).

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E. Overreliance on Dicta in several mid-20th century cases.

Respondents also rely on statements in several mid-20th century cases, including Hirabayashi v. United States, 320 U.S. 81 (1943); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957); INS. v. Errico, 385 U.S. 214 (1966); and INS

v. Rios-Pineda, 471 U.S. 444 (1985). Resp'ts Br. 9-10. Although all four include statements by the Court regarding the birth citizenship of children born in the United

States, in none of the cases are those statements a binding holding.

The Court in Hirabayashi, for example, stated that approximately two-thirds

of persons of Japanese descent subject to the challenged curfew order were “citizens

because born in the United States,” Hirabayashi, 320 U.S. at 90, 96. But this statement must be viewed in light of the case’s context and the status of Hirabayashi’s

parents. Both parents appear to have become domiciled in the United States prior to

the time of his birth. The Supreme Court decision itself acknowledges that Hirabayashi “was born in Seattle in 1918, of Japanese parents who had come from Japan

to the United States, and who had never afterward returned to Japan.” Id., 320 U.S.

at 84. The Densho Encyclopedia, a well-respected authority on Japanese-American

ancestry, reports that Hirabayashi’s father emigrated to the United States in 1907,

more than a decade before Hirabayashi’s birth, and that his mother followed in 1914,

still four years before his birth. Densho Encyclopedia, “Gordon Hirabayashi.”3 This

evidence and acknowledgement by the Court strongly suggests that Hirabayashi’s

parents, like Wong Kim Ark’s parents, had established permanent domicile in the

3 Available at https://encyclopedia.densho.org/Gordon_Hirabayashi/.

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United States prior to his birth. The Court’s general statement about the citizenship

of the larger group, made without analyzing the jurisdictional requirement for that

group, is best understood as dicta simply applying the established holding of Wong

Kim Ark regarding children born of lawfully domiciled parents, not as an extension

of automatic citizenship to children of temporary or unlawful aliens.

Hintopoulos and Rios-Pineda likewise involved statements about the citizenship of children born in the United States. See Hintopoulos, 353 U.S. at 73; RiosPineda, 471 U.S.at 446. But in both cases, the statements are pure dicta.

The issue in Hintopoulos was whether the parents could be deported even if

the child was an American citizen, as the Court stated (“assumed” would be the more

appropriate word) was the case. Had the Court responded negatively to that question,

then whether or not the child was in fact a citizen would have been necessary to decide, as the statute at issue required that the potential deportee have a close familial

relationship with a U.S. citizen. But the Court upheld the deportation order anyway,

despite its statement about the child being a citizen.

So, too, with Rios-Pineda. The Attorney General’s decision not to suspend deportation was expressly premised on the statutory discretion afforded to the Attorney

General, which could be exercised without “consider[ing] whether the threshold statute eligibility requirements [such as close familiar relationship to a citizen] are met.”

Id. at 449 (citing INS v. Bagamasbad, 429 U.S. 24 (1976)). The citizenship status of

the child—a statutory prerequisite—was therefore not at issue in the case, and the

Court’s statement about the child’s citizenship is therefore the purest form of dicta.

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See Cohens, 19 U.S. (6 Wheat.) at 399.

Errico is a bit different. The Court’s statements in the consolidated cases that

the children were citizens were necessary in light of the Court’s ultimate holding that

the respective parents could not be deported, as a close familial relationship to a citizen was one of the prerequisites for the statutory exemption from deportation at

issue. These statements are thus not technically dicta, as was the case with the statements in Hintopoulos and Rios-Pineda discussed above. But the statements are not

a binding holding for another reason. The citizenship of the children was not contested, and the Court conducted no analysis whatsoever of whether children born to

immigrants in the country illegally were automatically citizens by virtue of the Fourteenth Amendment. It is well established that “[q]uestions which merely lurk in the

record, neither brought to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute precedents.” Webster, 266 U.S.

at 511. Therefore, the unanalyzed assumption in Errico cannot be treated as binding

precedent.

Moreover, even if otherwise, these cases show that, at most, the more expansive reading of Wong Kim Ark advanced by Respondents had begun to take root by

the 1950s—more than a half century after the Wong Kim Ark decision and more than

80 years after adoption of the Fourteenth Amendment. They tell us little, therefore,

about the original public meaning of the Fourteenth Amendment, particularly when

the obiter dictum statements stand in such stark contrast to this Court’s decisions in

14

The Slaughter-House Cases and Elk v. Wilkins that were issued in much closer proximity to the adoption of the Amendment.

