The Appeals Court ruling was 95 percent likely, so this is no shocker. But let’s review the case.
Appeal Rejected
Law and Crime reports ‘Insufficient’: Appeals court rejects bid to reinstate birthright citizenship ban as Trump-appointed judge says president’s position ‘has never been recognized by the judiciary’
A three-judge panel on the Ninth U.S. Circuit Court of Appeals declined an emergency motion from the administration seeking a partial stay of a lower court’s nationwide injunction on the measure, writing that the Justice Department had “not made a strong showing that [they are] likely to succeed on the merits” of the appeal. The panel ordered the case to remain on schedule with arguments slated to take place in June.
U.S. Circuit Judge Danielle J. Forrest, who was appointed to the court by Trump during his first term, penned a concurring opinion defending the panel’s decision not to intervene. Forrest reasoned that the administration failed to show that it was entitled to emergency relief because there was no showing that “irreparable harm will occur immediately” without such relief, emphasizing that the executive order would drastically change the understanding of U.S. citizenship.
“Judges are charged to reach their decisions apart from ideology or political preference. When we decide issues of significant public importance and political controversy hours after we finish reading the final brief, we should not be surprised if the public questions whether we are politicians in disguise,” she wrote. “Moving beyond wringing our hands and wishing things were different, one concrete thing we can do is decline to decide (or pre-decide) cases on an emergency basis when there is no emergency warranting a deviation from our normal deliberate practice.”
The appellate court’s ruling comes one day after Baltimore-based U.S. District Judge Deborah L. Boardman on Tuesday issued a five-page order denying Trump’s request for the “stay pending appeal” in which she asserted that the administration is likely to lose the case because the executive order in question seeks to “overrule the Constitution ‘by executive fiat.’”
The Trump administration is widely expected to appeal the case to the U.S. Supreme Court.
Nonsense from the New York Times
A few days ago, a friend told me to look at a guest opinion piece on the New York Times Trump Might Have a Case on Birthright Citizenship by Mr. Barnett, a law professor at Georgetown University, and Mr. Wurman a law professor at the University of Minnesota.
The article is little more than a silly rehash of what “subject to the jurisdiction” means.
The NYT authors go back to 1862 and even Calvin’s Case, a 1608 judicial decision about who were birthright subjects of the English monarch, written by Edward Coke.
What nonsense. A 1608 case has zero merit as the US was not even a country. Anything from 1862 was superseded by the Civil Rights Act of 1866, the 14th Amendment ratified on July 9, 1868 and United States v. Wong Kim Ark 1898.
Link to Appeals Court Ruling
Here’s the Appeals Court ruling State of Washington, et al. v. Trump, et al.
The ruling was as expected. But full arguments will not be heard until June. So, this means little, in and of itself.
However, it also about 95 percent certain the full Appeals Court ruling will be the same. These percentages are my off-the-cuff estimates.
Why I Am Confident
To understand why I remain so confident please consider the detailed 31-Page Ruling by Justice Leo T. Sorokin in the District of Massachusetts, Key Excerpts.
For starters, each plaintiff has standing to sue, because the uncontested facts establish each would suffer direct injury from the EO’s implementation. The plaintiffs are also likely to succeed on the merits of their claims. In a lengthy 1898 decision, the Supreme Court examined the Citizenship Clause, adopting the interpretation the plaintiffs advance and rejecting the interpretation expressed in the EO. The rule and reasoning from that decision were reiterated and applied in later decisions, adopted by Congress as a matter of federal statutory law in 1940, and followed consistently by the Executive Branch for the past 100 years, at least.
A single district judge would be bound to apply that settled interpretation, even if a party were to present persuasive arguments that the long-established understanding is erroneous.
The defendants, however, have offered no such arguments here. Their three main contentions are flawed. First, allegiance in the United States arises from the fact of birth. It does not depend on the status of a child’s parents, nor must it be exclusive, as the defendants contend. Applying the defendants’ view of allegiance would mean children of dual citizens and lawful permanent residents would not be birthright citizens—a result even the defendants do not support.
