Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.

Supreme Court briefJan 27, 2026

Ask Donna

What actually matters in this document.

Text

i

No. 25-365

In the

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL, Petitioners,

v.

BARBARA, ET AL, Respondents.

DONALD J.

D D DON- DO D D DONALD

On

Writ

of

Certiorari Before Judgment to the

TRUMP, ET

O O ALD J. NA O O J. TRUMP,

U.S. Court of Appeals for the First Circuit

AL.,

N N TRUM

LD

N N

ET AL.,

Petition- BRIEF

A A P, ET

J. CURIAE

A A

PetiOF AMICUS

ers,

L L

AL.,

T

R

L

L

tionTHE CLAREMONT INSTITUTE’S CENTER

v. CONSTITUTIONAL

D D Pe

UM D D

ers,

FOR

JURISPRUDENCE

J J ti- OF PETITIONERS

P,

J J

v.

STATE OF

IN SUPPORT

.

.

tio

ET

.

.

WASHINGSTATE OF

T T ne

AL. T T

TON, ET AL,

WASHINGR R rs, JOHN C.

, EASTMAN

R R

RespondTON, ET

Counsel

of

Record

U U

v.

P

U

U

AL,

ents.

ALEXANDER HABERBUSH

M M

e

M M RespondSTATE

Constitutional Counsel Group

P P

t

P

P ents.

OF444 W.

Ocean Blvd.,

Suite 1403

, , WASH

Long iBeach,, CA, 90802

E E INGTO

E E

(562) t435-9062

T T N, ET

i

T

T

jeastman@ccg1776.com

A A

o

A A

AL,

L L Ren

L

L

Counsel for Amicus

Curiae

The

Claremont

. . spond e

., ., Institute’s

Center ,for, Constitutional

Jurisprudence

r

P P

ents.

P P

s

e e

e e

,

t t

t t

v. i i

i i

t

ST t

t t

i i

AT

i i

o o

E

o o

n n

OF

n n

W e e

e e

r

AS r

r r

s s

HI

s s

,

NG ,

, ,

v v

TO

v v

. .

N,

. .

ET

S S

AL,

i

TABLE OF CONTENTS

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

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

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

ARGUMENT ...............................................................4

I. The Lower Court’s Claim that the Citizenship

Clause Confers Automatic Citizenship on the

Children of Temporary Visitors and Illegal Aliens

is Neither Settled Law Nor Correct. ..................... 4

A. Wong Kim Ark did not consider whether

the Citizenship Clause conferred

automatic citizenship on the children of

temporary visitors or illegal aliens. ................ 5

B. Subsequent References to Wong Kim Ark

By This Court Are Likewise Dicta .................. 7

C. The Historical Evidence Cited By The

Lower Courts Is Inconclusive, at Best. ......... 12

i.

Mischaracterization of Gardner v. Ward...... 13

ii. Overreliance on Lynch v. Clarke .................. 14

iii. Misunderstanding of Senator Conness’s

Remarks on Citizenship ................................ 15

II. The Contrary Evidence is Compelling. ............... 16

A. The American Revolution Rejected the

Feudal Doctrine of Birthright Subjectship

in Favor of Citizenship Based on Consent

and Allegiance ............................................... 16

i.

English Common Law and Perpetual

Allegiance ...................................................... 16

ii

ii. The American Revolution and the Shift to

Citizenship by Consent ................................. 17

B. Antebellum Law Confirmed That

Citizenship Depended on Allegiance, Not

Mere Birthplace ............................................. 18

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. ......................................... 20

D. Key Proponents of the 14th Amendment

expressly stated that “subject to the

jurisdiction” meant complete jurisdiction,

not merely partial, territorial jurisdiction. .. 22

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. ................................................... 24

F. The leading treatise writer and the

Secretary of State in the years shortly

after the adoption of the 14th Amendment

agreed. ........................................................... 25

III.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. ....... 26

A. Indian Citizenship Act of 1924 ..................... 26

B. The Depression-Era Repatriation ................ 27

iii

C. Passport forms requiring “status of

parents at birth” until changed,

inexplicably, in 1966. .................................... 28

CONCLUSION .......................................................... 29

iv

TABLE OF AUTHORITIES

Cases

Calvin’s Case,

7 Co. Rep. 1a, 77 Eng. Rep. 377 (K.B. 1608). ........ 16

CASA, Inc. v. Trump,

763 F. Supp. 3d 723 (D. Md. 2025) ...................... 3, 4

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) ........................... 6, 10

