THE WAR ROOM WITH STEPHEN K. BANNON, APRIL 1ST, 2026 (EP.5263)

Summary

Real America’s Voice Podcast: THE WAR ROOM WITH STEPHEN K. BANNON

Episode: April 1st, 2026 (Ep. 5263)
Theme: Birthright Citizenship, the 14th Amendment, and the Supreme Court Showdown

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Episode Overview

This historic episode centers on the Supreme Court’s oral arguments over the 14th Amendment’s Citizenship Clause and President Donald Trump’s executive order challenging the established principle of birthright citizenship. The discussion features live analysis from legal commentators, on-the-ground reporting from the Supreme Court steps, and segments of real-time argument between government attorneys, justices, and the Solicitor General’s Office.

The stakes are high, as the case weighs the very definition of what it means to be an American citizen and how citizenship may be proven if the established understanding changes. The episode juxtaposes legal history, textual analysis, public policy, and the potential consequences for millions of Americans.

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Key Discussion Points

1. Why Is This Before the Supreme Court?

(00:04-01:50)

• The 14th Amendment was intended to overrule Dred Scott and guarantee citizenship to anyone born in the U.S.
• A new executive order from President Trump on his first day of his second term seeks to modify the conventional understanding of the Amendment, specifically questioning “subject to the jurisdiction thereof.”
• Legal analysts discuss the implications: if citizenship by birth is undermined, a simple birth certificate may no longer suffice as proof.
  • Quote [01:58]: “If he gets his way with this, a birth certificate won't be enough... how are people supposed to prove their citizenship in this country if being born here does not qualify?” — Legal Analyst/Commentator

2. The Scene at the Supreme Court

(03:16-05:10)

• Live coverage from outside the Supreme Court captures a carnival-like, mostly pro–birthright citizenship crowd; only a small faction supports the executive order.
• Law enforcement hasn’t had to intervene due to the peaceful yet passionate mood.
  • Quote [04:21]: “It’s a carnival like atmosphere... overwhelmingly for the birthright citizen position. They really know how to deliver a crowd.” — Neil McCabe, Reporter

3. Arguments from the Mass Deportation Coalition

(05:53-06:37)

• Mike Kao commends Trump’s effort, framing the existing policy as “suicidal,” claiming it is abused through border crossings and foreign "birth tourism."
  • Quote [05:53]: “It'll be one of the biggest, you know, legal victories... common sense stuff. Everyone's laughing in America for having a policy that, you know, people could just jump the border and have kids and then they're magically citizens.” — Mike Kao

4. Government Argument: “Subject to the Jurisdiction Thereof”

(06:48–41:07 et seq.)

• General Sauer, the government’s attorney, argues that the clause was intended to exclude children of temporary visa holders and people in the country illegally—drawing from the Civil Rights Act of 1866, congressional debates, and the 1898 Wong Kim Ark Supreme Court case.
  • Jurisdiction, Sauer maintains, implies “direct and immediate allegiance,” tied to legal domicile.
  • Raises concern about modern abuses: “birth tourism,” outlier status among global nations, and pull factors for illegal immigration.
  • He asserts children born to those not lawfully domiciled are outside the Clause.
  • Quote [07:46]: “Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship... It operates as a powerful pull factor for illegal immigration.” — General Sauer
• On Dred Scott:
  • The Amendment was to overturn Dred Scott, but even then, Congress focused on domicile and allegiance.
• Exceptions Are Narrow:
  • Ambassadors' children, foreign public ships, tribal Indians—these are historic exceptions, but Sauer asserts they signal a principle that can extend to “sojourners” and, by extension, modern undocumented immigrants.
• On Wong Kim Ark Case:
  • Sauer interprets the majority as hinging on domicile, not a strict “born on soil” rule.
  • Justices vigorously challenge whether the holding in Wong Kim Ark supports this—pointing to its repeated affirmations of common law “jus soli” (birthright) citizenship.

5. Supreme Court Justices Challenge the Government’s Theory

(Throughout Oral Argument)

• Justices highlight the sparse historical record of “domicile” being the linchpin and suggest the text and history invoke the well-known common-law rule: anyone born in the country (except ambassadors' children, etc.) is a citizen, regardless of parentage.