Next, the defendants argue birthright citizenship requires the mutual consent of the person and the Nation. This theory disregards the original purpose of the Fourteenth Amendment: to recognize as birthright citizens the children of enslaved persons who did not enter the country consensually, but were brought to our shores in chains.
There is no basis to think the drafters imposed a requirement excluding the very people the Amendment aimed to make citizens. Simply put, the Amendment is the Nation’s consent to accept and protect as citizens those born here, subject to the few narrow exceptions recognized at the time of enactment, none of which are at issue here.
Finally, the Amendment requires states to recognize birthright citizens as citizens of their state of residence. The text includes no domicile requirement at all. Each of the defendants’ theories focuses on the parents, rather than the child whose citizenship is at stake. In so doing, these interpretations stray from the text of the Citizenship Clause. The Fourteenth Amendment says nothing of the birthright citizen’s parents, and efforts to import such considerations at the time of enactment and when the Supreme Court construed the text were rejected. This Court is likewise bound to reject such theories now.
1. Likelihood of Success “The sine qua non of th[e] four-part inquiry” governing motions for preliminary injunctions is the first factor: “likelihood of success on the merits.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). This factor weighs strongly in the plaintiffs’ favor. The plain language of the Citizenship Clause—as interpreted by the Supreme Court more than a century ago and routinely applied by all branches of government since then— compels a finding that the plaintiffs’ challenges to the EO are nearly certain to prevail. The Citizenship Clause speaks in plain and simple terms. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const. amend. XIV, § 1.
The words chosen by the drafters and ratified by the states, understood “in their normal and ordinary” way, United States v. Sprague, 282 U.S. 716, 731 (1931), bestow birthright citizenship broadly to persons born in the United States. The text is directed at the person born (or naturalized). It does not mention the person’s parents at all, let alone expressly condition its grant of citizenship on any characteristic of the parents. So, at the outset, the EO and its focus on the immigration status of a child’s parents find no support in the text.
One phrase in the Citizenship Clause is at the heart of the parties’ disagreement. The constitutionality of the EO, and the success of the plaintiffs’ claims, turns on the meaning of “subject to the jurisdiction thereof.” To understand that phrase, however, this Court need look no further than United States v. Wong Kim Ark, 169 U.S. 649 (1898).12 In that case, the Supreme Court meticulously reviewed the contours of citizenship under English and early American common law, under the 1866 Civil Rights Act and the Fourteenth Amendment, and as reflected in legal scholarship and court decisions in the decades leading up to the turn of the twentieth century. See generally id. at 653-704. From these sources, the Supreme Court concluded that “subject to the jurisdiction thereof” was meant “to exclude, by the fewest and fittest words,” the following categories of persons: “children of members of the Indian tribes,” “children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state.”13 Id. at 682. As to all other persons, “the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents,” applied. Id. at 689.14
The defendants accept that this Court is bound by the prior holdings of the Supreme Court. See New Jersey, Doc. No. 92 at 44; Mot. Hr’g Tr. at 48. Nevertheless, they urge the Court to essentially ignore all but a handful of sentences from Wong Kim Ark, arguing the bulk of the majority’s lengthy opinion is dicta.
Lower federal courts are not merely obligated to apply the holdings of Supreme Court decisions; they also “are bound by the Supreme Court’s ‘considered dicta.’
To the extent the thorough analysis in Wong Kim Ark of the Fourteenth Amendment’s common-law foundations, the purpose and intent of its drafters, and its application during the first thirty years after its ratification can be called “dicta” at all, it is undoubtedly the “considered” and “authoritative” sort that this Court is bound to apply. The sheer detail and length of the discussion by the Court’s majority make this plain.
The plaintiffs are not relying on a stray “remark” that lacks “care and exactness,” standing “wholly aside from the question in judgment” and “unsupported by any argument, or by any reference to authorities,” that might not “control the judgment” of a lower court. 169 U.S. at 678. They are “leaning into” the central reasoning of the Supreme Court in support of its holding.