Doe v. Trump,

157 F.4th 36 (1st Cir. 2025) .................................... 8

Doe v. Trump,

766 F. Supp. 3d 266 (D. Mass. 2025) .................. 3, 4

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857) ................................. 22

Elk v. Wilkins,

112 U.S. 94 (1884)............................ 2, 11, 24, 25, 27

Hamdi v. Rumsfeld,

542 U.S. 507 (2004).................................................. 1

Hirabayashi v. United States,

320 U.S. 81 (1943)................................................ 8, 9

Inglis v. Trustees of Sailor’s Snug Harbor,

28 U.S. (3 Pet.) 99 (1830) ................................. 18, 19

INS v. Bagamasbad,

429 U.S. 24 (1976).................................................. 10

INS v. Errico,

385 U.S. 214 (1966)............................................ 8, 10

INS v. Rios-Pineda,

471 U.S. 444 (1985).................................. 8, 9, 10, 11

v

Ludlam v. Ludlam,

1860 WL 7475 (N.Y. Gen. Term. 1860) ................. 14

Ludlam v. Ludlam,

26 N.Y. 356 (1863) ................................................. 14

Lynch v. Clarke,

1 Sand. Ch. 583 (N.Y. Ch. 1844) ..................... 14, 20

Minor v. Happersett,

88 U.S. 162 (1875).................................................. 19

Russello v. United States,

464 U.S. 16 (1983).................................................. 12

The Slaughter-House Cases,

83 U.S. (16 Wall.) 36 (1872) ........................ 2, 11, 24

Trump v. CASA, Inc.,

606 U.S. 831 (2025).......................... 1, 2, 4, 5, 14, 15

United States ex rel. Hintopoulos v. Shaughnessy,

353 U.S. 72 (1957).......................................... 8, 9, 11

United States v. Wong Kim Ark,

169 U.S. 649 (1898)............. 1-7, 9, 11, 12, 13, 26, 28

Van Ness v. Pacard,

27 U.S. (2 Pet.) 137 (1829). .................................... 20

Washington v. Trump,

765 F. Supp. 3d 1142 (W.D. Wash.) ........................ 4

Washington v. Trump,

145 F.4th 1013 (9th Cir. 2025) ........ 5, 12, 13, 14, 15

Webster v. Fall,

266 U.S. 507 (1925)................................................ 11

Statutes and Constitutional Provisions

8 U.S.C. § 1401(b) ...................................................... 26

vi

Act of July 27, 1868, ch. 249, § 1, 15 Stat. 223 ......... 18

Civil Rights Act of 1866, ch. 31, § 1,

14 Stat. 27 .............................................. 2, 20, 21, 22

Rev. Stat. § 4076 (1878), codified at

22 U.S.C. § 212....................................................... 28

SB 670, Apology Act for the 1930s Mexican

Repatriation Program, Cal. Gov't Code § 8720 et

seq. (added by Stats. 2005, ch. 663, § 1)................ 28

The Declaration of Independence,

1 Stat. 1 (1776) ................................................... 3, 17

U.S. Const. amend. XIV § 1 ("Citizenship

Clause") ................................... 1-5, 12, 16, 18, 23-29

U.S. Const. amend. XIV § 1 (Equal Protection

Clause ..................................................................... 12

U.S. Const. Art. I, § 8, cl. 4 ................................. 27, 30

Other Authorities

22 C.F.R. § 20 (1938) ................................................. 28

22 C.F.R. § 51.42 ....................................................... 29

31 Fed.Reg. 13537, 13542 (§ 51.43) .......................... 29

Act of 1924. Act of June 2, 1924, ch. 233,

43 Stat. 253 ............................................................ 26

Blackstone, William, 1 Commentaries (1765). ... 16, 17

Cooley, Thomas M., The General Principles of

Constitutional Law in the United States of

America 243 (1880) ................................................ 25

vii

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) ........................... 1