  • Quote [21:19]: “Where does this principle come from?...the first Meaning is like if you're subject to jurisdiction, you're subject to the authority of.” — Justice Kagan
  • Quote [31:33]: “Doesn't it make the domicile for the purpose of the 14th amendment turn then ultimately on Congress's will in a way that the framers did not intend? I mean, my understanding was the framers put this citizenship clause into the Constitution to prevent future Congresses from being able to affect citizenship in this way.” — Justice Jackson

• Justices also challenge the practicality of determining parent domicile at birth and the possibility of millions losing secure citizenship even when born on U.S. soil.

6. Solicitor General’s Argument: Defending the Mainstream Understanding

(75:36–End)

• Ms. Wang, for the Solicitor General, robustly defends the mainstream rule: birthright citizenship is guaranteed to nearly all born in the U.S., with just a limited set of exceptions (ambassadors’ children, tribal members, war enemies’ children in occupied territory, etc.).

  • The rule was set to be universally understood and placed out of reach of government interference.
  • She argues that Wong Kim Ark's “domicile” references are factual, not determining the rule; the case and subsequent authorities affirm the English common-law principle.
    • Quote [75:36]: “Ask any American what our citizenship rule is and they'll tell you everyone born here is a citizen alike. That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”—Ms. Wang, Solicitor General’s Attorney
    • Quote [78:12]: “All of the exceptions involve situations where that US born child is not subject to the jurisdiction of the United States because that extraterritoriality, that fiction of extraterritoriality, the interaction of another sovereign between the United States jurisdiction and that person applies to the child as well as to the parent.” — Ms. Wang

• Reaffirmation of Universal Principle: Debate and case law since the 1860s consistently accepted that children of immigrants—even unwanted groups—born here are citizens.

  • Quote [114:19]: “Even the Know Nothing Party members of Congress believed that the children born in the United States to those Irish immigrants were citizens like anyone else. That’s the intuition that the framers of the 14th Amendment had.” — Ms. Wang

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Notable Quotes & Memorable Moments

• “If he gets his way with this, a birth certificate won't be enough.” — Legal Analyst/Commentator ([01:58])
• “Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations...” — General Sauer ([07:46])
• “Ask any American what our citizenship rule is and they'll tell you everyone born here is a citizen alike...” — Ms. Wang ([75:36])
• “Where does this principle come from?...the first Meaning is like if you're subject to jurisdiction, you're subject to the authority of.” — Justice Kagan ([21:19])
• “Doesn’t it make the domicile for the purpose of the 14th amendment turn then ultimately on Congress's will in a way the framers did not intend?” — Justice Jackson ([31:33])

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Timestamps for Major Segments

• [00:04–01:58]: Framing the Supreme Court case—why birthright citizenship is under scrutiny
• [03:16–05:10]: Live reporting from the steps of the Supreme Court
• [06:48–41:07+]: Government’s oral argument (General Sauer): legal history, exceptions, allegiance, and policy
• [75:36–118:12+]: Solicitor General’s argument (Ms. Wang): historic rule, case law, and challenges to government’s reading
• [01:58, 07:46, 21:19, 31:33, 75:36, 78:12, 114:19]: Key quotes and pivotal commentary

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Flow and Structure

The episode unfolds in real time, paralleling the live Supreme Court hearing. It shifts from the theoretical and historical grounding of the Constitutional clause to the practical, human ramifications of the President’s policy and the legal arguments. It crafts a tapestry of legal, cultural, and political forces defining American citizenship and leaves listeners acutely aware of the moment’s magnitude—historic, contentious, and deeply consequential.

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Summary: For Listeners Who Missed It

In this landmark episode, the War Room captures the live legal, political, and social drama of the Supreme Court’s reevaluation of birthright citizenship. Both sides are robustly aired: the government’s originalist, domicile-based restriction vs. the historic, nearly-universal “born on soil” principle. The practical, moral, and legal implications are hotly debated—heralding what may be the most transformative Supreme Court decision on American citizenship since Reconstruction.

Transcript

[Host/Moderator]

This is an iHeart podcast.

[General Sauer (Government's Attorney)]

Guaranteed Human.