If that were not enough to find that the plaintiffs are likely to succeed on the merits (and it is), the fact that Congress incorporated the language of the Citizenship Clause into provisions of the INA passed more than forty years after Wong Kim Ark cements the meaning of the disputed phrase and provides the plaintiffs an independent avenue to prevailing here.
In the INA, Congress conferred birthright citizenship via statute on several categories of individuals, the first of which is described using language mirroring the Citizenship Clause. 8 U.S.C. § 1401(a) (confirming citizenship of “a person born in the United States, and subject to the jurisdiction thereof”). As the plaintiffs point out, this provision was enacted in 1940 and “recodified” in 1952.
Here, the fundamental rule conveyed by the Citizenship Clause was clear by the time § 1401 was enacted, and the legislators who chose to include the same phrase the Supreme Court already had examined presumably intended the same words would be accorded the same meaning in both contexts.
Beyond sidestepping Wong Kim Ark, the defendants urge the Court to read three specific requirements into the phrase “subject to the jurisdiction thereof.” The defendants contend these requirements are necessary to ensure adherence to the phrase’s original meaning. None of these requirements, however, find support in the text itself or the cases construing and applying it. And, more importantly, each of them, if applied as argued, would prevent the Citizenship Clause from reaching groups of persons to whom even the defendants concede it must apply.
A child born here is both entitled to the government’s protection and bound to adhere to its laws. This is true regardless of the characteristics of the child’s parents, subject only to the narrow exceptions identified in Wong Kim Ark. Allegiance, in this context, means nothing more than that. See id. at 662 (“Birth and allegiance go together.”). As James Madison explained: It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will be therefore unnecessary to investigate any other.
Next, the defendants seek to graft concepts of social-contract theory onto the “jurisdiction” clause of the Fourteenth Amendment by arguing birthright citizenship requires “mutual consent between person and polity.” New Jersey, Doc. No. 92 at 45. The defendants again center their argument on the parents at the expense of the child whose birthright is at stake—perhaps, in part, because infants are incapable of consent in the legal sense.
This argument fares even worse than the first. The Fourteenth Amendment enshrined in the Constitution language ensuring “the fundamental principle of citizenship by birth” in the United States applied regardless of race—including, and especially, to formerly enslaved persons. 169 U.S. at 675; see Afroyim v. Rusk, 387 U.S. 253, 262-63 (1967). The defendants do not (and could not) deny this. Enslaved persons, of course, did not “consent” to come to the United States or to remain here. They were brought here violently, in chains, without their consent. These conditions persisted after their arrival. Against this backdrop, it verges on frivolous to suggest that Congress drafted, debated, and passed a constitutional amendment, thereafter enacted by the states, that imposed a consent requirement necessarily excluding the one group of people the legislators and enactors most specifically intended to protect.
Finally, the defendants seek to transform the use of the term “reside” at the end of the Citizenship Clause into a basis for finding that the “jurisdiction” phrase eliminates any person without a lawful “domicile” in the United States. The defendants contend that persons here with temporary visas retain “domiciles” in their native countries, and persons here without lawful status cannot establish a true “domicile.” And so, the argument goes, they cannot “reside” in any state, and they remain outside the “jurisdiction” of the United States for Fourteenth Amendment purposes. This, once again, shifts the focus away from the child and the location of birth to the parents and the status and duration of their presence in this country.
In sum, the defendants invite the Court to adopt a set of rules that work (except when they don’t). None of the principles the defendants advance are sturdy enough to overcome the settled interpretation and longstanding application of the Citizenship Clause described above. Each principle, applied uniformly, would lead to unintended results at odds with the text, meaning, and intent of the Fourteenth Amendment—and, in some instances, with the parameters set out in the EO itself.
It is difficult to imagine a government or public interest that could outweigh the harms established by the plaintiffs here. Perhaps that is why the defendants have identified none. Instead, they point only to the Executive Branch’s discretion in matters of immigration. New Jersey, Doc. No. 92 at 49. But this case is not about how “to manage the immigration system.” Id. It is about the Constitution’s guarantee of citizenship by virtue of birth.
