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, ET AL.,
Petitioners,
v.
BARBARA, ET AL.,
Respondents.
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
AMICUS CURIAE BRIEF OF TENNESSEE, IOWA,
23 OTHER STATES, AND GUAM IN SUPPORT OF
PETITIONERS
BRENNA BIRD
Attorney General of Iowa
JONATHAN SKRMETTI
Attorney General of Tennessee
ERIC WESSAN
Solicitor General
J. MATTHEW RICE
Solicitor General
Counsel of Record
OFFICE OF IOWA
ATTORNEY GENERAL
1305 E Walnut Street
Des Moines, IA 50319
(515) 823-9117
Eric.Wessan@ag.iowa.gov
(additional counsel listed
at the end of the brief)
OFFICE OF TENNESSEE
ATTORNEY GENERAL
P.O. Box 20207
Nashville, TN 37202
(615) 532-6026
Matt.Rice@ag.tn.gov
i
TABLE OF CONTENTS
INTERESTS OF AMICUS CURIAE .......................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ................................................................ 3
ARGUMENT ................................................................ 4
I. Plaintiffs’ Mere-Presence Position Has Serious
Merits Flaws........................................................... 4
A. The text weighs against plaintiffs................... 7
B. Contemporaneous history and practice
weigh against plaintiffs. ................................ 10
C. Supreme Court precedent weighs against
plaintiffs. ........................................................ 17
D. Post-ratification practice is not dispositive .. 22
II. Plaintiffs Cannot Justify Facially Invalidating
the Executive Order. ........................................... 26
CONCLUSION .......................................................... 31
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Arizona v. United States,
567 U.S. 387 (2012) ................................................ 27
Ayotte v. Planned Parenthood,
546 U.S. 320 (2006) .......................................... 30, 31
Benny v. O’Brien,
32 A. 696 (N.J. 1895).............................................. 19
Bowsher v. Synar,
478 U.S. 714 (1986) ................................................ 23
Brooks v. Martin,
69 U.S. 70 (1864) ...................................................... 7
Connection Distrib. Co. v. Holder,
557 F.3d 321 (6th Cir. 2009) .................................. 31
Dep’t of Homeland Sec. v. Thuraissigiam,
591 U.S. 103 (2020) ................................................ 21
Doe v. Trump,
157 F.4th 36 (1st Cir. 2025) ................................... 27
Dred Scott v. Sandford,
60 U.S. (19 How.) 393 (1857) ................................... 5
Elk v. Wilkins,
112 U.S. 94 (1884) .................................................. 18
iii
Gill v. Whitford,
585 U.S. 48 (2018) .................................................. 30
Hurd v. Hodge,
334 U.S. 24 (1948) .................................................... 5
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ................................................ 23
INS v. Rios-Pineda,
471 U.S. 444 (1985) ................................................ 24
Kaplan v. Tod,
267 U.S. 228 (1925) .......................................... 20, 21
Kwock Jan Fat v. White,
253 U.S. 454 (1925) ................................................ 19
Labrador v. Poe ex rel. Poe,
144 S. Ct. 921 (2004) .............................................. 28
Leng May Ma v. Barber,
357 U.S. 185 (1958) ................................................ 21
Lopez-Sorto v. Garland,
103 F.4th 242 (4th Cir. 2024) ................................ 21
Maryland v. King,
567 U.S. 1301 (2012) .............................................. 26
McDonald v. City of Chicago,
561 U.S. 742 (2010) ................................................ 25
Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172 (1999) ................................................ 31
iv
Minor v. Happersett,
88 U.S. 162 (1874) .................................................. 17
Moody v. NetChoice, LLC,
603 U.S. 707 (2024) ........................................... 26-28
Morrison v. California,
291 U.S. 82 (1934) .................................................. 23
Nat’l Treasury Emps. Union v. Bush,
891 F.2d 99 (5th Cir. 1989) .................................... 28
NLRB v. Noel Canning,
573 U.S. 513 (2014) ................................................ 22
Peter Pan Bus Lines v Fed Motor Carrier Safety
Admin.,
471 F.3d 1350 (D.C. Cir. 2006) .............................. 24
Plyler v. Doe,
599 U.S. 635 (1982) ............................................ 1, 23
Samia v. United States,
599 U.S. 635 (2023) ................................................ 22
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) ................................................ 21
Slaughter-House Cases,
83 U.S. 36 (1872) .................................................... 17
Somerville v. Somerville,
(1801) 31 Eng. Rep. 839, 5 Ves. Jun. 750.............. 10
Trump v. CASA, Inc.,
145 S. Ct. 2540 (2025) ............................................ 27
v
United States v. Abbott,
110 F.4th 700 (5th Cir. 2024) ................................ 30
United States v. Grace,
461 U.S. 171 (1983) ................................................ 30
United States ex rel. Hintopoulos v. Shaughnessy,
353 U.S. 72 (1957) .................................................. 23
United States v. Ju Toy,
198 U.S. 253 (1905) .......................................... 20, 21
United States v. Rahimi,
602 U.S. 680 (2024) ..................................... 10, 23-25
United States v. Salerno,
481 U.S. 739 (1987) ...................................... 4, 28, 30
United States v. Wong Kim Ark,
169 U.S. 649 (1898) ................................ 3, 18, 19, 29
Van Buren v. United States,
593 U.S. 374 (2021) .................................................. 7
Vidal v. Elster,
602 U.S. 286 (2024) ................................................ 25
Washington v. Trump,
858 F.3d 1168 (9th Cir. 2017) ................................ 31
Washington v. Trump,
145 F.4th 1013 (9th Cir. 2025) ...................... 4, 6, 22
Zadvydas v. Davis,
533 U.S. 678 (2001) ................................................ 20
vi
Constitutional Provisions
U.S. Const. amend. XIV, § 1.................................... 7, 9
Statutes & Legislative Materials
8 U.S.C. § 1401(b) ........................................................ 6
Civil Rights Act of 1866, 14 Stat. 27 ....................... 5, 9
Cong. Globe, 35th Cong., 2nd Sess. (1859) ............... 12
Cong. Globe, 39th Cong., 1st Sess. (1866) ......... 5, 8, 9,
12, 13
The Cost of Illegal Immigration to Taxpayers: Hearing on the Impact of Illegal Immigration on Social
Services Before the H. Subcomm. on Immigr. Integrity, Sec., and Enf’t, 118th Cong. 8 (2024). ............. 1
Other Authorities
2 A Dictionary of Words and Phrases Used in
Ancient and Modern Law (1899) .............................. 9
3 John Bassett Moore, LL.D., A Digest of International Law § 373 (1906) ......................................... 14
Alexander Porter Morse, A Treatise on Citizenship
(1881) ...................................................................... 15
Amy Swearer, Subject to the (Complete)
Jurisdiction Thereof: Salvaging the Original
Meaning of the Citizenship Clause,
24 Tex. Rev. L. & Pol. 135 (2019) ............ 5-9, 11, 12,
14, 21, 24
vii
Brandon L. Garrett, Misplaced Constitutional
Rights, 100 B.U. L. Rev. 2085 (2020) .................... 24
Comment, 7 Yale L. J. 365 (1898) ............................. 16
Congressional Budget Office, Effects of the Surge in
Immigration on State and Local Budgets in
2023 (2025) ............................................................... 1
Executive Order, “Guaranteeing the States Protection Against Invasion,” Jan. 20, 2025 ................... 30
Hannis Taylor, A Treatise on International Public
Law (1901) .............................................................. 16
Henry Campbell Black, Handbook of American
Constitutional Law (3d ed. 1910) .......................... 16
Ilan Wurman, Jurisdiction and Citizenship
(Minn. L. Stud. Rsch. Paper, No. 25-27, 2025) ..... 11
Joseph Story, Commentaries on the Conflict of
Laws (1834) ............................................................ 15
Justin Lollman, The Significance of Parental
Domicile Under the Citizenship Clause,
101 Va. L. Rev. 455 (2015) ............. 10, 11, 14, 15, 19
Katherine Long, et al., The Chinese Billionaires
Having Dozens of U.S.-Born Babies Via
Surrogacy, Wall Street Journal (Dec. 13, 2025) ... 29
Kurt T. Lash, Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment’s Citizenship Clause,
101 Notre Dame L. Rev. ____ (Forthcoming) ... 11-13
viii
Legis. Denying Citizenship at Birth to Certain
Children Born in the U.S.,
19 Op. O.L.C. 340 (1995) ................................. 22, 23
Letter from F.A. Reeve, Acting Solicitor of the
Treasury, (in XI Documents of the Assembly of
the State of New York, 113th Sess.)...................... 14
Letter from Sen. Lyman Trumbull to President Andrew Johnson, (in Andrew Johnson Papers, Reel
45, Manuscript Div., Library of Congress)............ 12
Minority Staff, U.S. Sen. Comm. on Homeland Sec.