Eastman, John C., The Significance of “Domicile” in

Wong Kim Ark, 22 CHAP. L. REV. 301 (2019) ...... 2, 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) ................................ 1, 16, 17, 20, 22, 24

Jefferson, Thomas, A Summary View of the Rights of

British America (1774) .......................................... 17

Lash, Kurt T., Prima Facie Citizenship: Birth,

Allegiance and the Fourteenth Amendment’s

Citizenship Clause (Feb. 22, 2025, rev. Apr. 17,

2025) ................................... 14, 21, 22, 23, 25, 26, 27

Lyon, Cherstin M., “Gordon Hirabayashi,”

Densho Encyclopedia (2024).................................... 9

Madison, James, Essay “On Sovereignty”

(ca. 1835) ................................................................ 17

Story, Joseph, Commentaries on the Conflict of

Laws (1834) ............................................................ 20

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

Rules

Sup. Ct. Rule 37.6........................................................ 1

1

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

Trump v. CASA, Inc., 606 U.S. 831 (2025), and Hamdi

v. Rumsfeld, 542 U.S. 507 (2004). 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 AMERICAN 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.

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 amici curiae made a monetary contribution to fund the preparation and submission of this brief.

2

L. REV. 301 (2019). Amicus believes that this significant body of historical scholarship will be of benefit to

the Court.

SUMMARY OF ARGUMENT

The court below, the several other forum-shopped

courts that have addressed the President’s “Protecting

the Meaning and Value of American Citizenship” Executive Order, and even three Justices of this Court in

their dissenting opinions in Trump v. CASA, all asserted that the text of the Fourteenth Amendment’s

Citizenship Clause, U.S. Const. amend. XIV § 1, is

“plain,” “unequivocal,” and “clear,” and that the issue

of whether that Clause conferred automatic citizenship on the children of temporary visitors or illegal immigrants was definitively settled by the Court in

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

Neither assertion is true. In fact, the opposite is true.

The Citizenship Clause, as understood by those

who drafted and ratified it, required that the parents

of children born on U.S. soil be subject to the complete

jurisdiction of the United States, not a mere partial or

territorial jurisdiction. The Fourteenth Amendment

codified and constitutionalized the language of the

1866 Civil Rights Act, which expressly conferred automatic citizenship only on children born to parents

who were not subject to any foreign power.

This understanding was recognized by this Court

in The Slaughter-House Cases, 83 U.S. (16 Wall.) 36,

73 (1872), and upheld in Elk v. Wilkins, 112 U.S. 94

(1884). It was confirmed by the leading treatise writers of the day. And it was put into effect by Executive

Branch officials in the 1880s rejecting the claims of

3

citizenship advanced by children who had been born

to temporary visitors from other countries.

This Court’s holding in Wong Kim Ark is not to the

contrary, as the case involved a claim of citizenship by

an individual born in the United States to parents

who were lawfully and permanently domiciled in the

United States at the time of his birth. The case did not

involve children of temporary visitors or the children

of parents who were present in the country unlawfully—the two categories of individuals covered by the

President’s Executive Order. Any language in the decision suggesting that such individuals are also covered by the Citizenship Clause is simply dicta, as at

least one of the lower courts addressing the President’s executive order acknowledged. Doe v. Trump,

766 F. Supp. 3d 266, 280 (D. Mass. 2025) (subsequent

history omitted); cf. CASA, Inc. v. Trump, 763 F.

Supp. 3d 723, 738 (D. Md. 2025) (subsequent history

omitted) (even if the broad language in Wong Kim Ark

was dicta, the district court was “not free to ignore”

it).

More fundamentally, the claim that the Fourteenth Amendment codified the English feudal rule of

jus soli, and that jus soli was the rule that prevailed

in the United States from the beginning of its existence as a separate nation, is simply incompatible with

the doctrine of consent articulated in the Declaration

of Independence and the Declaration’s explicit rejection of the perpetual allegiance that jus soli required.

4

ARGUMENT

I.

The Lower Court’s Claim that the Citizenship Clause Confers Automatic Citizenship

on the Children of Temporary Visitors and

Illegal Aliens is Neither Settled Law Nor

Correct.