[Legal Analyst/Commentator]

And so after the Civil War, the 14th Amendment was enacted principally to undo Dred Scott, meaning that enslaved people, their children, are citizens and will forever more be citizens. In fact, what the 14th Amendment says is that anyone born in this country are naturalized. Right. And subject to the jurisdiction thereof. Citizens. And so the debate now is what does that phrase mean, subject to the jurisdiction of. There's an 1898 Supreme Court case, Wong Kim Ark, that seems to answer the question. The President and his team took another swing at it. And so to answer your question, why is this before the Supreme Court? It's because the President issued an executive order on his first day in his second term trying to undo what we think is the common understanding of the 14th Amendment.

And that's the problem I have with Donald Trump, because he doesn't give a damn about that. He doesn't care about that, because he wants to get his way. And he wants to appease a very small sect of Americans who don't like their fellow Americans. And they don't like the people who are coming here because they don't look like them, they don't sound like them, they don't have their hair like them, they don't, they don't talk like them, they don't make the movements that they've defined as Americans. So if nothing else, the Supreme Court tomorrow, from where I see, can settle that piece that this, you were born here, you're an American citizen regardless of your parents status, regardless of your granddaddy's status, regardless of the color of your skin or where you're from. That, to me, is an important aspect of this. The flip side of that coin is what Donald Trump thinks. And I would love to get your thoughts when you look at those two pieces. Donald Trump thinks that his way to win the argument is to basically crap all over the judges.

Sometime this summer, a majority of the justices come back and say, we agree with Donald Trump. How then are you able to prove you are a citizen in this country? Because if he gets his way with this, a birth certificate won't be enough. And then I juxtapose that with the SAVE Act. They're saying you need a passport and a birth certificate. How are we, how are people supposed to prove their citizenship in this country if being born here does not qualify?

Right.

So if your question is, could it be messy if the Supreme Court goes the other way? Yeah, absolutely. And most recently, Simone, in the tariffs case, without getting into sort of the nuts and bolts of it, the supreme court ruled one way but didn't quite explain how the remedy would work. So is this a proactive remedy, meaning only children subsequently born? That's what the executive order seems to posit. Is it a retroactive order, meaning it would apply to people already born in this country who we believe are citizens? I doubt it. That seems completely unworkable. But in terms of fashioning a remedy, if the Supreme Court rules contrary to our common understanding, you're right, it could be Messy.

[News Anchor/Reporter]

It's Wednesday, the 1st of April, the year of our Lord 2026, a historic day. We're going to go live to the Supreme Court. The President of the United States, I think, in an unprecedented move, is at the court today. He will listen to the oral arguments. Mike hell, Mike Davis will join me. Neil McCabe is there.

[Legal Analyst/Commentator]

Also.

[News Anchor/Reporter]

At 6:24pm Eastern Daylight Time today there's scheduled to be a launch of a live crew of astronauts on a journey to the moon. And then at 9:00pm tonight, the President will address the nation about his plans on the war in Iran. So a big news day. Real America's Voice will be here all day covering it all, including special coverage at 9 o' clock tonight. That'll go to 11 o' clock or midnight as circumstances dictate. Let's go quickly to Neil McCabe at the Neil McCabe's outside the Supreme Court. Neil, put us in the room. We know the President has gotten to the building a few minutes ago. What's going and by the way, we're going to go to live coverage of the hearing. It jumped back and forth between Mike Cal and Mike Davis for assessments. Neil McCabe, what is going on outside? Sounds like a festival.

[Neil McCabe (Reporter)]

Yeah, it's a carnival like atmosphere here outside the Supreme Court. Steve Mostly supporters of birthright citizenship, but there are a few people who are supporting the President's position that it is not soil, but actually your circumstances, your parents and if you are under the jurisdiction of the United States, which is going to be the thrust of John Sauer's arguments today, he's the Solicitor General. The line was forming early, early this morning for the open seats. And so it's like it's very, very exciting here. Not a lot of back and forth. The police haven't had to separate the sides or anything like that because it's so overwhelmingly for the birthright citizen position. They really know how to deliver a crowd.

