Some Thoughts on the Court’s Opinion(s) in the Birthright Citizenship Case

Ilya Somin has already covered much of the Trump v. Barbara territory in his posting here on the VC a few days ago [available here], and I agree with everything he writes, including his terse summary: “The 6-3 decision was right, and a contrary ruling would have had horrific results.”

I’ll assume the basic framework of the case is familiar to you all.  If not:  The Citizenship Clause of the 14th Amendment says that anyone “born . . . in the United States and subject to the jurisdiction thereof” is a US citizen. The case turns on the meaning of those five italicized words: “subject to the jurisdiction thereof”. Trump’s Executive Order (#14160 [available here]) says that individuals born here whose mothers are present in the US “unlawfully” are not US citizens.  He asserts that this does not violate the Citizenship Clause because those individuals are not “subject to the jurisdiction of the United States” within the meaning of that phrase – at least, within the meaning of that phrase in 1868, when the Citizenship Clause was added to the Constitution.

Plaintiffs, needless to say, disagree, as does a majority of the Court.

Having now read through the six different opinions,*

*Roberts for the Court, Jackson concurring, Thomas dissenting, Alito dissenting, Gorsuch dissenting, Kavanaugh concurring in the result and partially dissenting. The entire set is available here.

a couple of points struck me as highly unusual and noteworthy.

In particular, Justice Kavanaugh’s separate opinion – concurring (in Part I) in the Court’s judgment (Executive Order 14160 is invalid), dissenting (Part II) on the underlying rationale for that invalidity – is an extremely interesting piece of judicial work, well worth a careful reading.

Justice Kavanaugh votes to invalidate Trump’s Executive Order because, as he says, it “contravene(s) a federal statute.” What statute, you ask? The Immigration and Nationality Act, 8 U.S.C. §1401(a), which “mirrors the text of the Fourteenth Amendment,” providing that “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

I don’t know about you, but up until the moment that I read Justice Kavanaugh’s opinion, I had not registered that there was a statutory claim in this case in addition to the much-talked-about constitutional claim.  But there it is.

As most of you are aware, the Court has a rule – or, more precisely, a prudential practice – of not reaching constitutional issues in cases that can be disposed of on statutory grounds. Kavanaugh says: that’s what we can and should do here.  Individuals born to mothers here illegally are “subject to the jurisdiction of the US,” at least within the meaning of that phrase as it is used in the statute. The Executive Order is, therefore, invalid because it contravenes that statutory command. Case over.  Whether individuals born to mothers here illegally are “subject to the jurisdiction of the US” within the meaning of the Constitution’s Citizenship Clause is a separate question which the Court need not, and should not, address.

He reaches the conclusion that the Executive Order contravenes the statute this way:

1. In 1898, in the case of US v Wong Kim Ark (169 US 649), SCOTUS construed the phrase “subject to the jurisdiction of” as it was used in the Citizenship Clause of the 14th Amendment. The Court held that the Clause stated “the fundamental rule of citizenship by birth” that prevailed at common law, and excluded from birthright citizenship only persons in certain narrow categories recognized at common law as being “exempt from the jurisdiction of this country”: the “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory” and “children of members of the Indian tribes.” All others born in this country are citizens at birth.
2. The Immigration and Nationality Act (8 USC 1401) was first enacted in 1940, and has been amended several times since.
3. We can presume that Congress was aware of our authoritative construction of “subject to the jurisdiction thereof” in Wong Ark Kim when it enacted the statute.
4. Congress’ use of the identical five word phrase in the statute can be taken to mean that it was incorporating the Court’s construction of that phrase into the statute.
5. And if that’s what “subject to the jurisdiction of” the US means in the statute, Executive Order 14160 directly conflicts with it and must be invalidated.

Nice!

It’s pretty neat and tidy, or so it looks to my eyes; Kavanaugh calls the analysis under that statute “straightforward,” and I think he’s correct.  It’s the right result – the Executive Order is placed in the Trashcan. It leaves the complicated constitutional question for a later case where the Court has to decide it in order to dispose of the case.

And what makes Kavanaugh’s interpretative move even more interesting is that he thinks that Wong Kim Ark was wrongly decided and should be overruled![1]

So his position amounts to saying that we should apply an (incorrect) reading of the constitutional text to the statute because Congressional intent is the touchstone for interpreting federal statutes, and Congress was using our (incorrectly-derived) construction of the phrase when it enacted the statute, and it has never revised it since..

I’m not aware, at least off the top of my head, of another case that presents this kind of inverted decision-making structure. It’s a wonderful illustration of the principle that the exact same words may mean one thing in the 14th Amendment and another thing in a federal statute. Context and history matter. Determining what the statutory phrase means requires that we determine Congress’ view of what it meant in 1940, not what the “public understanding” of that phrase may have been in 1868. Wong Kim Ark‘s construction of the Constitutional phrase, whether correct or incorrect, was surely what Congress intended the words to mean in the 1940 statute.  Congress meant these words to mean what we had (wrongly) said the Constitution says.

And here’s what I think is perhaps the most unusual feature of all:  Not one of the other five opinions pays any attention whatsoever to Kavanaugh’s proposed resolution of this case. They either ignore the existence of this statute altogether, or treat is as completely irrelevant to the analysis of plaintiffs’ claim, giving it only a handful of cursory mentions.[2]

Nobody responds to Kavanaugh’s polnt, or explains, even if only in a brief dismissive footnote, where Kavanaugh gets it wrong, and why they are ignoring this statute and deciding this case on constitutional grounds.

I find that most peculiar.

And insofar as the Court doesn’t explain why it is ignoring the statute, we get to speculate about it.  My guess is that the other Justices are embarrassed by their obvious and rather unseemly over-eagerness to decide the constitutional issue, and they are hoping that if they ignore Kavanaugh’s opinion nobody will notice what they’re doing.  [Other ideas? Please deposit them in the Comments below]

[1] Justice Kavanaugh (and, by extension, the entire Court) could have stopped there.  The matter can be disposed of entirely on statutory grounds. Case over.

He doesn’t, however, stop there – though at least he has the good grace to (sort of) apologize for going on to reach the constitutional question:

As revealed by the Court’s opinion with its detailed account of history and precedent, and by the weighty and thoughtful dissents, the constitutional issue is far more complicated than the statutory issue. After reading those scholarly opinions, one thing seems evident: The constitutional issue is not straightforward, much as we might want it to be. That is another reason why, in my respectful view, the Court should have decided the case on the narrow and straightforward statutory ground.

In any event, because the Court addresses the Constitution, and because I respectfully disagree with its analysis of that highly consequential issue, I too will briefly address it. [emphasis supplied]

In Part II of his opinion, he joins the dissenters (Thomas, Alito, Gorsuch) in asserting that the constitutional phrase does not mean what the Court said it means in Wong Kim Ark, (i.e., that the Citizenship Clause grants all children born here, other than those in the very narrow exceptional categories, US citizenship). I will be commenting on that part of the Barbara opinions in a separate blog posting.

[2] Roberts’ opinion for the Court mentions it just once, in the first paragraph, merely to note that the statute “uses the same language” as the 14th Amendment. And you can search the opinions yourself for “1401” to see the other references to the statute, if you want to check my claim that all of them are “cursory.”