III.

The Contrary Evidence is Compelling.

A. The American Revolution Rejected the Feudal Doctrine of Birthright Subjectship in Favor of Citizenship Based on Consent and Allegiance.

Understanding the Citizenship Clause of the Fourteenth Amendment § 1re-

quires appreciating the revolutionary break from English feudal concepts of subjectship. The modern notion of automatic birthright citizenship based solely on the accident of location at birth is an inheritance from the English common law doctrine of

natural-born subjectship—a doctrine fundamentally at odds with American constitutional principles. See Erler, supra, at 170-72.

Under English common law, as articulated in Calvin’s Case, 7 Co. Rep. 1a, 77

Eng. Rep. 377 (K.B. 1608), and William Blackstone’s Commentaries, birth within the

King’s dominions automatically rendered one a “natural-born subject.” See William

Blackstone, Commentaries on the Laws of England 1:366-70 (1765). Blackstone described this natural allegiance as a “debt of gratitude” that could not be “forfeited,

cancelled, or altered, by any change of time, place, or circumstance.” Id. at 357-58.

This bond of allegiance was perpetual and indissoluble—a feudal tie grounded in the

hierarchical relationship between subject and sovereign, rather than in any voluntary

act of consent.

This conception explicitly denied the right of expatriation. Once born a subject,

a person remained a subject for life, regardless of any later wishes or actions. See id.;

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see also, Erler, supra, at 179.

The American Revolution constituted a fundamental repudiation of this feudal

model. The Declaration of Independence proclaimed that governments derive “their

just powers from the consent of the governed,” and that the people possess an inherent right to “alter or abolish” any government destructive of their rights. The Declaration of Independence ¶ 2, 1 Stat. 1 (1776). And if that were not a clear enough repudiation of the English rule of perpetual allegiance, the Declaration’s closing paragraph is unmistakable. It declared “That these United Colonies are, and of Right

ought to be Free and Independent States; [and] that they are Absolved from all Allegiance to the British Crown ….” Id. ¶ 32 (emphasis added).

As Jefferson wrote even prior to 1776, the right of expatriation—the right “of

departing from the country in which chance, not choice, has placed them”—is a natural right inherent in all men. See Thomas Jefferson, A Summary View of the Rights

of British America (1774), quoted in Erler, supra, at 169. The very act of declaring

independence, absolving the colonies from all allegiance to the British Crown, was an

exercise of this natural right, and a rejection of perpetual allegiance imposed by mere

accident of birth and the English doctrine of jus soli.

Thus, the Revolution transformed the legal conception of political membership

from one based on birthright subjectship to one based on mutual consent. Citizenship

in the American republic became predicated not on geographical happenstance, but

on voluntary allegiance to a political community that itself consents to the individual’s membership. See Erler, supra, at 182.

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The Expatriation Act of 1868, enacted contemporaneously with the Fourteenth

Amendment, confirmed this understanding. It declared that “the right of expatriation

is a natural and inherent right of all people,” and that “any declaration, instruction,

opinion, order, or decision of any officer of the United States which denies, restricts,

impairs, or questions the right of expatriation, is inconsistent with the fundamental

principles of the Republic.” Act of July 27, 1868, ch. 249, § 1, 15 Stat. 223. Congress

thereby decisively repudiated the feudal doctrine of perpetual allegiance upon which

the English rule of jus soli had rested.

Accordingly, any interpretation of the Citizenship Clause must proceed from

this foundational principle of mutual consent and allegiance, not from the feudal doctrine of perpetual subjectship imposed by location of birth.

B. Antebellum Law Confirmed That Citizenship Depended on Allegiance, Not Mere Birthplace

The revolutionary shift from perpetual subjectship to citizenship by consent

was not merely rhetorical. It shaped American law throughout the antebellum period.

Courts, lawmakers, and legal commentators recognized that allegiance—often determined by parental status and the voluntary assumption of political obligations—was

critical to citizenship.

Early decisions illustrate that the place of birth was not always dispositive for

determining citizenship. In Inglis, 28 U.S. (3 Pet.) at 99, this Court considered the

citizenship of a person born in New York near the time of the Declaration of Independence. The Court held that the son’s “election and character followed that of his

father,” who had remained loyal to Britain. Id. at 126. Because the father maintained

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allegiance to Britain, the son was deemed a British subject—despite being born

within the United States—unless he affirmatively disavowed that allegiance upon

reaching majority, which he failed to do. Id. at 159–61. This approach, focusing on

parental allegiance overriding birthplace, sharply departed from the English rule of

automatic and irrevocable allegiance based solely on location of birth.