[Justice (Supreme Court Justice)]

STEVE

[News Anchor/Reporter]

oh yeah, of course. Neil, just hang on for one second. Stay right there. Outside the Supreme Court, Mike Howe, huge day today. Mass Deportation coalition, huge story In Politico, if we can get that up. And you actually launched your action plan on exquisite timing coming when the importance of this issue is so vital to this republic that the President, United States, in an unprecedented move, goes to hear the oral arguments at the Supreme Court on this historic case of around the 14th amendment and birthright citizenship. Talk to me your thoughts about that in the launch today of the Mass Deportation Coalition.

[Mike Kao (Mass Deportation Coalition)]

Yeah, so the birthright citizenship case is absolutely huge. It'll be one of the biggest, you know, legal victories I think we have seen. And sometimes, should it be secured, it's just common sense stuff. Everyone's laughing in America for having a policy that, you know, people could just jump the border and have kids and then they're magically citizens, and then it turns into millions and millions in the US doesn't even know how many, and they don't keep track. And we're seeing China abuse it with birth tourism. It is just really suicidal policy.

[General Sauer (Government's Attorney)]

And.

[Mike Kao (Mass Deportation Coalition)]

And I applaud President Trump for, you know, staying the course and, you know, going there today to try to see this one through. So hopefully he gets that victory. But from the Mass Deportation Coalition, our plans today are focused on rolling out this massive playbook we released this morning, which proves that a million deportation.

[News Anchor/Reporter]

Mike, can you hang up? Mike, Mike, Mike, can you hang on for one second? I want to go live. John Sauer is actually addressing the court. Just hang her for one second. Mike Kao, head of the Mass Deportation Coalition. Let's go live. Supreme Court.

[General Sauer (Government's Attorney)]

When Congress used the term not subject

[Justice (Supreme Court Justice)]

to any foreign power in the Civil

[General Sauer (Government's Attorney)]

Rights act of 1866, it rejected the

[Justice (Supreme Court Justice)]

British conception of allegiance. Senator Trumbull explained that subject to the jurisdiction thereof in the clause means not owing allegiance to anybody else.

[General Sauer (Government's Attorney)]

And in 1884, this court recognized that

[Justice (Supreme Court Justice)]

subject to the jurisdiction means owing direct and immediate allegiance.

[General Sauer (Government's Attorney)]

The clause thus does not extend citizenship

[Justice (Supreme Court Justice)]

to the children of temporary visa holders or illegal aliens.

[General Sauer (Government's Attorney)]

Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status

[Justice (Supreme Court Justice)]

that creates the requisite allegiance.

[General Sauer (Government's Attorney)]

And the text of the clause presupposes domicile. For decades following the clause's adoption, commentators recognize that the children of temporary visitors are not citizens and illegal aliens lack the legal capacity to establish domicile.

[Justice (Supreme Court Justice)]

Here,

[General Sauer (Government's Attorney)]

unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules. It has spawned a sprawling industry of

[Justice (Supreme Court Justice)]

birth tourism as uncounted thousands of foreigners

[General Sauer (Government's Attorney)]

from potentially hostile nations have flocked to

[Justice (Supreme Court Justice)]

give birth in the United States in

[General Sauer (Government's Attorney)]

recent decades, creating a whole generation of

[Justice (Supreme Court Justice)]

American citizens abroad with no meaningful ties to the United States. I welcome the Court's questions.

[Justice Thomas]

General Sauer, before we get into the broader national issues, would you start with Dred Scott? Dred Scott was a case about state citizenship. It was a diversity case. The and of course we know what Chief Justice Taney did with that. How does the citizenship clause respond specifically to Dred Scott and answers or changes or corrects its answer as to citizenship. The other point is the citizenship clause refers not just to national citizens citizenship, but also to state citizenship. Are we to have two different definitions for those? It's one word, citizens of the United States and citizens of the state wherein they reside. So as you begin, I'd like you to go back at the beginning and be more specific about the answer. And I want you to to explain whether or not those two definitions are the same or related and what state citizenship is based on.