The court below, as well as the several other forum-shopped courts to have considered the issue and

the dissenting opinions of three Justices of this Court

in Trump v. CASA, Inc., 606 U.S. 831 (2025), all

treated the question whether the Citizenship Clause

of the Fourteenth Amendment confers automatic citizenship on the children born in the United States to

temporary visitors or illegal aliens as “settled” law

based on “plain,” “clear,” and “unequivocal” text and

controlling precedent of this Court, when it is not. See,

e.g., App.33a; CASA, 606 U.S. at 883, 891, 899 (Sotomayor, J., joined by Kagan and Jackson, Jj., dissenting)2 (“clear” and “clearly established”); id. at 936, 940

(2025) (Jackson, J., dissenting) (“unequivocal”;

“plainly wr[itten] into the Constitution”).3 Not only

did this Court not “settle” the question in Wong Kim

Ark or in any case since, the historical record does not

support such a conclusion.

2 Unless otherwise noted, subsequent references to CASA herein

are to Justice Sotomayor’s dissenting opinion.

3 See also, e.g., Doe, 766 F. Supp. 3d at 278 (subsequent history

omitted); Washington v. Trump, 765 F. Supp. 3d 1142, 1149,

1151 (W.D. Wash.) (subsequent history omitted); CASA, Inc. v.

Trump, 763 F. Supp. 3d 723, 733 (D. Md. 2025), stay granted in

part by Trump v. CASA, Inc., 606 U.S. 831 (2025) (subsequent

history omitted).

5

A. Wong Kim Ark did not consider whether

the Citizenship Clause conferred automatic citizenship on the children of temporary visitors or illegal aliens.

The lower court here and in the parallel cases, as

well as the three dissenting Justices in CASA, 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 recognize in English feudal law of children born to diplomats or soldiers in occupying armies. See, e.g.,

App.33a; CASA, 606 U.S. at 884-85. In doing so, they

ignore the critical fact of Wong Kim Ark’s parents’

lawful and permanent domicile. In one of the parallel

cases, the Ninth Circuit erroneously described that

critical fact as merely incidental, incorrectly asserting

that “domicile did not play a significant role in the

Court’s analysis of the Citizenship Clause’s requirements.” Washington v. Trump, 145 F.4th 1013, 1030

(9th Cir. 2025). This characterization ignores both the

Court’s framing of the issue presented in the case and

the established principles distinguishing holding from

dicta.

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

6

analysis. Id. at 650-53. The terms “domicile,” “domiciled,” “permanent domicile,” and “domiciled residents” appear nearly thirty times throughout the majority and dissenting opinions, underscoring the centrality of lawful, permanent residence to the Court’s

reasoning. See generally id.; Eastman, The Significance of “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, visitors, or temporary residents. See Eastman,

Significance of “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

without regard to parental allegiance or domicile exceed the factual predicate of the case and constitute

non-binding dicta. As Chief Justice Marshall explained in Cohens v. Virginia, “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 v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821), quoted in

Wong Kim Ark, 169 U.S. at 679.

The reliance on such dicta by the lower court here

and elsewhere, and by the dissenters in CASA, to assert that the citizenship of children born to temporary

7

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.

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

the Court’s holding. The lower court’s treatment of

Wong Kim Ark as controlling on an issue not addressed in that decision is simply incorrect.

B. Subsequent References to Wong Kim Ark

By This Court Are Likewise Dicta

The CASA dissenters claimed that this Court “has

repeatedly reaffirmed Wong Kim Ark’s holding” of

near-universal birthright citizenship. CASA, 606 U.S.

at 885-86. But the passing references are also dicta in

four of the cases they cite, and a non-binding assumption in the fifth.