Similarly, in Minor v. Happersett, 88 U.S. 162 (1875), decided several years

after the Fourteenth Amendment’s ratification, this Court reviewed the understanding of citizenship as it existed prior to the Amendment. Chief Justice Waite, writing

for the Court, observed that while it was “never doubted that all children born in a

country of parents who were its citizens became themselves ... citizens,” as for the

distinct group of those “born within the jurisdiction without reference to the citizenship of their parents ... there have been doubts.” Id. at 167-68 (emphasis added).

C. The 1866 Civil Rights Act, which the 14th Amendment was designed

to codify and constitutionalize, clearly excluded children who,

through their parents, were subject to a foreign power.

Further compelling evidence that the Fourteenth Amendment was not intended to grant automatic citizenship based merely on birth location comes from its

direct statutory precursor, the Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27.

Enacted by the same Congress that framed the Fourteenth Amendment, the Act

sought to secure citizenship for the freedmen following the abolition of slavery. Its

opening sentence defined the prerequisites for citizenship: “That all persons born in

the United States and not subject to any foreign power, excluding Indians not taxed,

are hereby declared to be citizens of the United States ....” Id. (emphasis added).

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By conditioning citizenship on being “not subject to any foreign power,” the Act

plainly excluded children born on U.S. soil to parents who remained citizens or subjects of another nation and thus owed allegiance elsewhere. Lash, supra, at 35-41.

During the debates, Senator Lyman Trumbull, the Act’s sponsor, confirmed this understanding, explaining that the clause referred to those who owed allegiance solely

to the United States. See id. at 38-40 (citing Cong. Globe, 39th Cong., 1st Sess. at

572). Representative John Bingham, a key figure in drafting the Act, was even more

direct, stating the understanding derived from the Constitution itself was that “every

human being born within the jurisdiction of the United States of parents not owing

allegiance to any foreign sovereignty is ... a natural-born citizen.” Cong. Globe, 39th

Cong., 1st Sess. at 1291 (statement of Rep. Bingham) (emphasis added), quoted in

Lash, supra, at 42.

Recognizing that a statute might be repealed or declared unconstitutional (particularly in light of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)), the framers

sought to embed these principles, including the allegiance requirement, into the Constitution via the Fourteenth Amendment. Erler, surpa, at 170. The shift in phrasing

from the Act’s “not subject to any foreign power” to the Amendment’s “subject to the

jurisdiction thereof” was considered by Senator Trumbull to be a “better” formulation

intended to achieve the “same object”—namely, ensuring citizenship was conferred

only upon those owing full allegiance to the United States. Cong. Globe, 39th Cong.,

1st Sess. at 2894 (statement of Sen. Trumbull); see also Lash, supra, at 48. Thus, the

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Civil Rights Act of 1866 demonstrates the contemporaneous congressional understanding that citizenship required more than birth; it required an allegiance inconsistent with being subject, through one’s parents, to a foreign power.

D. Key Proponents of the 14th Amendment expressly stated that “subject to the jurisdiction” meant complete jurisdiction, not merely partial, territorial jurisdiction.

Any ambiguity surrounding the phrase “subject to the jurisdiction thereof” was

definitively resolved during the Senate debates by the Amendment’s chief proponents. They made their intended meaning abundantly clear: the phrase required the

full political allegiance associated with citizenship, not merely the partial, territorial

jurisdiction applicable to all persons physically present within the United States.

This crucial distinction was not hinted at; it was explicitly articulated.

Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, when

pressed on the phrase's meaning, particularly concerning Indian tribes, was unequivocal: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing

allegiance to anybody else. That is what it means.” Cong. Globe, 39th Cong., 1st Sess.

at 2893 (statement of Sen. Trumbull) (emphasis added). He reinforced this by stating

it excluded those owing even “partial allegiance ... to some other Government,” because they were not subject to the “complete jurisdiction of the United States.” Id.

(emphasis added); Lash, supra, at 52. Trumbull specifically distinguished this required “complete jurisdiction” from the mere amenability to laws or treaties that

might apply to those not fully within the political community. Id.