& Governmental Affairs, Birth Tourism in the
United States (2022) .............................................. 28
Mark Shawhan, Comment, The Significance of
Domicile in Lyman Trumbull’s Conception of
Citizenship,
119 Yale L. J. 1351 (2010) ..................................... 11
S. Rapalje & R. Lawrence, 1 A Dictionary of American and English Law (1883).................................... 9
S. Rapalje & R. Lawrence, 2 A Dictionary of American and English Law (1888).................................. 10
Samuel Estreicher & Rudra Reddy, Revisiting the
Scope of Constitutional Birthright Citizenship
(NYU Pub. L. Rsch. Paper Forthcoming). ............. 11
Samuel Freeman Miller, LL.D., Naturalization and
Citizenship, in Lectures on the Constitution of the
United States (J. C. Bancroft Davis ed., 1893). .... 15
ix
Spanish Treaty Claims Comm’n, U.S. Dep’t of Just.,
Final Report of William Wallace Brown, Assistant
Att’y-Gen. (1910). .................................................... 19
The Federalist (Clinton Rossier ed., 1961). .............. 35
Wendy Edelberg & Tara Watson, A More Equitable
Distribution of the Positive Fiscal Benefits of Immigration, The Hamilton Project (2022) ..................... 1
William Edward Hall, A Treatise on International
Law (5th ed. 1904) ................................................. 16
INTERESTS OF AMICUS CURIAE
Recent years have seen an influx of illegal aliens—
over 9 million—overwhelming our nation’s infrastructure and its capacity to assimilate. U.S. Customs and
Border Protection, Nationwide Encounters (Feb. 5,
2024), https://perma.cc/EDU3-98CP. And “state and
local governments bear more of the fiscal burden of immigration than the federal government bears.” Wendy
Edelberg & Tara Watson, A More Equitable Distribution of the Positive Fiscal Benefits of Immigration, The
Hamilton Project, at 6 (2022) https://perma.cc/LH8TN6BU. States spend tens of billions of dollars annually on the public education of aliens within their borders. The Cost of Illegal Immigration to Taxpayers:
Hearing on the Impact of Illegal Immigration on Social
Services Before the H. Subcomm. on Immigr. Integrity,
Sec., and Enf’t, 118th Cong. 8 (2024) (statement of Steven A. Camarota, Rsch. Dir., Center for Immigr.
Stud.), https://perma.cc/Y2S8-AKXL; cf. Plyler v. Doe,
457 U.S. 202, 230 (1982). States finance public benefits for illegal aliens. See The Cost of Illegal Immigration to Taxpayers, supra, at 8. And States bear the
costs of increased demand for public-safety services. Congressional Budget Office, Effects of the
Surge in Immigration on State and Local Budgets in
2023, at 11-15 (2025).
Tennessee and Iowa, along with Alabama, Alaska,
Arkansas, Florida, Georgia, Guam, Idaho, Indiana,
Kansas, Kentucky, Louisiana, Mississippi, Missouri,
Montana, Nebraska, North Dakota, Oklahoma, Ohio,
South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming, thus face significant economic,
2
health, and public-safety issues from policies holding
out a “powerful incentive for illegal migration,” Petitioner’s Br. 8, beyond what the Citizenship Clause requires.
3
INTRODUCTION AND SUMMARY OF
ARGUMENT
Judicial review of a President’s policies should
rest on sound legal analysis, not prejudgments. Yet
plaintiffs and the court below dismissed any need for
a deep dive here, casting their reading of the Citizenship Clause as settled and beyond debate. Never mind
that plaintiffs’ mere-presence-at-birth rule cannot be
right all the time, as all agree. Or that it is contrary
to the expressed view of many contemporaneous court
cases and commentators. Or that it rewards illegal
behavior in a manner no drafter or ratifier of the Citizenship Clause endorsed. Courts have viewed plaintiffs’ correctness as a foregone conclusion. That is seriously mistaken.
Not only is the plaintiffs’ conception of the Citizenship Clause not obvious—as the Solicitor General’s
brief persuasively explains—text, history, and Supreme Court precedent foreclose plaintiffs’ “merepresence” reading of the Clause. Contra plaintiffs’
thin historical arguments, contemporaneous sources
instead support what common sense suggests: Conferring United States citizenship requires a more
meaningful connection than mere presence by happenstance or illegality. That connection, originalist evidence repeatedly instructs, was parental domicile.
United States v. Wong Kim Ark, 169 U.S. 649 (1898),
does not dictate otherwise. Plaintiffs and the court below overread that decision to reach their preferred
mere-presence rule. But in reality, Wong Kim Ark
cuts against them. Meanwhile, the plaintiffs erroneously rely on political-branch practice long post-dating
4
ratification and ignore this Court’s immigration precedents, which further cuts against a mere-presence
rule.
The States also write to reiterate the importance
of holding litigants to the stringent requirements attending facial challenges. Evolving litigation strategies after CASA reinforce the need for dogged adherence to Salerno’s exacting test for facial challenges.
See United States v. Salerno, 481 U.S. 739, 745 (1987).