In Morrison v. California, for example, Justice

Cardozo, for the Court, stated in passing that a “person of the Japanese race is a citizen of the United

States if he was born within the United States.” Morrison v. California, 291 U.S. 82, 85 (1934) (citing Wong

Kim Ark). This passing reference to Wong Kim Ark

does not even correctly state the purported holding of

Wong Kim Ark as the CASA dissenters asserted it to

be, for it ignores the exceptions of children of diplomats and invading armies that even they

acknowledge. Moreover, the very next sentence in the

case states that “[h]e is a citizen, even though born

abroad, if his father was a citizen….” Id. There is absolutely no discussion of whether Mr. Doi, the individual of Japanese ancestry who was one of the criminal

defendants in the case, was a citizen by birth in the

8

United States, birth abroad to a citizen father, or not

a citizen at all. Instead, the case addressed whether

California’s statutory requirement shifting the burden of proving citizenship to a criminal defendant

comported with due process. Such dicta, if it can even

be described as rising to that level, does not remotely

qualify as a holding reaffirming what the CASA dissenters assert to be the holding of Wong Kim Ark.

The CASA dissenters also relied on statements in

four other mid- to late-20th century cases. CASA, 606

U.S. at 884-85 (citing Hirabayashi v. United States,

320 U.S. 81, 96-97 (1943); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73 (1957); INS

v. Errico, 385 U.S. 214, 215-16 (1966); and INS v.

Rios-Pineda, 471 U.S. 444, 446 (1985). So do Respondents. Resp. Br. in Opp. To Cert, at 31 (citing Hintopoulos and also Rios-Pineda and Errico as the cases cited

in Doe v. Trump, 157 F.4th 36, 77 (1st Cir. 2025)). 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 Ja-

9

pan to the United States, and who had never afterward returned to Japan.” Hirabayashi, 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. Cherstin M. Lyon, “Gordon Hirabayashi,” Densho Encyclopedia (2024) .4 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

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 parents lawfully domiciled in

the United States, 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

(the child is, of course, an American citizen by birth”);

Rios-Pineda, 471 U.S.at 446 (“By that time, respondent wife had given birth to a child, who, born in the

United States, was a citizen of this country.”). 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

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

4

10

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. See Cohens v. Virginia, 19 U.S. (6

Wheat.) at 399 (“general expressions, in every opinion,

are to be taken in connection with the case in which

those expressions are used”).

Errico is a bit different. The Court’s statements in

the consolidated cases that the children were citizens

(in Errico, that “A child was born to the couple in 1960

and acquired United States citizenship at birth,”

Errico, 385 U.S. at 215, and in Scott, that “After entering the United States in 1958, she gave birth to an

illegitimate child, who became an American citizen at

birth,” id. at 216), were necessary in light of the

Court’s ultimate holding that the respective parents

could not be deported, as a close familial relationship

11

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 (in Errico, by making

a material misrepresentation on his visa application;

in Scott, by entering into a sham marriage) were automatically citizens by virtue of the Fourteenth

Amendment. It is well established that questions

merely assumed or passed over without consideration

do not establish binding precedent. See, e.g., Webster

v. Fall, 266 U.S. 507, 511 (1925) (“Questions 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.”). Therefore, the unanalyzed assumption

in Errico cannot be treated as binding precedent affirming automatic citizenship for children born under

such circumstances.

Moreover, even if otherwise, these cases show

that, at most, the more expansive reading of Wong

Kim Ark advanced by Respondents and by the CASA

dissenters 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 Courts

decisions in The Slaughter-House Cases and Elk v.

12

Wilkins, discussed below, that were issued in much

closer proximity to the adoption of the Amendment.

There is also this Court’s footnote reference to

Wong Kim Ark in Plyler v. Doe, 457 U.S. 202, 211 n.10

(1982), cited by the CASA dissenters and by the Ninth

Circuit in Washington v. Trump. The footnote is

clearly dicta because the issue in the case involved the

Equal Protection Clause, not the Citizenship Clause.

The case does, however, call to mind an important textual distinction between the two. The Equal Protection Clause applies to all “persons within the jurisdiction” of the United States, language with clear geographic import, whereas the “subject to the jurisdiction” language in the Citizenship Clause does not have

(or at least does not necessarily have) such import. As

this Court has frequently recognized, different language in different parts of the same legal text is generally presumed to have different meaning. See, e.g.,

Russello v. United States, 464 U.S. 16, 23 (1983)

(“[W]here Congress includes particular language in

one section of a statute but omits it in another section

of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). The difference in language between the two clauses therefore supports rather than undermines the Government’s argument

that the Citizenship Clause requires complete jurisdiction, not merely partial or territorial jurisdiction

such as renders someone subject to U.S. law while present in the United States.