III. CONCLUSION “What the Constitution has conferred neither the Congress, nor the Executive, nor the Judiciary, nor all three in concert, may strip away.” Nishikawa, 356 U.S. at 138 (Black, J., concurring). Here, the Constitution confers birthright citizenship broadly, including to persons within the categories described in the EO. Under the plain language of the Citizenship Clause and the INA provision that later borrowed its wording, and pursuant to binding Supreme Court precedent, the Court concludes that the plaintiffs’ constitutional and statutory challenges to the EO are likely to prevail, the plaintiffs face serious and irreparable harm in the absence of relief, the defendants face no cognizable harm from a preliminary injunction, and the public interest is served by preventing the implementation of a facially unconstitutional policy.
Comments from my Legal Expert
Sarokin has lived up to his reputation. This is a very good opinion. As you can see, his analysis is crafted carefully to appeal to the textualists.
And he makes a very good analysis of the law and the point I’ve made about how a district court is really powerless to reverse a Supreme Court decision.
Despite the obvious nature of this, other friends and readers keep asking silly questions and making silly comments. Let’s go over them.
The following Q&A is mostly from my previous post A Fourth Federal Judge Blocks Trump’s Birthright Citizenship Order
Q: “Why would we want a policy that encourages illegal entry?”
A: How does it matter? The SC does not make rulings on the alleged wisdom of laws. It only decides constitutionality of laws. And the 14th is crystal clear. So are multiple subsequent rulings.
Q: Last I saw I think the polls were 60-40 on my side.
A: So what?
Q: No European country follows birthright citizenship in this manner.
A: So what? Does the Supreme Court cite Spanish law in its rulings?
Q: A 1608 case could be very helpful to the court in determining what was meant in the late 1700s by the phrase ‘subject to the jurisdiction of’.
A: Absurd. A 1608 case is meaningless given the clear intent of the 14th Amendment and several key subsequent rulings.
Q: Why is it only Illegals are given this Citizenship, everyone else who came in went thru all the Laws to become a Citizen some as long as 7 yrs it took We do things in this Country that are NOT done elsewhere?
A: That silly comment got a lot of likes. Actually, “everyone” gets birthright citizenship. And if something needs to be done then 1) It needs to be well thought out 2) Done by a Constitutional Amendment
I am somewhat flabbergasted by a lawyer’s comment to my post regarding a meaningless 1608 case.
My friend who has argued many Supreme Court cases and graduate top of Harvard Law Review commented “Randy Barnett of Georgetown is my old classmate and friend. He went to Northwestern University as an undergrad and we had good times as young men. Once I got on the Review, I was pretty consumed and saw less of him, but we still partied a bit. Poor guy has spent his life in the small conservative minority among law professors, for which I admire him. And yes, relying on a 1608 case in litigation that is about an Amendment that was passed in 1868 is not particularly good lawyering. And, of course, it does not address the res judicata point.“
Not particularly good, or outright bad? Just because there are two sides does not mean one of them is viable.
Res Judicata
Res judicata refers to the principle by which one judgment has a binding effect on subsequent proceedings.
My friend comments “I cannot think of a clearer case for its application.”
Recent cases may be easier to understand. What about a couple who came into the US illegally 25 years ago at age 35? They had kids who are now suddenly not citizens. Those kids might have kids who are not citizens then either.
District Judge Jason L. Riley brings yet another complication into play, that of children of slaves illegally in the US.
That is something I had not even considered.
Trump wants to fix that by changing the 14th Amendment from this point forward. Please reflect on the silliness of an executive order to do that.
Nothing Is Certain Until It’s Done
The person who cited the irrelevant 1608 case says nothing is certain. OK, but what are the odds?
I asked my friend, who I know to very cautious about certainty, and he commented that it was about 50 percent the the Supreme Court will even hear the case.
But if they do, then it is about 80 percent Trump loses.
Here is the math: 0.50 * 0.20 = 0.10 * 100 = 10 percent.
I think that is high because I have a known cautious friend. But here’s his reason “There is politics going on at Supreme Court.”
Understood, but it will take nauseating hoops to get there. That’s your 10 percent chance, I believe at best.