Anything less, and courts risk recreating many of the
same harms that CASA put to rest. This case presents
a scenario where, no matter what conclusion the Court
ultimately reaches on the merits, it is doubtful that
“no set of circumstances exists” under which the Government can constitutionally enforce the executive order. Id. At the very least, the Court should limit relief
to any unconstitutional aspects and applications of the
EO.
ARGUMENT
I.
Plaintiffs’ Mere-Presence Position Has Serious Merits Flaws.
Plaintiffs would have us believe this is an easy
case. Their brief-in-opposition says the Government’s
position is “countertextual,” “ahistorical,” and posits a
“radical reinterpretation of the Constitution.” BIO 23. Other challengers in the lower courts have gone
further, accusing President Trump of “seek[ing] to impose a modern version of Dred Scott.” States’ Ans. Br.,
at 1, Washington v. Trump, 145 F.4th 1013 (9th Cir.
2025). But that puffery cannot cure the glaring deficiencies in plaintiffs’ merits arguments. Examining
5
the relevant text, history, and precedent, the plaintiffs’ mere-presence position is anything but a foregone
conclusion.
Start with a few broader points that most accept.
First, the Fourteenth Amendment aimed to constitutionally “ingraft” the protections of the Civil Rights
Act of 1866. Cong. Globe, 39th Cong., 1st Sess. App.
82 (1867) (statement of Rep. Miller). Relevant here,
the 1866 Act directed 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,” no matter their “race
and color” and “without regard to any previous condition of slavery or involuntary servitude.” Civil Rights
Act of 1866, ch. 31, § 1, 14 Stat. 27, 27 (emphasis
added). Given their close relationship, the Act’s history and ordinary public meaning have long been understood to bear on interpretation of the Citizenship
Clause. See, e.g., Hurd v. Hodge, 334 U.S. 24, 31-33 &
n.13 (1948).
Second, there is “near-universal consensus” that
both the Citizenship Clause and the Civil Rights Act
of 1866 sought to overturn the Supreme Court’s odious
holding in Dred Scott v. Sandford, 60 U.S. (19 How.)
393 (1857), which treated U.S.-born descendants of African slaves as property rather than persons entitled
to U.S. citizenship. Petitioners’ Br. 13-14; see also
Amy Swearer, Subject to the (Complete) Jurisdiction
Thereof: Salvaging the Original Meaning of the Citizenship Clause, 24 Tex. Rev. L. & Pol. 135, 145 (2019).
The provisions also sought to redress the “systematic
denial of civil rights to freed slaves” by prohibiting
6
race-based discrimination in the conferral of citizenship or provision of civil rights. Id. at 146. But parental race or alienage is not parental residency—a distinction the lower courts have failed to grasp. See, e.g.,
Trump v. Washington, 145 F.4th 1013, 1030-31 (9th
Cir. 2025).
Third, while plaintiffs advocate for a mere-presence rule, they must at the same time agree that their
pure jus soli approach does not hold in all cases. Specifically, plaintiffs and their supporters stipulate that
presence is not enough for children of (i) Indian tribal
members (who obtain citizenship only through statute, see 8 U.S.C. § 1401(b)), (ii) foreign diplomats, and
(iii) at least some others, like enemy combatants, who
are immune from U.S. law. This means that the core
question is not, as many commentators cast it,
whether all persons born within U.S. borders obtain
citizenship—even plaintiffs agree that’s not right.
See, e.g., BIO 7-9, 15-16, 19, 33, 35. It’s whether “born
... in the United States, and subject to the jurisdiction
thereof” excludes only some unstated set of limited exceptions based on then-prevailing understandings of
immunity (plaintiffs’ view), or provides a generally applicable rule that bars all those without meaningful
residence-based ties to the United States (the Government’s view).
Fourth, immigration restrictions as we know them
did not arise until the early 1880s, after the Citizenship Clause’s ratification. There is thus no contemporaneous discussion supporting plaintiffs’ maximalist
position applying the Clause to children whose parents are present in the United States only unlawfully
7
and after evading detection. And if rewarding parental illegality had come up, it would have violated the
“deep and firm” legal rule ex turpi causâ non oritur actio, which prohibited enforcing illegal contracts or rewarding illegal acts. E.g., Brooks v. Martin, 69 U.S.
70, 75-76 (1864); see also Petitioners’ Br. 32.
To sum up, then, plaintiffs’ first-principles position is that a provision that (i) aimed to confer citizenship on freed slaves and thus (ii) does not address nonresidents or those unlawfully present, nonetheless (iii)
binds the Executive Branch to automatically confer
citizenship in most (but not all) cases (iv) in a manner
rewarding those who illegally enter the country. That
counterintuitive “fallout” should raise red flags about
the “implausibility” of plaintiffs’ interpretation. Van
Buren v. United States, 593 U.S. 374, 394 (2021). And
as it turns out, plaintiffs’ mere-presence position is
textually, historically, and precedentially challenged.
A. The text weighs against plaintiffs.
There are two apparent textual problems with
plaintiffs’ mere-presence position. At the outset, the
Clause directs that covered persons not only must be
“born … in the United States”; they also must be “subject to the jurisdiction thereof”—a limitation that was
consciously added by Senator Howard to the originally
proposed text. U.S. Const. amend. XIV, § 1; see
Swearer, supra, at 142-43. So the text, as revised,
must do something different than adopt England’s
common-law rule of pure jus soli, which turns only on
the location of a child’s birth.
8
The parties instead debate precisely how the
Clause departs from a pure jus soli approach. Plaintiffs contend that “jurisdiction” is a low bar, referring
only to the bare sense of being subject to some U.S.
control. See, e.g., BIO 19, 25, 32-33. But that thin
reading is at odds with the understanding of the term
at the time. See Cong. Globe, 39th Cong., 1st Sess.
2897 (1866) (statement of Senator Williams) (“In one
sense, all persons born within the geographical limits
of the United States are subject to the jurisdiction of
the United States, but they are not subject to the jurisdiction of the United States in every sense.”) (emphasis
added). And it also doesn’t comport with well-settled
understandings of the Citizenship Clause—after all,
tribal members and foreign diplomats are “in some
way subject to the basic level of sovereign authority
the United States government exerts over its geographical territory,” even though their “exclusion from
birthright citizenship is uncontested.” Swearer, supra, at 149 & n.35 (collecting examples of U.S. legal
authority over diplomats); Haaland v. Brackeen, 599
U.S. 255, 272-73 (2023) (“Congress’s power to legislate
with respect to the Indian tribes [i]s plenary and exclusive.”) (cleaned up). Equating “subject to the jurisdiction thereof” with being within the United States’
territory collapses two distinct prongs of the Clause’s
text.
Plaintiffs’ contrary reading further places the Citizenship Clause at odds with the 1866 Act, even
though “the object” of them was “the same.” Cong.