C. The Historical Evidence Cited By The

Lower Courts Is Inconclusive, at Best.

Although the lower court in this case simply

rested on what it viewed as the unambiguous text of

13

the Citizenship Clause and its expansive view of the

holding in Wong Kim Ark, other lower courts finding

a substantial likelihood of success on the merits for

various groups of Plaintiffs have cited 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

conclusion that the law on this subject is “well-settled,” or that it is correct.

i. Mischaracterization of Gardner v. Ward

In Washington v. Trump, the Ninth Circuit cited

Gardner v. Ward, 2 Mass. (1 Tyng) 244 (1805), as evidence that prior to the Fourteenth Amendment, “the

prevailing view was that the United States adopted

this idea of citizenship by birth within the territory.”

Washington, 145 F.4th at 1031. That claim is incorrect. As the case notes, the individual whose citizenship was at issue, Henry Gardner, “was born in Salem

[Massachusetts] … in the year of our Lord 1747,”

nearly thirty years before the American Declaration of

Independence. Id. at *1. He was therefore a British

subject at birth who was clearly subject to the English

rule of jus soli. The issue in the case was whether his

departure in 1775 and then subsequent return in 1781

deprived him of the general wartime transfer of allegiance from Great Britain to the United States that

applied to all British subjects in colonial America. The

Court held that he was a U.S. Citizen because his temporary removal for business purposes did not constitute a repudiation of that new citizenship, not because

of some American rule of birthright citizenship.

14

ii. Overreliance on Lynch v. Clarke

The reliance on Lynch v. Clarke by the CASA dissenters and by the Ninth Circuit in Washington v.

Trump fares no better. See CASA, 606 U.S. at 883;

Washington, 145 F.4th at 1031 (both citing Lynch v.

Clarke, 1 Sand. Ch. 583 (N.Y. Ch. 1844. Lynch was

merely a state trial 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).5 More fundamentally, in a subsequent flip-side-of-the-coin case,

the New York Supreme Court (the State’s intermediate appellate court), held that the children of those

“traveling or sojourning abroad,” “though born in a

foreign country, are not born under the allegiance,

and are an exception to the rule which makes the

place of birth the test of citizenship.” Ludlam v. Ludlam, 1860 WL 7475 (N.Y. Gen. Term. 1860). That decision was affirmed by the New York Court of Appeals,

which held: “By the law of nature alone, children follow the condition of their fathers, and enter into all

their rights. The place of birth produces no change in

this particular….” Ludlam v. Ludlam, 26 N.Y. 356,

368 (1863) (emphasis in original).

5 Available at https://ssrn.com/abstract=5140319.

15

iii. Misunderstanding of Senator Conness’s

Remarks on Citizenship

The CASA dissenters quoted Senator Conness’s

statement during congressional debates over the

Fourteenth Amendment “that the children born here

of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights

and to equal protection before the law.” CASA, 606

U.S. at 883. Similarly, the Ninth Circuit in Washington v. Trump quoted Senator Conness’s statement

about “children of all parentage whatever” becoming

citizens to suggest that the Amendment provided a

sweeping rule of birthright citizenship divorced from

parental allegiance. Washington, 145 F.4th at 1032

(quoting Cong. Globe, 39th Cong., 1st Sess. 2891

(1866)). Read in context, however, just the opposite is

the case. Senator Conness’s statements arose during

an exchange initiated by Senator Cowan. Senator

Cowan asked whether the proposed language would

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

they were to have “more rights than sojourners.” See

Cong. Globe, 39th Cong., 1st Sess. 2890-91 (1866)

(statements of Sens. Cowan and Conness). Senator

Cowan’s question 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.

Contrary to the views of the Ninth Circuit and the

CASA dissenters, therefore, this exchange fully supports the provision in President Trump’s executive order acknowledging that the Fourteenth Amendment

does not confer automatic citizenship on children born

to temporary visitors.

16

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).

II. 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 requires appreciating the

revolutionary break from English feudal concepts of

subjectship, from which the modern notion of automatic birthright citizenship based solely on the accident of location at birth is derived. See Erler, supra,

at 170-72.

i. English Common Law and Perpetual Allegiance

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 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.

