Posted on 04/20/2026 12:48:02 PM PDT by Bruce Campbells Chin
The future of President Donald Trump’s executive order attempting to limit access to birthright citizenship is now positioned for a final decision from the Supreme Court. Questioning from the justices...suggests an icy reception for the Justice Department’s claim that the constitutional guarantee of citizenship turns on an innovative interpretation of the legal concept known as “domicile.”
***
Trump’s executive order...claims that the 14th Amendment grants U.S. citizenship to children born in the United States depending on the citizenship or immigration status of their parents. The amendment’s citizenship clause provides that a person becomes a citizen “of the United States and the state wherein they reside” if they are born in the United States and are “subject to the jurisdiction thereof.”
To successfully defend the constitutionality of Trump’s order, U.S. Solicitor General D. John Sauer will have to convince a majority of justices on three fronts. First, that “subject to the jurisdiction thereof” means a person is “domiciled” in the United States. Second, that domicile should be interpreted to require legal permission to live in the United States indefinitely as a permanent resident, the most privileged form of immigration status, rather than temporarily or altogether without the federal government’s permission. Third, that children born in the United States acquire citizenship at birth only if their mother was domiciled in the country at the time of the child’s birth.
The text of the citizenship clause does not use the term domicile, but the Trump administration argues that it is implied. Sauer, who is the federal government’s lead attorney before the Supreme Court, argued that “reside,” which does appear in the citizenship clause (in terms of state citizenship), “means domicile in the Constitution.” For children to acquire U.S. citizenship at birth, the constitutional provision “presupposes domicile,” he told the justices.
(Excerpt) Read more at scotusblog.com ...
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They probably already do that now.
understood
you’re probably right
Did you even read the post to which I was responding?? It was citing to the Naturalization Act of of 1975, and the requirement to "renounce forever all allegiance and fidelity to any foreign prince...." None of that is applicable to newborns.
If you look at Wong Kim Ark, here's the key language, and I'm bolding the relevant point: "The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution
This is why those who read "subject to the jurisdiction thereof" as some kind of loyalty test where you can't hold any kind of allegiance to another sovereign are simply...wong. The Court clearly had zero issue with his parents being subjects of the Emperor of China, and that had no impact on Wong's right to birth citizenship. The only thing they noted relevant to China is that his parents "are not employed in any diplomatic or official capacity under the Emperor of China."
That last clause was squarely in the "diplomatic immunity" interpretation of the 14th, not the broad "loyalty" interpretation some here are advocating.
This language from Wong explains why the Solicitor General adopted the "domicile" argument. Wong kills the argument that there is no birthright citizenship if the parents are mere citizens of another country. So instead the SG focused on the Wong Court's use of "domicile", and tried to argue that you can't legally be "domiciled" in the country if you are here illegally.
I personally think that is the correct argument for him to have made. Although I think he should also have made the argument about the lack of immigration law at the time made it impossible for the 14th to affirmatively address the issue of citizenship for illegals, and that means the issue should be left to Congress.
WE THE PEOPLE, needs to be the defining distinction.
That’s the Immigration Act of 1795, not 1975.
I think that is a reasonable interpretation. I also don't think that if it is "close", the Court should take the issue forever out of the hands of Congress by making it a Constitutional right. And I think the fact that the class of "Illegal aliens" didn't even exist at the time the 14th was adopted alone makes it "close".
The argument I don't buy is the whole "loyalty" argument, which essentially would exclude the children of anyone who is the citizen/subject of another country, whether they are here legally or not.
Did you read paragraphs 3 and 118 in Wong where the Supreme Court establishes its appellate scope? The Court must limit its ruling to the case before it, and that case was about the newborn of permanent resident aliens.
The Court defined the question it was asked to resolve in paragraph 3, and then ruled on it in paragraph 118 based on domicile, not loyalty. That's the scope of Wong, and everything else in between is non-binding dicta.
There is nothing that defines the citizenship of the children of nonimmigrants because Wong did not settle that.
The loyalty question is regarding naturalized citizens; the domicile question is regarding permanent resident aliens, as decided in Wong.
-PJ
My point is that there are others on this thread making a very broad "loyalty" argument that you can't get birthright citizenship even if your parents are here legally if they are citizens/subjects of another country. For example, this is what was said in the post to which I initially responded:
Why would a born-here child have different requirements for citizenship than a naturalized person? The answer is the key - they don't.
Well, yes they do. And I think you agree.
I think the argument that SG made was really the only route open to him because going for "and subject to the jurisdiction thereof" is a dead end. I think the SG's argument is a stretch, but like I said, I think it's better to hold that the 14th doesn't address the issue of illegals at all, and so leave the issue up to Congress, rather than take the huge step of SCOTUS giving birthright citizenship to the children of illegals.
Although I fully expect Trump to lose because he doesn't have that power either. It's up to Congress. However, fighting this losing battle on the Executive Order might have been worth it just to establish that Congress should take it up.
I do now, but in my defense I say were were cross-posting and my posts were referring to your prior posts.
We're now caught up.
-PJ
Maybe I posted too soon.