Globe, 39th Cong., 1st Sess. 2894 (statement of Senator Trumbell); see also Petitioners’ Br. 17-18. The
1866 Act afforded citizenship only to those “not subject
9
to any foreign power.” Civil Rights Act of 1866, ch. 31,
§ 1, 14 Stat. 27, 27. And Senator Trumbull, the Act’s
primary architect, specifically adopted that language
to exclude the children of “persons temporarily resident” in the country. Cong. Globe, 39th Cong., 1st
Sess. 572 (1866). That choice was central to the Reconstruction Congress’ overarching goal “to withhold
birthright citizenship from those who did not owe a
complete, permanent allegiance to the United States
and who were not part of the ‘American people.’”
Swearer, supra, at 157-59 (collecting sources). Historical evidence reflects that the metric for measuring the
requisite connection to U.S. jurisdiction was domicile
or lawful permanent residence. Infra 10-17. Temporary presence by a parent who legally resided in a foreign country was not enough.
A second textual feature of the Citizenship Clause
points to a domicile-based approach: The provision
presupposes that persons have a “State wherein they
reside.” U.S. Const. amend. XIV, § 1 (emphasis
added). And the term “reside,” in context, connotes a
person’s legal residence or domicile. See, e.g., “Residence,” S. Rapalje & R. Lawrence, 2 A Dictionary of
American and English Law 1114 (1888) (collecting
cases treating “residence” as “synonymous with ‘domicile’”); “Residence, Legal,” 2 A Dictionary of Words
and Phrases Used in Ancient and Modern Law 692
(1899) (“[t]he place where a man has his fixed place of
abode, where he can exercise his political rights and is
subject to personal taxation”). That’s particularly so
when viewed against then-prevailing concepts of complete jurisdiction and political allegiance, with which
10
domicile’s meaning was closely aligned. Justin Lollman, The Significance of Parental Domicile Under the
Citizenship Clause, 101 Va. L. Rev. 455, 488-90 (2015)
(colleting authorities); accord “Domicile,” Rapalje & R.
Lawrence, 1 A Dictionary of American and English
Law 410 (1883) (“The question where a person is domiciled may be important, because it is by the law of
that place that his civil status … is regulated.”).
The general rule of “domicile of origin” or “natural
domicile,” moreover, is that a child inherits his parent’s domicile at birth and that domicile prevails until
“clearly abandoned and another taken” via “fixed and
settled habitation.” Somerville v. Somerville (1801) 31
Eng. Rep. 839, 840, 842; 5 Ves. Jun. 750, 750, 755.
“Thus,” as an 1888 American and English law dictionary instructed, “if a husband and wife domiciled in
England take a voyage to India, and a child is born to
them on the voyage, or in India before they acquire a
domicile there, its domicile is English.” “Domicile of
origin,” 1 A Dictionary of American and English
Law, supra, at 410. The Citizenship Clause’s reference to “reside” thus appears to align with a domicilebased approach to the Citizenship Clause and exclude
persons whose parents lack permanent or lawful residence in the United States. Petitioners’ Br. 29-30.
B. Contemporaneous history and practice
weigh against plaintiffs.
When assessing the Citizenship Clause’s meaning, the “history that matters most is the history surrounding the ratification of the text.” United States v.
Rahimi, 602 U.S. 680, 737 (2024) (Barrett, J., concurring). The States do not purport to fully survey the
11
complex historical record here. Others have, though.
See Swearer, supra; Lollman, supra; Kurt T. Lash,
Prima Facie Citizenship: Birth, Allegiance and the
Fourteenth Amendment’s Citizenship Clause, 101
Notre Dame L. Rev. ____ (Forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5140319;
Ilan Wurman, Jurisdiction and Citizenship (Minn. L.
Stud. Rsch. Paper, No. 25-27, 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5216249;
Samuel Estreicher & Rudra Reddy, Revisiting the
Scope of Constitutional Birthright Citizenship (NYU
Pub. L. Rsch. Paper Forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5223361;
Mark Shawhan, Comment, The Significance of Domicile in Lyman Trumbull’s Conception of Citizenship,
119 Yale L. J. 1351 (2010). Suffice it to say, a range of
contemporaneous sources 1 cast significant doubt on
plaintiffs’ mere-presence position.
These include debates and commentary surrounding the passage and ratification of the 1866 Civil
Rights Act and the Fourteenth Amendment, which
pervasively linked eligibility to legal residency:
•
Senator Lyman Trumbull, the primary drafter
of the 1866 Act’s citizenship provision, explained that the provision excluded “persons
temporarily resident in [the United States]
whom we would have no right to make citizens.”
Even though “a sort of allegiance was due to the
country from” such persons, they were not those
1 The historical sources quoted throughout this section are col-
lected in Swearer, supra; Lollman, supra; and Lash, supra.
12
“who owe allegiance to the United States” in the
sense the Act’s citizenship provision was understood to require. Cong. Globe, 39th Cong., 1st
Sess. 572 (1866) (emphasis added).
•
Representative John Bingham, the “father of
the Fourteenth Amendment,” Swearer, supra,
at 159, repeatedly declared that domicile and
exclusive allegiance were necessary conditions
of birthright citizenship. In 1859, he stated
that “all free persons born and domiciled within
the jurisdiction of the United States, are citizens of the United States from birth.” Cong.
Globe, 35th Cong., 2nd Sess. 983 (1859) (statement of Rep. Bingham). He echoed that idea
throughout the era. See Lash, supra, at 18;
Swearer, supra, at 159-60. And then, during
the debates on the Civil Rights Act, he asserted
that the citizenship provision meant that “every
human being born within the jurisdiction of the
United States of parents not owing allegiance to
any foreign sovereignty is, in the language of
your Constitution itself, a natural-born citizen.”
Cong. Globe, 39th Cong., 1st Sess. 1291 (1866)
(emphasis added).
•
Summarizing the Civil Rights Act for President
Johnson, Senator Trumbull explained that the
Act “declares ‘all persons’ born of parents domiciled in the United States … to be citizens of the
United States.” Swearer, supra, at 158-59
(quoting Letter from Sen. Lyman Trumbull to
President Andrew Johnson, in Andrew Johnson
Papers, Reel 45, Manuscript Div., Library of
13
Congress, Washington, D.C., Doc. No. 28152)
(emphasis added).
•
In explaining how the Citizenship Clause
tracked the Civil Rights Act, Senator Jacob
Howard emphasized that the Clause “will not,
of course, include persons born in the United
States who are foreigners, aliens, [or] who belong to the families of embassadors or foreign
ministers accredited to the Government of the
United States.” Cong. Globe, 39th Cong., 1st
Sess. 2890 (1866) (emphasis added).
•
Newspaper coverage of the debates over the
Civil Rights Act relayed that the citizenship
provision excluded certain classes of foreigners
born in the United States. A prominent Chicago paper declared that the bill afforded citizenship to “all persons born in the United
States,” except “those subject to foreign governments,” a class which included those born to
“foreign parents temporarily sojourning in this
country.” The Placer Herald in California noted
that the Act “declared that all persons born on
American soil were citizens, except those acknowledging allegiance to a foreign power and
untaxed Indians.” See Lash, supra, at 45-46
(collecting sources).