17

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.; see also, Erler, supra, at 179.

ii. The American Revolution and the Shift

to Citizenship by Consent

The American Revolution repudiated this feudal

doctrine. 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). Its closing paragraph

made the rejection of jus soli’s perpetual allegiance

unmistakable, declaring “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). Indeed, Thomas Jefferson had earlier described the right of expatriation, “of departing from

the country in which chance, not choice, has placed

them”, as a natural right inherent in all men. Thomas

Jefferson, A Summary View of the Rights of British

America (1774), quoted in Erler, supra, at 169.

Thus, the Revolution transformed the legal conception of political membership from one based on

birthright subjectship to one based on mutual consent. See Erler, supra, at 182; see also James Madison,

Essay “On Sovereignty” (ca. 1835), (discussing the

need to “consult the Theory which contemplates a certain number of individuals as meeting and agreeing to

form one political society, in order that the rights and

the safety & the interest of each may be under the

18

safeguard of the whole”), quoted in Erler, supra, at

181.

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 which was a key component of the English

feudal rule of jus soli.

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 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.

In Inglis v. Trustees of Sailor’s Snug Harbor, 28

U.S. (3 Pet.) 99 (1830), the Court considered the citizenship of a person born in New York near the time of

19

the Declaration of Independence. In the opinion of the

Court delivered by Justice Thompson, the Court held

that the son’s “election and character followed that of

his father,” who had remained loyal to Britain. Id. at

126. This was true, according to the majority opinion,

even if he had been born in the period between the

Declaration of Independence and the British occupation of New York two months later. Id. at 124.6 Because the father maintained 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 126.

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 ...

6 Dissenting on this point, Justice Story contended that if Inglis

had been born in New York after the Declaration but before the

British occupation, he would have been a citizen. Id. at 164. But

his position in that case is driven in part by the “perplexing state

of affairs” due to the revolutionary war. Id. at 159. In the same

opinion, Justice Story also recognized that “birth within the allegiance of a foreign sovereign, does not always constitute allegiance, if that allegiance be of a temporary nature within the dominions of another sovereign,” id. at 156, which is what he described as a “reasonable qualification” to the general rule of

birthright citizenship in his Conflict of Laws treatise a few years

later. See infra at 20.

20

there have been doubts.” Id. at 167-68 (emphasis

added).

In his Commentaries on the Conflict of Laws, Justice Joseph Story had previously described the

“doubts” recognized by this Court in Happersett as follows: 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.” Joseph Story,

Commentaries on the Conflict of Laws § 48, at 48 (1834).

Although he acknowledged that “[i]t would be difficult

… to assert, that in the present state of public law

such a qualification is universally established”—some

courts, such as the New York trial court in Lynch continued to follow the old English rule, as that state’s

constitution required—Story’s “reasonable qualification” of not extending birth citizenship to temporary

visitors was followed by those who adopted the 1866

Civil Rights Act and drafted and proposed the Fourteenth Amendment.

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.

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.

21

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. Enacted by the same Congress that framed the

Fourteenth Amendment, the Act sought to secure citizenship for the freedmen following the abolition of

slavery. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat.

27, 27. 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).

The congressional understanding of this “not subject to any foreign power” limitation also expressly

tracked the distinction between permanent residents

and temporary visitors. House Judiciary Committee

Chairman James F. Wilson, introducing the Civil

Rights Bill, explained that relying on the “general law

relating to subjects and citizens recognized by all nations” leads to the conclusion that “every person born

in the United States is a natural born citizen … except

… children born … to temporary sojourners or representatives of foreign governments.” Cong. Globe, 39th

Cong., 1st Sess. 1117 (1866) (remarks of Rep. Wilson).

