Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.
Supreme Court briefJan 27, 2026
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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
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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.