Early Executive Branch practice was also in accord:
•
In the 1880s, two Secretaries of State denied
citizenship to persons born in the United
14
States. The reason? Their parents had “remained domiciled” overseas. Swearer, supra, at
170. Letters setting out their reasoning confirmed that “[t]he fact of birth” in the United
States, “under circumstances implying alien
subjection, establishes of itself no right of citizenship.” Letter from Mr. Frelinghuysen, Sec’y
of State, to Mr. Kasson, Minister to Ger. (Jan.
15, 1885), in 3 John Bassett Moore, LL.D., A Digest of International Law § 373, at 279 (1906);
Letter from Mr. Bayard, Sec’y of State, to Mr.
Winchester, Minister to Switz. (Nov. 28,
1885), in 3 John Bassett Moore, LL.D., A Digest
of International Law § 373, at 280 (1906); see
Lollman, supra, at 479-80.
•
The Secretary of the Treasury applied similar
reasoning in an 1890 opinion letter, which denied “citizenship of a child born to a would-be
immigrant who had not ‘landed’ but was awaiting immigration approval.” Swearer, supra, at
171. The Secretary explained: “I am, therefore,
of the opinion that the child in controversy born
during the temporary removal of the mother
from the importing vessel to a lying-in hospital
for her own comfort, pending further examination as to whether she belongs to the prohibited
class of immigrants, did not become, by reason
of its birth, under such circumstances, an American citizen.” Letter from F.A. Reeve, Acting Solicitor of the Treasury (Mar. 4, 1890), in XI Documents of the Assembly of the State of New
York, 113th Sess., No. 74, 6, 47.
15
Likewise, 1800s and early 1900s commentary
recognized parental domicile as a distinguishing
feature between the British and U.S. rules on citizenship:
•
Justice Joseph Story, writing in his Commentaries on the Conflict of Laws, urged in 1834
that “[a] reasonable qualification o[n] the rule”
of jus soli “would seem to be, that it should not
apply to the children of parents … who were
abiding there for temporary purposes.” Joseph
Story, Commentaries on the Conflict of
Laws § 48 (Boston, Little, Brown & Co. 6th ed.
1865) (quoted in Lollman, supra).
•
Alexander Porter Morse asserted in 1881 that
“[t]he words ‘subject to the jurisdiction thereof’
exclude[d] the children of foreigners transiently
within the United States … as … subjects of a
foreign nation.” Alexander Porter Morse, A
Treatise on Citizenship 248 (Boston, Little,
Brown & Co. 1881).
•
In a late 19th-century law review article, Supreme Court Justice Samuel Freeman Miller
observed: “If a stranger or traveller passing
through, or temporarily residing in this country, who has not himself been naturalized, and
who claims to owe no allegiance to our Government, has a child born here which goes out of
the country with its father, such child is not a
citizen of the United States, because it was not
subject to its jurisdiction.” Samuel Freeman
16
Miller, LL.D., Naturalization and Citizenship, in Lectures on the Constitution of the
United States 275, 279 (J. C. Bancroft Davis
ed., 1893).
•
An 1898 comment in the Yale Law Journal
wrote: “[I]n this country, the alien must be permanently domiciled, while in Great Britain
birth during a mere temporary sojourn is sufficient to render the child a British subject.”
Comment, 7 Yale L. J. 365, 367 (1898) (emphasis added).
•
Constitutional scholar Henry Campbell Black
distinguished between U.S.-born children of “a
stranger or traveler passing through the country, or temporarily residing here,” who are not
entitled to citizenship, and “children, born
within the United States, of permanently resident aliens, who are not diplomatic agents or
otherwise within the excepted classes,” who are
entitled to citizenship no matter their race.
Handbook of American Constitutional Law 634
(3d ed. 1910) (emphasis added).
•
International law treatises reached the same
conclusion. See, e.g., William Edward Hall,
M.A., A Treatise on International Law 224-25,
227 (5th ed. 1904) (“In the United States it
would seem that the children of foreigners in
transient residence are not citizens.”); Hannis
Taylor, LL.D., A Treatise on International Public Law 220 (1901) (“It appears, therefore, that
children born in the United States to foreigners
17
here on transient residence are not citizens, because by the law of nations they were not at the
time of their birth ‘subject to the jurisdiction.”’).
At the very least, the excerpts above and sources
collected by scholars show that plaintiffs’ mere-presence position was not the uniform historical consensus.
C. Supreme Court precedent weighs against
plaintiffs.
Nor does this Court’s precedent mandate plaintiffs’ maximalist reading of the Citizenship Clause.
Quite the contrary: Caselaw emphasizes the importance of parental domicile to birthright citizenship
and shuns mere-physical-presence rules in the immigration context. See Petitioners’ Br. 18-21.
1. The earliest cases interpreting the Fourteenth
Amendment point towards a domicile-based approach.
In 1872, the Court’s decision in the Slaughter-House
Cases stated that the Citizenship Clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States
born within the United States.” 83 U.S. 36, 73 (emphasis added). Two years later, the Court observed that
“common-law” principles informed “who shall be natural-born citizens” and noted “doubts” as to whether
children of “aliens or foreigners” born in the United
States constituted “natural-born citizens.” Minor v.
Happersett, 88 U.S. 162, 167-68 (1874). The Court recognized that “it was never doubted that all children
born in a country of parents who were its citizens became themselves, upon their birth, citizens also.” Id.
18
at 167. After observing that “[s]ome authorities go further and include as citizens children born within the
jurisdiction without reference to the citizenship of
their parents,” the Court noted that “[a]s to this class
there have been doubts.” Id. at 168.
Elk v. Wilkins, 112 U.S. 94 (1884), also counsels
against a mere-presence approach. There, the Court
assessed how the Citizenship Clause applied to an Indian born into a tribe who then severed tribal relations. Id. at 99. The Court held that “Indians born
within the territorial limits of the United States, …
although in a geographical sense born in the United
States” were not “‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of
the first section of the fourteenth amendment.” Id. at
102. The Indian must have been “completely subject
to [the United States’] political jurisdiction, and owing
them direct and immediate allegiance.” Id. But Elk
was not, so he would not receive citizenship, just as
“the children of subjects of any foreign government
born within the domain of that government” would
not. Id.
Wong Kim Ark—on which plaintiffs principally
rely—cuts against them too. Petitioners’ Br. 32-37.