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,

22

39th Cong., 1st Sess. 572 (1866)). Representative John

Bingham, a key figure in drafting the Fourteenth

Amendment, was even more direct, stating 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. 1291 (1866) (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 into the

Constitution via the Fourteenth Amendment. Erler,

supra, 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. 2894 (1866); see also Lash, supra, at

48. Thus, the Civil Rights Act of 1866 demonstrates

the contemporaneous congressional understanding

that citizenship required more than birth; it required

an allegiance without 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 dur-

23

ing the Senate debates by the Amendment’s chief proponents. 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. 2893 (1866) (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 the “complete jurisdiction” required by the

Amendment from the mere amenability to laws or

treaties that might apply to those not fully within the

political community. Cong. Globe, 39th Cong., 1st

Sess. 2893 (1866).

Senator Jacob Howard, who introduced the specific language of the Citizenship 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.” Cong. Globe,

39th Cong., 1st Sess. 2895 (1866) (emphasis added);

see also id. at 2890. This understanding was so apparent to those present that Senator Reverdy Johnson

24

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 (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 Fourteenth Amendment’s 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 “subject to its jurisdiction” was intended precisely “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.)

at 73 (emphasis added).

25

This understanding, requiring more than mere

birth on U.S. soil, became holding in Elk v. Wilkins,

112 U.S. 94 (1884). There, the 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 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, explicitly

adopted the view articulated by Senators Trumbull

and Howard. Cooley 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 with allegiance to some other government.”

26

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 243

(1880).

The Executive Branch likewise initially concurred. Secretaries of State Frelinghuysen and

Bayard concluded in the 1880s that children born to

parents only temporarily in the United States, lacking

intent to remain and thus not fully submitting to U.S.

jurisdiction, were not citizens by birth. Wong Kim Ark,

169 U.S. at 719 (Fuller, C.J., dissenting) (citing

Hausding’s Case (1885) and Greisser’s Case). These

contemporaneous interpretations confirm that the

Citizenship Clause required complete political allegiance, not mere territorial birth. See Lash, supra, at

61–64.

III. 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 government 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. Act of June 2, 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, 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

27

upon all Native Americans born within the United

States after 1868, or that Wong Kim Ark had done so,

either.

If Respondents’ and the CASA dissenters’ broad

interpretation of the Citizenship Clause—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 v. Wilkins, that Native Americans born into tribal allegiance were not “subject to

the jurisdiction” of the United States in the complete

political sense required by the Amendment. See Elk,

112 U.S. at 102. 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.

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

28

workers that occurred following the stock market

crash in October 1929 and the 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 of the Fourteenth

Amendment and Wong Kim Ark 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).7 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.

C. Passport forms requiring “status of parents at birth” until changed, inexplicably,

in 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

7 Available at http://www.leginfo.ca.gov/pub/05-

06/bill/sen/sb_0651-0700/sb_670_bill_20051007_chaptered.html.

29

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.8

CONCLUSION

The President’s Executive Order is grounded on

the original meaning of the Fourteenth Amendment’s

Citizenship Clause, which required that one be subject to the complete jurisdiction of the United States

and not subject to any foreign power. It therefore correctly concludes that the children born to those subject only to a partial or territorial jurisdiction, such as

is the case with temporary visitors and even more so

with those who have entered the country illegally, are

not automatically citizens by virtue of the Citizenship

Clause. This Court should uphold the Executive Order

and return to the branch of government to which it

was assigned, namely, the Congress, pursuant to its

power over naturalization, U.S. Const. Art. I, § 8, cl.

8 The questions about parental status were dropped from the ap-

plication regulations in 1966, and only evidence of birth in the

United States was then required—primary evidence such as a

birth or baptismal certificate, or secondary evidence such as census records, newspaper files, or family Bibles. 31 Fed.Reg. 13537,

13542 (§ 51.43); see also 22 C.F.R. § 51.42. The CASA dissenters’

reliance on current regulations that deem birth in the United

States as sufficient to prove citizenship, CASA, 606 U.S. at 886,

ignores the prior regulation’s requirement for information about

parental status.

30

4, the political decision of how far above that constitutional floor, if at all, citizenship should be offered.

January 2026

Respectfully submitted,

JOHN C. EASTMAN

Counsel of Record

ALEXANDER HABERBUSH

Constitutional Counsel Group

444 W Ocean Blvd, Ste 1403

Long Beach, CA 90802

(562) 435-9062

jeastman@ccg1776.com

Counsel for Amicus Curiae The Claremont Institute’s

Center for Constitutional Jurisprudence

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.