[General Sauer (Government's Attorney)]

Thank you, Justice Thomas. I'll maybe start by addressing Dred Scott. You know, as, as you alluded to

[Justice (Supreme Court Justice)]

the fact Dred Scott, you know, imposed one of the worst injustices in the history of, of this Court and it led to the outbreak of the Civil War. It's very clear in this Court in

[General Sauer (Government's Attorney)]

all of its early cases in of

[Justice (Supreme Court Justice)]

terms interpreting the 14th amendment said, you know, the one pervading purpose, the main

[General Sauer (Government's Attorney)]

object of the citizenship clause is to

[Justice (Supreme Court Justice)]

overrule Dred Scott and establish the citizenship of the freed slaves.

[General Sauer (Government's Attorney)]

If you look at the debates in

[Justice (Supreme Court Justice)]

the Congressional Record and discussion surrounding the adoption of the citizenship clause, what you see is a very clear understanding that the newly freed slaves and their children

[General Sauer (Government's Attorney)]

have a relationship of domicile.

[Justice (Supreme Court Justice)]

They do not have a relationship any foreign power. For example, there's like a comment where

[General Sauer (Government's Attorney)]

he says, look, people have been here

[Justice (Supreme Court Justice)]

for five generations and know clearly have no relationships to any foreign African potentate, you know, are, have a relationship of allegiance to the United States. And that reinforces our point that allegiance is what the word jurisdiction means. It doesn't mean regulatory jurisdiction or, or you know, or sort of being subject, merely subject to the laws. They're talking and they're thinking about it in those debates about allegiance.

[General Sauer (Government's Attorney)]

Now as to your second question, if you look at the text of the clause, we believe there it says, you

[Justice (Supreme Court Justice)]

know, born in The United States, born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the states of which they reside.

[General Sauer (Government's Attorney)]

So there's a constitutional guarantee that applies to both federal or national and state citizenship. And the key point we make there is that that word reside, if you look at, for example, section 1473 of Justice Stories Commentaries, was understood to mean domicile. So when they say subject to the jurisdiction, and then they go on to

[Justice (Supreme Court Justice)]

say you're a citizen of the United

[General Sauer (Government's Attorney)]

States and the state in which they reside, the very text of the clause itself presupposes that the citizen is domiciled

[Justice (Supreme Court Justice)]

in the United States.

[General Sauer (Government's Attorney)]

If they're present in a state at all, they reside there.

[Justice (Supreme Court Justice)]

Reside means domicile in the Constitution. And we think that strongly supports our interpretation. It's textual evidence of our domicile based theory of jurisdiction.

[Justice Sotomayor]

Well, starting with that theory, you obviously put a lot of weight on subject to the jurisdiction thereof. But the examples you give to support that strike me as very quirky. You know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that point. Big group from such tiny and sort of idiosyncratic examples.

[General Sauer (Government's Attorney)]

There are those sort of narrow exceptions

[Justice (Supreme Court Justice)]

for ambassador, foreign public ships. Tribal Indians is an enormous one that they were very focused on in the debates as well.

[General Sauer (Government's Attorney)]

But what I do is I invite the court to look at the intervening step, which is the enactment of the Civil Rights act of 1866. And there they didn't say subject to the jurisdiction thereof. There it says not subject to any foreign power. Now if you go back to Blackstone in Calvin's case, they say it does not matter if you are subject to any foreign power. If you are born in the king's domains, you have this indefeasible duty of allegiance to the king at any time. So there's a clear repudiation in the Civil Rights Act. The Civil Rights act is this breakwater, which makes it very, very clear that they are not thinking about allegiance in

[Justice (Supreme Court Justice)]

the terms of, like the British common

[General Sauer (Government's Attorney)]

law, they've adopted the republican conception of allegiance. So it's from non subject to any foreign power. And then the debates just a couple months later, later make it very clear that they're reconifying the same conception. They were dissatisfied with the potential ambiguity

[Justice (Supreme Court Justice)]

in the phrase Indians not tax.

[General Sauer (Government's Attorney)]

And they adopted subject to the jurisdiction thereof. And one of the strongest Statements of

[Justice (Supreme Court Justice)]

this is Senator Trumbull's statements that I quoted at the beginning where he says he's asked what does that mean subject to the jurisdiction thereof?

[General Sauer (Government's Attorney)]

And he says it means not owing

[Justice (Supreme Court Justice)]

allegiance to anybody else. That is what it means.