The Court there decided how the Citizenship Clause
applied to a U.S.-born child of Chinese aliens lawfully
present and permanently domiciled in the United
States. Wong Kim Ark, 169 U.S. at 652-53. So unlawful presence was not at play. Still, the Court emphasized throughout that the alien parents were “resident[s]” and “domiciled within the United States.” Id.
at 652, 653, 693, 696, 705. It reasoned that “[e]very
19
citizen or subject of another country, while domiciled
here, is within the allegiance and the protection, and
consequently subject to the jurisdiction, of the United
States” for purposes of the Clause. Id. at 693 (emphasis added). And it held that “Chinese persons … so
long as they are permitted by the United States to reside here” enjoy the same birthright protections “as all
other aliens residing in the United States.” Id. at 694
(emphasis added). In so doing, the Court expressly
drew from Benny v. O’Brien, 32 A. 696 (N.J. 1895),
which interpreted the Citizenship Clause to require
that parents be “domiciled here,” and thus to exclude
“those born in this country of foreign parents who are
temporarily traveling here.” Id. at 698.
Wong Kim Ark’s emphasis on parental domicile
was no accident. It responded directly to the parties’
briefing and to the dissent’s concern about covering
persons “born of aliens whose residence was merely
temporary, either in fact or in point of law.” Id. at 729
(Fuller, C.J., dissenting). Not surprisingly, “[i]n the
years immediately following Wong Kim Ark, several
commentators read the Court’s reference to domicile
as actually doing work in the opinion.” Lollman, supra, at 462, 471. So did the Court and the Department
of Justice. See, e.g., Kwock Jan Fat v. White, 253 U.S.
454, 457 (1920) (Wong Kim Ark extends to children
born to parents “permanently domiciled in the United
States”); Spanish Treaty Claims Comm’n, U.S. Dep’t
of Just., Final Report of William Wallace Brown, Assistant Att’y Gen. 124 (1910) (“[I]t has never been held
… that the mere act of birth of a child on American
soil, to parents who are accidentally or temporarily in
the United States, operates to invest such child with
20
all the rights of American citizenship. It was not so
held in the Wong Kim Ark case.”).
2. More precedent clashes with plaintiffs’ treatment of mere physical presence in the United States
as determinative.
In the immigration context, this Court has long
recognized that not every alien physically present
within U.S. soil, water, or airspace “has effected an entry into the United States” for “constitutional purposes.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001);
see United States v. Ju Toy, 198 U.S. 253, 263 (1905).
Kaplan v. Tod, 267 U.S. 228 (1925), is instructive.
There, the Court rejected a mere-presence rule when
considering whether children obtain citizenship
through their parents’ naturalization. A mother
brought her daughter to Ellis Island to join her father,
who legally resided in the country. Id. at 229. The
daughter was denied admission, but the outbreak of
the First World War prevented her deportation. Id.
After detaining the girl for nearly a year, the government paroled her. Id. She then lived with her father
in the United States for the better part of a decade. Id.
During this time, the girl’s father naturalized. Id. at
230. And when the government later sought to deport
the girl, she argued that she had obtained citizenship
because she was “dwelling in the United States” when
her father naturalized. Id.
The Court disagreed. It held that the girl never
“lawfully … landed in the United States,” and “until
she legally landed,” she “could not have dwelt within
the United States.” Id. (quotations omitted). Legally,
21
she remained “at the boundary line and had gained no
foothold in the United States.” Id. Absent a permissible “entry,” the Court concluded, “an alien can neither ‘dwell’ nor ‘reside’ within the United States, as
those words are understood in the immigration context.” Lopez-Sorto v. Garland, 103 F.4th 242, 252 (4th
Cir. 2024) (quoting Kaplan, 267 U.S. at 229-30).
This Court has invoked the at-the-border legal fiction time and again. E.g., Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 139 (2020); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215
(1953); Leng May Ma v. Barber, 357 U.S. 185, 189
(1958). Under it, an alien may be “physically within
our boundaries,” but treated under the law “as if he
had been stopped at the limit of our jurisdiction, and
kept there while his right to enter was under debate.”
Ju Toy, 198 U.S. at 263. And that rule applies to aliens who “arrive at ports of entry” or are detained “after unlawful entry,” for example, even if later “paroled
elsewhere in the country” pending removal. Thuraissigiam, 591 U.S. at 139.
The at-the-border legal fiction aligns with the historical domicile-based approach to the Citizenship
Clause. It makes no sense to recognize the “legal fiction of extraterritoriality, wherein ambassadors and
diplomats, though literally present on United States
soil, were considered to be still living in the sending
state,” Swearer, supra, at 143, yet ignore the similarly
well-established legal fiction when it comes to aliens
paroled into the country.
22
D. Post-ratification practice is not dispositive.
Plaintiffs and the lower courts have sought to support their merits position with congressional and Executive Branch practice, which they say has applied a
mere-presence approach for decades. BIO 20-23. To
be sure, “the longstanding practice of the government
can inform our determination of what the law is.”
NLRB v. Noel Canning, 573 U.S. 513, 525 (2014)
(cleaned up). But for a few reasons here, plaintiffs’
historical-practice points prove little about the interpretive question.
To begin, much of the evidence cited by plaintiffs
and the lower courts comprise sources—such as a 1995
Office of Legal Counsel memo—stemming from the
mid-to-late 1900s. See, e.g., Washington, 145 F.4th at
1034-35 (citing Legis. Denying Citizenship at Birth to
Certain Children Born in the U.S., 19 Op. O.L.C. 340
(1995)). This creates a “timing problem”: Evidence
arising over a century after the Fourteenth Amendment’s adoption is “far too late to inform the meaning”
of the Citizenship Clause “at the time of” its ratification. Samia v. United States, 599 U.S. 635, 655 (2023)
(Barrett, J., concurring in part and concurring in the
judgment); cf. Seila Law LLC v. CFPB, 591 U.S. 197,
221 (2020) (dismissing cited historical-practice examples as too “recent”).
Nor is closer-in-time practice merely “inconclusive.” Samia, 599 U.S. at 656 (Barrett, J., concurring
in part and concurring in the judgment). As discussed,
supra 13-17, administrative actions “surrounding the
ratification” weigh against plaintiffs by highlighting
23
that Executive Branch officials viewed parental domicile as relevant to the Citizenship Clause’s application, Rahimi, 602 U.S. at 737 (Barrett, J., concurring).
As far as practice goes, those incidents are on point:
As here, they involve executive officials asserting that
citizenship does not automatically attach based on a
child’s birthplace alone, but turns on assessing parental connection to the United States. See supra 13-17.
Neither plaintiffs nor the courts below have offered
any counters to that “contemporaneous and weighty
evidence of the Constitution’s meaning.” Bowsher v.
Synar, 478 U.S. 714, 723 (1986).
Plaintiffs’ limited body of earlier 20th-century
“practice” is not persuasive on its own terms, either.
BIO 20-23. Congress’s 1940 choice to codify the
Clause’s language only begs this case’s dispute over
what phrases like “subject to the jurisdiction of” and
“in the United States” are best read to mean. Petitioners’ Br. 43-47. Nor do cases making passing references
to broader conceptions of birthright citizenship move
the needle. Cf. 19 Op. O.L.C. at 346 n.15 (1995) (collecting such cases). Many arise only well into the
1900s, so likewise suffer timing flaws. 2 Others either
overread Wong Kim Ark to conflate alienage and
“race” with lawful residency, 3 assume without deciding that presence at birth suffices under the Clause, 4
or mention birthright citizenship only in describing
2 See, e.g., Plyler v. Doe, 457 U.S. 202, 211 n.10 (1982).
3 See, e.g., Morrison v. California, 291 U.S. 82, 85 (1934) (discuss-
ing race).