Senator Jacob Howard, who introduced the specific language of the Citizenship

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Clause, was equally clear. He insisted that “jurisdiction” as used in the amendment

“ought to be construed so as to imply a full and complete jurisdiction ... that is to say,

the same jurisdiction in extent and quality as applies to every citizen of the United

States now.” Id. at 2895 (1866) (statement of Sen. Howard) (emphasis added); see also

id. at 2890. This understanding was so apparent to those present that Senator

Reverdy Johnson could confidently state, “Now, all that this amendment provides is,

that all persons born in the United States and not subject to some foreign Power—for

that, no doubt, is the meaning of the committee who have brought the matter before

us—shall be considered citizens of the United States.” Id. at 2893 (statement of Sen.

Johnson) (emphasis added).

These explicit, contemporaneous explanations by the Amendment’s leading

proponents leave no room for doubt. They intended “subject to the jurisdiction

thereof” to signify a complete political attachment and allegiance to the United

States, fundamentally distinct from the mere temporary or territorial jurisdiction

that obligates aliens and visitors to obey local laws. Erler, supra, at 167-68.

E. This Court’s initial decisions interpreting the Citizenship Clause

recognized that the “subject to the jurisdiction” restriction excluded

children whose parents owed allegiance to a foreign power or a domestic Indian tribe.

This Court’s earliest interpretations of the Citizenship Clause align with the

framers’ understanding that being “subject to the jurisdiction” meant complete political allegiance. In The Slaughter-House Cases, decided just four years after the

Amendment’s ratification, the Court observed (albeit in dicta) that the phrase “sub-

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ject to its jurisdiction” was intended “to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1872) (emphasis added).

This understanding, requiring more than mere birth on U.S. soil, became holding in Elk v. Wilkins, 112 U.S. 94 (1884). There, this Court held that John Elk, an

American Indian born within the territorial United States but who owed allegiance

to his tribe at birth, was not a citizen under the Fourteenth Amendment. Id. at 109.

The Court reasoned that being “subject to the jurisdiction thereof” required being

“completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Id. at 102. Because Elk owed allegiance at birth to his tribe—an “alien, though dependent, power”—he was not subject to the complete jurisdiction of the

United States in the manner required by the Amendment. Id. at 99, 102. Thus, this

Court’s initial encounters with the Citizenship Clause recognized that the jurisdictional requirement excluded those, like Elk, whose allegiance lay with another sovereign, whether foreign or domestic tribal. See Lash, supra, at 66–68.

F. The leading treatise writer and the Secretary of State in the years

shortly after the adoption of the 14th Amendment agreed.

This interpretation, requiring complete allegiance for birthright citizenship,

was shared by leading commentators and executive officials in the years immediately

following the Fourteenth Amendment’s adoption. Thomas Cooley, perhaps the most

prominent constitutional treatise writer of the era, wrote that being “subject to the

jurisdiction thereof” meant “that full and complete jurisdiction to which citizens generally are subject, and not any qualified or partial jurisdiction, such as may consist

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with allegiance to some other government.” Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 243 (1880).

The Executive Branch, responsible for implementing citizenship law, concurred. Decisions by Secretaries of State in the 1880s concluded that children born to

parents only temporarily within the United States, lacking the intent to establish

permanent domicile and thus not fully submitting to U.S. jurisdiction, were not citizens by birth. See Wong Kim Ark, 169 U.S. at 719 (Fuller, C.J., dissenting) (citing

opinions of Secretary Frelinghuysen in Hausding’s case (1885) and Secretary Bayard

in Greisser’s case). These early interpretations by leading jurists and executive officers charged with applying the law further demonstrate that the original understanding of the Citizenship Clause required more than mere birth within the territorial

boundaries of the United States; it required being born subject to its complete political jurisdiction and allegiance. See Lash, supra, at 61-64.

IV.

For Nearly 100 Years After Adoption of the 14th Amendment, Both Congress and the Executive Branch Recognized That More Than Birth

Alone Was Necessary For Automatic Citizenship.

A. Indian Citizenship Act of 1924

Perhaps the clearest legislative example that the political branches of govern-

ment did not read Wong Kim Ark or the 14th Amendment itself as conferring citizenship based on birth alone is the Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253

(codified as amended at 8 U.S.C. § 1401(b)). This Act declared that “all noncitizen

Indians born within the territorial limits of the United States be, and they are hereby,

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declared to be citizens of the United States.” Id. The very necessity of this Act demonstrates that Congress did not believe the Fourteenth Amendment had automatically

conferred citizenship upon all Native Americans born within the United States after

1868, or that Wong Kim Ark had done so, either.

