Unanswered Questions After the Court’s Birthright Citizenship Decision

The U.S. Supreme Court’s decision in Trump v. Barbara may have been the most anticipated of the year. And the decision did not disappoint. In a 5–4 ruling, the Court’s majority affirmed the conventional and sweeping understanding of birthright citizenship, yet four dissenters demonstrated that the question was much closer than anyone had anticipated. Moreover, the Court’s decision raises, and leaves unanswered, several key questions about executive and judicial power.

The Citizenship Clause of the U.S. Constitution’s Fourteenth Amendment provides that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens of the United States. The Immigration and Nationality Act, enacted in 1952, mirrors this language. On his first day in office, President Donald J. Trump issued an executive order deeming that children born in the United States to unlawfully or temporarily present alien parents would not be birthright citizens. The majority of the Supreme Court invalidated this executive order on constitutional grounds. It ruled that “a child born on American soil and subject to American law was made an American citizen” by the Citizenship Clause. The historical “exceptions” for ambassadors, foreign soldiers, and Indian tribes can be explained “by a fiction of extraterritoriality” or “rights of extraterritoriality.”

The dissenters had a range of alternative explanations for the relevant rule and its exemptions, each of which has some support in the historical record. Justice Brett Kavanaugh would have ruled that the Immigration and Nationality Act foreclosed President Trump’s executive order because, he thought, that law was enacted against a background understanding involving a broad interpretation of the Supreme Court’s 1898 Wong Kim Ark v. United States decision. Yet he suggested that the Citizenship Clause itself may in fact guarantee citizenship only to children of U.S. citizen parents.

Justice Samuel A. Alito thought that the constitutional rule was only somewhat broader, arguing that it covered foreign parents but not those “subject to any foreign power,” which was the language of the Civil Rights Act of 1866. On this view, if a child born in the United States would be considered by a foreign nation to be subject to that nation’s obligations of nationality or citizenship, the child would be excluded. The principal dissent by Justices Clarence Thomas and Neil Gorsuch argued that the Citizenship Clause extends to children born to U.S. citizen parents and foreigners domiciled in the United States—because the nation exercises a complete jurisdiction over those parents—but not to children born to temporary visitors. They deferred the question of whether and to what extent unlawfully present aliens might establish a domicile.

Although these dissenting views did not prevail, the Court’s majority opinion affirming birthright citizenship still leaves some unanswered questions about executive and judicial power that had lurked in the background of the case.

The first question is what power President Trump had to interpret either the Citizenship Clause or the Immigration and Nationality Act for purposes of the executive department’s functions. Some commentators had argued that perhaps the U.S. Congress can legislate against expansive birthright citizenship, but the President cannot do so on his own. One possible explanation for this view is that Congress possesses special interpretive authority under section 5 of the Fourteenth Amendment. That is a dubious proposition, however, because, as the Supreme Court held, Congress cannot determine the scope of its own powers. At least, for the purposes of judicial review in cases that come before the courts, the courts must independently interpret the scope of the Fourteenth Amendment.

From an administrative law perspective, moreover, there is abundant reason to think the President can in fact interpret the statutes and Constitution for himself. After the Supreme Court’s decision in Dred Scott v. Sandford, President Abraham Lincoln had to determine whether to issue passports and coasting licenses to free persons of African descent. The statutes authorized passports and licenses for “citizens of the United States.” President Lincoln had his Attorney General interpret the Constitution and laws for his own purposes and concluded, contrary to Dred Scott, that free African Americans were indeed Americans—that is, citizens of the United States. Any such decision would escape judicial review because that grant of a license or passport would not injure third parties, so no party would have standing to sue. Certainly, no one would have a cause of action to bring a challenge. In other words, if there was something wrong with President Trump’s executive order, it was simply that it was wrong on the merits, not that there was something wrong in the President having issued an executive order for purposes of his department’s business.

The more extensive set of unanswered questions involves judicial power. President Lincoln’s constitutional determinations would probably never have been subject to judicial review under then-prevailing understandings of judicial power. What about President Trump’s executive order? What justified judicial review of its conclusions?

To clear some underbrush, citizenship questions can, of course, come before the courts. The reason there were so few antebellum judicial cases involving the question, however—aside from race-related cases in the South—is that rarely did some private right depend on the affirmation or denial of citizenship. Lynch v. Clarke was one such case because inheritance of property was at issue, and, at the time, aliens were generally prohibited from inheriting property. Wong Kim Ark involved the question of citizenship because Wong Kim Ark had been detained and denied entry into the United States; he therefore had a classic cause of action for a writ of habeas corpus.

What authorized the cause of action against President Trump’s executive order? Barbara was not detained and had no habeas cause of action. Barbara was not seeking to inherit property, and so there was no private dispute between two private claimants. No passport had yet been denied, which would permit the aggrieved applicant to have sued under the Administrative Procedure Act. Just why was this a lawsuit at all? It seems that by deciding the case, the Supreme Court acted precisely as a kind of council of revision—a proposed council of the President and federal judges or justices able to veto legislation that the Constitution’s framers rejected.

And even if there were a cause of action, why would a universal remedy be appropriate, rather than a party-specific one? That is an important question not merely for understanding the nature of judicial power and judicial review, but also because the answer on the merits might have required a party-specific answer. The advantage of case-by-case adjudication is that it permits the analysis to focus on concrete facts.

Under the dissenters’ view, that should be obvious. As Justice Gorsuch emphasized, temporary visitors are not domiciled in the United States, but some unlawfully present aliens might be. But even on the majority’s view, there are some questions. The majority dismissed a New York appellate decision, Ludlam v. Ludlam, from 1860 that had rejected Lynch v. Clarke because the state’s highest court took a different approach and seemed to rely on Lynch. But that decision actually presumed that someone born in one country to temporary visitors might elect, soon after reaching adulthood, one citizenship or the other. That the majority did not allow the question to be answered on a case-by-case basis prevents a “right of election” view ever from being explored, let alone taking hold, even though it appears to have been the view of at least some commentators, judges, and elected officials around the time of the Fourteenth Amendment’s adoption.

The birthright citizenship question was one of intense political controversy. It is also a difficult normative question. It may yet be that it would have been better for the Court to allow the question to percolate on a case-by-case basis when parties were actually injured and had real causes of action. The courts would then, at least arguably, have served their dispute-resolution function without immediately usurping the right to resolve a question of tremendous political and normative importance. In that sense, the Barbara decision may be a cautionary tale for all judicial review of administrative action.

Ilan Wurman is the Julius E. Davis Professor of Law at the University of Minnesota Law School.