When you say "even if your parents are here legally," there are degrees of being here legally.
A tourist is here legally, if only on a six-month nonimmigrant visa. But the tourist attests that they have a permanent domicile in their home country that they have no intention of abandoning.
A permanent resident alien is also here legally, but that person attests that they are abandoning their home country domicile with no intention of returning, and are establishing a new permanent domicile in the United States.
The Supreme Court in Wong ruled on the latter case, and was silent on the former case.
-PJ
Fair enough - I can see the “domicile” or even “reside in” argument excluding those with a temporary visa.
And if they are excluded, then anyone with no visa at all must also be excluded.
-PJ
Well sure. Like I said, I’d come down on the side of the 14th Amendment not granting citizenship to the children of illegals. Just not sure the Court will come out that way because it depends on that whole reside in/domicile thing. I think it is correct, but I get why others don’t.
I’ve been reading about the debates in Congress on the 14th Amendment. Interesting ‘stuff when we consider what was discussed and meant in the 1860’s vs. what is now meant. I had read about the discussion on Gypsies in the debates before but only superficially. Took the time to read it more deeply.
The issue of immigration as known at the time was discussed. Senator Edgar Cowan specifically brought up Gypsies. Cowan discussed domicile, allegiance, entering the country, etc.
For example, via the Amicus Curiae brief of Gerald Magliocca (at https://www.supremecourt.gov/DocketPDF/25/25-365/395294/20260203111938269_260104a%20AC%20Brief%20for%20efiling.pdf), he makes an interesting point about Gypsies being discussed as not meeting the requirements for domicile and allegiance, yet children born of Gypsies in the US being US citizens.
During the debates, Cowan stated that Pennsylvania should be able to expel Gypsies because “... they invade her borders; who owe to her no allegiance; who pretend to owe none; who recognize no authority in her government; who have a distinct, independent government of their own—an imperium in imperio; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen.” - see Cong. Globe, 39th Cong., 1st Sess. 498 (1866) (statement of Sen. Cowan)
Magliocca makes the case that “the Thirty-Ninth Congress affirmed that native-born Gypsy children were birthright citizens even though their parents lacked allegiance or a domicile.”
Congress rejected Cowan’s concerns outright. Cowan voted against the 14th Amendment.
For whatever reason, Congress during the debates on the 14th Amendment made a conscious choice to use wording in the 14th Amendment to allow children - including Gypsy children - born in the US to become citizens, even though regarding Gypsy children:
a) their parents may not have been (and probably were not) US citizens;
c) their parents had no domicile in the US as understood at the time;
d) their parents had no allegiance to the US as understood at the time
Robets needs to cite paragraphs 3 and 118 and say that was the controlling ruling and that this Court reaffirms that Wong grants citizenship only to the children of permanent resident aliens.
Therefore, the newborn of people here on nonimmigrant visas or no visa at all are not citizens under 14A via Wong.
Roberts could go further and say that the case before it was not an appellate case that arose from a person here on a nonimmigrant visa or no visa at all, and so it is not ruling on those cases.
In fact, the actual case Barbara v. United States is filed on behalf of the children of non-citizens who are claiming they are harmed by the denial of citizenship. Under the reading of naturalization and allegience, the real plaintiffs should be the parents who chose to come here temporarily or illegally, and who chose not to pursue naturalization. They are asking the Court to give their children something that they, through their own actions or inactions, could not give.
-PJ
That is the assertion that is under debate, that is, that the "conscious choice" was what you just said - to allow children born in the USA, with no other qualification, to become citizens.
That is what Wong supposedly said "no" to. Born here is not enough, subject to the jurisdiction thereof is not enough either. One must be born or naturalized here, AND subject to the jurisdiction thereof. "Subject to the jurisdiction thereof" is an allegience question as defined in the naturalization process and assumed in the natural born case.
But 14A did not intend for people to attain citizenship via means that are less rigorous than naturalization, otherwise naturalization becomes superfluous.
Why go through the rigors of the naturalization process when one could simply pop out citizens without it?
-PJ
Just a note that there is no such phrase in Janus.
The question revolves around indians.
Being as indians were foreigners of their respective tribes, the 14th amendment did not grant them citizenship.
So Trump is in fact correct. The 14th amendment is just a black people amendment and nothing more.(respectfully)
The question revolves around indians. Indians were not subject to the jurisdiction therof of the U.S. government.
Indians were subject to the tribal council of Cherokee, of Seminole, of whomever the tribe happened to be.
Each tribe was considered foreign. The 14th’s authors said it simply, they said it succinctly, and the plain-letter text of the 14th Amendment honored this distinction for basically a half century.
Indians. Even the textualists cannot escape this no matter how hard they try. Indians.
Indians. Yep.
From Janus ¶ VI:
The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini, supra, at 235. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: “This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Citizens United, supra, at 362–365 (overruling Austin, 494 U. S. 652); Barnette, 319 U. S., at 642 (overruling Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940)).
Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood.
The same would reasonably be applied to Wong and the reliance of the dicta of ¶ 93.
Again, my apologize for the shortcutted citation.
-PJ
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