If the broad interpretation of the Citizenship Clause advanced by Respondents—equating “subject to the jurisdiction” with mere territorial presence—were correct, the 1924 Act would have been entirely superfluous. Those individuals whom it

purported to make citizens would have already been citizens by virtue of the Fourteenth Amendment itself. However, Congress understood, consistent with this

Court’s decision in Elk, 112 U.S. at 102, that Native Americans born into tribal allegiance were not automatically “subject to the jurisdiction” of the United States in the

complete political sense required by the Amendment. The 1924 Act was thus a legislative grant of citizenship under Congress’s Article I naturalization power, enacted

precisely because the Fourteenth Amendment’s constitutional grant did not reach all

Native Americans born within U.S. territory. Lash, supra, at 26. This congressional

action, nearly 60 years after the Fourteenth Amendment’s ratification, powerfully

confirms that the Amendment’s scope was understood to be limited by allegiance, not

defined solely by birthplace.

Ipso facto, then, children born to parents who continued to owe allegiance to

their home countries—foreign powers—are necessarily not “subject to the jurisdiction” of the United States in the full, complete sense intended by that clause. The

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Indian tribes were, after all, considered at the time to be “domestic dependent nations” “in a state of pupilage.” Cherokee Nation v. State of Ga., 30 U.S. 1, 17 (1831);

see also, e.g., Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554, 572 (2018)

(“Tribes are ‘domestic dependent nations’”). If anything, children born to members of

Indian tribes had a stronger claim to being “subject to the jurisdiction” of the United

States than children born to foreign subjects temporarily in the United States because the tribes themselves, unlike foreign nations, were “completely under the sovereignty and dominion of the United States.” Elk, 112 U.S. at 122. Yet this Court held

even that did not qualify for automatic citizenship.

B. The Depression-Era Repatriation

A negative inference can also be drawn from the historical example of the repatriation of Mexican workers that occurred following the stock market crash in October 1929 and ensuing “Great Depression.” As the California legislature has recently

recognized, an estimated “two million people of Mexican ancestry were forcibly relocated to Mexico, approximately 1.2 million of whom had been born in the United

States” and would therefore be citizens under the expansive interpretations advanced

by Respondents here. See SB 670, Apology Act for the 1930s Mexican Repatriation

Program, Cal. Gov’t Code § 8720 et seq. (added by Stats. 2005, ch. 663, § 1). Yet to our

knowledge, not a single case was ever brought at the time claiming that the children

born in the United States to those who had come as temporary workers in the “Roaring Twenties” and who retained their Mexican citizenship could not be removed because they were citizens. Such silence is deafening.

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C. Passport forms requiring “status of parents at birth” until 1966

Another indication that mere birth on U.S. soil was not understood to confer

automatic citizenship appears in pre-1966 passport application requirements. At that

time, regulations required applicants to disclose not only their own birth details but

also their father’s name, date and place of birth, and residence. If the father was

foreign-born, the application required information on his immigration and naturalization status. See, e.g., 22 C.F.R. § 20 (1938), citing Rev. Stat. § 4076 (1878), codified

at 22 U.S.C. § 212. If place of birth alone sufficed under a “well-settled” interpretation

of the Citizenship Clause, such disclosures would have been unnecessary. The federal

government’s continued emphasis on parental status confirms that it did not view

birthplace as dispositive. The 1966 change—unaccompanied by any contemporaneous

legal development—reflects a bureaucratic revision, not a constitutional one.

CONCLUSION

This Court should not only stay the universal injunctions issued by the lower

courts, it should resolve the merits question, and hold that the “subject to the jurisdiction” requirement of the Fourteenth Amendment’s Citizenship Clause requires, as

its drafters expressly noted, a complete jurisdiction, not merely a territorial jurisdiction, and therefore does not confer automatic citizenship on the children of temporary

sojourners or those present in the United States illegally.

April 2025

Respectfully submitted,

John C. Eastman

Alexander Haberbush

CONSTITUTIONAL COUNSEL GROUP

444 W Ocean Blvd, Ste 1403

26

Long Beach, CA 90802

(909) 257-3869

jeastman@ccg1776.com

Counsel for Amicus Curiae

The Claremont Institute’s

Center for Constitutional Jurisprudence