4 See United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S.
72, 73 (1957); Hamdi v. Rumsfeld, 542 U.S. 507, 510-11 (2004).
24
the factual background or in other dicta. 5 No case “directly” addresses the interpretive question here:
Whether the Citizenship Clause requires conferral of
citizenship based on a child’s mere presence at birth,
no matter the temporary, accidental, or unlawful nature of parental presence. See Swearer, supra, at 197201 (discussing more recent Supreme Court cases).
That leaves later Executive Branch practice from
the mid-1900s to now, which everyone agrees has generally adopted a mere-presence view. But in a case
about the constitutional floor on Fourteenth-Amendment citizenship, it is not determinative that the Executive Branch has been willing to “provide greater
protection than the Constitution demands.” Cf. Brandon L. Garrett, Misplaced Constitutional Rights, 100
B.U. L. Rev. 2085, 2087 (2020); see also Petitioners’ Br.
42-43.
And if the Executive Branch has read Wong Kim
Ark as governing beyond its holding about parental
domicile, its practice is minimally probative. Cf. Peter
Pan Bus Lines v. Fed. Motor Carrier Safety Admin.,
471 F.3d 1350, 1354 (D.C. Cir. 2006) (“[D]eference to
an agency’s interpretation of a statute is not appropriate when the agency wrongly believes that interpretation is compelled….”) (cleaned up). Carrying forward
a plainly flawed reading of a case is not the type of
historical practice that should govern. After all, “evidence of ‘tradition’ unmoored from original meaning is
not binding law.” Rahimi, 602 U.S. at 738 (Barrett, J.,
5 See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 446 (1985).
25
concurring) (quoting Vidal v. Elster, 602 U.S. 286, 32225 (2024) (Barrett, J., concurring in part)).
Along the same lines, even if plaintiffs are right
that some recent federal-government tradition supports their reading, that could not override or alter the
meaning of the Clause as ratified. “The first and most
important rule in constitutional interpretation is to
heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood.” Rahimi,
602 U.S. at 715 (Kavanaugh, J., concurring). That fixation principle is plank one of originalism; the second
rule speaks to interpretive constraint—that “the discoverable historical meaning … has legal significance
and is authoritative in most circumstances.” Id. at 737
(Barrett, J., concurring). Tethering meaning to the
ratified text reflects that “[t]he text of the Constitution
is the ‘Law of the Land’” that controls “unless and until it is amended.” Id. at 715 (Kavanaugh, J., concurring).
Asked to select among historical sources supporting original public meaning and practice of more recent vintage, this Court should favor the former. To
be sure, the “[h]istorical analysis” an originalist methodology requires “can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult.”
McDonald v. City of Chicago, 561 U.S. 742, 803-04
(2010) (Scalia, J., concurring). But such constraints
serve a vital purpose in a system governed by a written Constitution legitimated by popular ratification,
with judges empowered to exercise “neither FORCE
26
nor WILL but merely judgment.” The Federalist No.
78, at 465 (Alexander Hamilton) (Clinton Rossiter ed.,
1961).
II. Plaintiffs Cannot Justify Facially Invalidating the Executive Order.
Now more than ever, it’s crucial that this Court
scrupulously hold plaintiffs and lower courts to the demanding requirements of facial challenges and limit
relief to the unconstitutional applications of a challenged law. Here, plaintiffs cannot successfully make
out a facial challenge. And even if the plaintiffs successfully prove that some applications of the Executive
Order violate the Citizenship Clause, the Court should
limit relief to the unconstitutional aspects and applications.
1. The States have a unique interest in holding
parties and courts accountable to the “demanding requirements” of facial challenges. Moody v. NetChoice,
LLC, 603 U.S. 707, 778 (2024) (Alito, J., concurring in
the judgment). States routinely find themselves defending democratically enacted laws against facial
challenges. And to prevent federal courts from invading the States’ core interest in “effectuating statutes
enacted by representatives of its people,” Maryland v.
King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in
chambers) (quotation omitted), facial invalidation
must remain rare and “hard to win.” Moody, 603 U.S.
at 723.
27
That is especially true now in light of this Court’s
holding in Trump v. CASA, Inc., 145 S. Ct. 2540
(2025). Since this Court limited universal injunctions
in CASA, parties (including plaintiffs here) have deployed strategies to nonetheless seek universal relief—often successfully. E.g., BIO 13 (nationwide putative class-actions); Doe v. Trump, 157 F.4th 36, 5255 (1st Cir. 2025) (third-party standing). While “lax
enforcement” of class-certification and third-party
standing rules risks creating a “significant loophole”
in the rule against universal injunctions, CASA, 145
S. Ct. at 2566-67 (Alito, J., concurring), so too does a
failure to adhere to Salerno’s stringent facial challenge requirements. After all, if parties can creatively
wield these tools to assert thousands (or millions) of
injuries simultaneously and then win a facial challenge, they can effectively simulate a universal injunction. See Moody, 603 U.S. at 756 (Thomas, J., concurring).
That threat is especially acute nowadays when
many challenges (like this one) arise in the pre-enforcement posture. With a limited factual record and
no history of enforcement to guide the inquiry, pre-enforcement facial challenges often ask the courts to issue sweeping relief despite a “basic uncertainty about
what the law means and how it will be enforced.” Arizona v. United States, 567 U.S. 387, 415 (2012).
Wielded unsparingly, “this provides federal courts a
general veto power upon the legislation of Congress”
and State legislatures. Moody, 603 U.S. at 757
(Thomas, J., concurring) (cleaned up). And in a way
not unlike the universal injunction, it “threaten[s] to
short circuit the democratic process by preventing
28
duly enacted laws from being implemented in constitutional ways.” Moody, 603 U.S. at 723 (quotations
omitted); cf. Labrador v. Poe ex rel. Poe, 144 S. Ct. 921,
925 (2024) (Gorsuch, J., concurring in the grant of
stay) (universal preliminary injunctions risk “erroneously suspend[ing] the operation of a law adopted by
the people’s representatives for years on end”).
The plaintiffs’ choice to facially attack the Executive Order “comes at a cost.” Moody, 603 U.S. at 723.
“A facial challenge” is “the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists” in which the
challenged provision “would be valid.” Salerno, 481
U.S. at 745; see Nat’l Treasury Emps. Union v. Bush,
891 F.2d 99, 101 (5th Cir. 1989) (applying “difficult”
facial standard from Salerno to an Executive Order).
Plaintiffs cannot clear that bar.
As discussed, supra 10-17, evidence supports reading the Citizenship Clause to turn on parental domicile or lawful residency. So, under any plausible reading, the U.S. may refuse to reward illicit “birth tourists.” See Petitioners’ Br. 9. These “birth tourists” ordinarily have no ties to the United States and enter
the country on fraudulent visas for the sole purpose of
giving birth and obtaining citizenship for their children. Minority Staff, U.S. Sen. Comm. on Homeland
Sec. & Governmental Affairs, Birth Tourism in the
United
States
(2022)
1,
19-20,
https://perma.cc/C8SAZG8X. Indeed, recent reporting
details an even more disturbing form of birth tourism.
Now, many ultra-wealthy foreign nationals—often
Chinese men—abuse America’s surrogacy system to
29
“commission[] dozens, or even hundreds, of U.S.-born
babies” per father “with the goal of ‘forging an unstoppable family dynasty.’” Katherine Long, et al., The
Chinese Billionaires Having Dozens of U.S.-Born Babies Via Surrogacy, Wall Street Journal (Dec. 13,
2025), https://www.wsj.com/us-news/chinese-billionaires-surrogacy-pregnancy-7fdfc0c3?st=K9gYwE&reflink=desktopwebshare_permalink. A major draw for
these fathers is that—under the prevailing mere-presence rule—each of their children obtains American citizenship at birth. Id. Whatever else the Court might
say about the Citizenship Clause, surely it poses no
obstacle to deterring that straightforward (and unethical) abuse of our immigration laws.
Likewise, this Court’s immigration precedents
strongly suggest that persons encountered at illegal
border crossings have not effectuated legal entry “in
the United States,” even if later paroled. See supra
20-21. And considering that the previous administration paroled in over 2.8 million illegal aliens, that fact
alone creates millions of possible lawful applications
of the EO. See Andrew R. Arthur, Did Joe Biden Really Parole In Nearly 3 Million Aliens?, Center for Immigration Studies (2025), https://perma.cc/XLJ8MNCZ.
And finally, under any reading of Wong Kim Ark,
the executive order is constitutional as applied to the
children of invaders that lack “obedience to[] the sovereign whose domains are invaded.” 169 U.S. at 720.
Indeed, even plaintiffs concede that the children of invaders have always been among the “exceptions” to a
30
pure jus soli approach. BIO 7. On his first day in office, the President declared the crisis at the southern
border an “invasion” under Article IV, Section 4 of the
Constitution, citing to the “national security risks”
posed by “international drug cartels and other transnational criminal organizations” operating at the border and the “sheer number of aliens” entering the
county and “overwhelm[ing] the system.” See Executive Order, “Guaranteeing the States Protection
Against
Invasion,”
Jan.
20,
2025,
https://perma.cc/XHC2-Q766 (“Invasion EO”). The
Executive traditionally enjoys wide latitude to make
such determinations, and facts on the ground provide
support for the President’s “good faith” basis for declaring an invasion. Cf. United States v. Abbott, 110
F.4th 700, 736 (5th Cir. 2024) (Ho, J., concurring in
part). Even under plaintiffs’ broad conception of the
Citizenship Clause, the EO is constitutional as applied
to children born to “aliens invading the United
States.” Invasion EO, supra (capitalization altered).
The bottom line: Plaintiffs thus cannot meet Salerno’s
high bar for a facial challenge. 481 U.S. at 745.
2. This Court should also hold lower courts to established remedial principles. Generally, courts “enjoin only the unconstitutional applications of a statute” or “sever its problematic portions while leaving
the remainder intact.” Ayotte v. Planned Parenthood,
546 U.S. 320, 329 (2006). To that end, an injunction
“must … be limited to the inadequacy that produced
the injury in fact that the plaintiff has established.”
Gill v. Whitford, 585 U.S. 48, 68 (2018) (quotation
omitted); see also United States v. Grace, 461 U.S. 171,
180-83 (1983).
31
As with statutes, the constitutionality of Executive Orders should be assessed provision by provision,
and courts are “obligat[ed]” to use severance “to maintain as much of the order as is legal.” Washington v.
Trump, 858 F.3d 1168, 1172 (9th Cir. 2017) (Kozinski,
J., dissenting); see Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 191 (1999) (assuming “the severability standard for statutes also applies
to executive orders”). Applied here, that rule restricts
any remedy to “enjoin[ing] the unconstitutional applications of the [Order] while preserving the other valid
applications.” Connection Distrib. Co. v. Holder, 557
F.3d 321, 342 (6th Cir. 2009) (en banc).
This means, at minimum, that the lower court
erred in enjoining every application of the EO. Indeed,
the EO can surely be legally applied to “birth tourists”
and those in the country illegally (including parolees).
So even if some unconstitutional applications exist, injunctive relief should be tailored to “enjoin only the
unconstitutional applications … while leaving other
applications in force.” Ayotte, 546 U.S. at 329.
CONCLUSION
This Court should reverse.
32
Respectfully submitted,
BRENNA BIRD
Attorney General of
Iowa
ERIC WESSAN
Solicitor General
OFFICE OF IOWA
ATTORNEY GENERAL
1305 E Walnut Street
Des Moines, IA 50319
(515) 823-9117
Eric.Wessan@ag.iowa.gov
Counsel for Iowa
JONATHAN SKRMETTI
Attorney General of
Tennessee
J. MATTHEW RICE
Solicitor General
Counsel of Record
OFFICE OF TENNESSEE
ATTORNEY GENERAL
P.O. Box 20207
Nashville, TN 37202
(615) 532-6026
Matt.Rice@ag.tn.gov
Counsel for Tennessee
JANUARY 27, 2026
(additional counsel listed below)
33
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General of
Alabama
STEPHEN J. COX
Attorney General of
Alaska
TIM GRIFFIN
Attorney General of
Arkansas
JAMES UTHMEIER
Attorney General of
Florida
CHRISTOPHER M. CARR
Attorney General of
Georgia
DOUGLAS B. MOYLAN
Attorney General of
Guam
RAÚL R. LABRADOR
Attorney General of
Idaho
THEODORE E. ROKITA
Attorney General of
Indiana
KRIS KOBACH
Attorney General of
Kansas
RUSSELL COLEMAN
Attorney General of
Kentucky
LIZ MURRILL
Attorney General of
Louisiana
LYNN FITCH
Attorney General of
Mississippi
CATHERINE HANAWAY
Attorney General of
Missouri
AUSTIN KNUDSEN
Attorney General of
Montana
MICHAEL T. HILGERS
Attorney General of
Nebraska
DREW WRIGLEY
Attorney General of
North Dakota
DAVE YOST
Attorney General of
Ohio
GENTNER DRUMMOND
Attorney General of
Oklahoma
34
ALAN WILSON
Attorney General of
South Carolina
MARTY JACKLEY
Attorney General of
South Dakota
KEN PAXTON
Attorney General of
Texas
DEREK BROWN
Attorney General of
Utah
JOHN B. MCCUSKEY
Attorney General of
West Virginia
KEITH G. KAUTZ
Attorney General of
Wyoming
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.