[General Sauer (Government's Attorney)]

And this court picked up on that

[Justice (Supreme Court Justice)]

in Elk against Wilkins. When it says uses, you know, completely subject to the political jurisdiction, not mere regulatory jurisdiction,

[Justice Alito]

what do you do with Wong Kim Ark's quote of Daniel Webster who said, independently of a residence with intention to continue such residence independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing any former allegiance. It is well known that by the public law a non citizen while he is here in the United States owes obedience to this country's laws. Now, the examples that Wong AR Kim used as exceptions are situations in which there was not temporary allegiance to the United States. The children of foreign diplomats whose only allegiance was to their foreign, to their foreign country and or occupied territory residents, including those citizens in Maine who had been occupied by the British forces. The US had no control over them. And the whole theory of the Indian tribes was similar. The Indian tribes were analogized to foreign diplomats. So what do we do with that?

[General Sauer (Government's Attorney)]

I'd say two things. First, as the Indian tribes, we think

[Justice (Supreme Court Justice)]

that's a case that strongly supports us because of course, by 1866 and 1868 there was strong understanding that the Indian tribes were subject to the United States as regulatory jurisdiction, but not the same

[Justice Alito]

way that temporary foreigners were. Meaning there was a real debate going on whether the US Actually had jurisdiction over Indian tribes. That's why our cases for the longest time, until that was finally settled said absent some act of congress, there is our laws don't apply. U.S. laws don't apply to Indians on Indian lands. Correct.

[General Sauer (Government's Attorney)]

I believe you look at the Rogers decision, for example, that we cite in

[Justice (Supreme Court Justice)]

our brief where it's a. Where they say that they are subject

[General Sauer (Government's Attorney)]

to the act later.

[Justice Alito]

I'm talking at the time.

[General Sauer (Government's Attorney)]

Yes, at the time. So as to 1817.

[Justice Alito]

So what do you do during the debates of the 1866 Civil Rights act and of the 14th Amendment with the entire discussion of the people who opposed the amendment, who kept saying we can't pass it because we're making citizens of gypsies who have no allegiance to anybody and we're going to make citizens of Chinese people, people who can't be citizens because we're not going to permit them to be citizens. What do we do with those debates and the fact that the proponents of both acts said, Everyone who's born in the US with VRBoCare help is always

[Justice Jackson]

ready before, during and after your stay. We've planned for the plot twists, so

[Justice Kagan]

support is always available because a great

[Justice Jackson]

trip starts with peace of mind.

[General Sauer (Government's Attorney)]

We'll be citizens first as that particular exchange.

[Justice (Supreme Court Justice)]

Page 2890 of the Congressional Record from 1866. Senator Cowan gives this virulently racist statement where he says that.

[General Sauer (Government's Attorney)]

And what does he say right at

[Justice (Supreme Court Justice)]

the beginning of that, that sort of offensive speech? He says.

[General Sauer (Government's Attorney)]

He says, we can't have children of

[Justice (Supreme Court Justice)]

gypsies, children of Chinese immigrants. We can't have them become citizens.

[General Sauer (Government's Attorney)]

And he says, quote, have they any more rights than a sojourn in the United States? So he's trying to persuade the Republicans to his view by appealing to a common understanding that sojourners do not have children who become citizens. So there's powerful evidence there that everybody understood this to, you know, not sweep in the temporary sojourner. And that's why you see, for 40, 50 years, you see every commentator who addresses the specific question of temporary presence

[Justice (Supreme Court Justice)]

saying it's not covered by the clause, including for decades after.

[General Sauer (Government's Attorney)]

Wong Kim Mark General, can I take

[Justice Cavanaugh]

you back to the Chief Justice's question about the specific exceptions to birthright citizenship that everybody seems to agree were recognized under the common law? And it brings up an important principle about how we interpret the law. When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up. Justice Scalia had an example that dealt with this situation. He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven. And then afterwards, someone is charged with the crime of stealing a microwave oven. And this fellow says, well, I can't be convicted under this because the microwave oven didn't exist at that time. And he dismissed that. There's a general rule there, and you apply it to future applications. And what we're dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration. So how do we deal with that situation when we have a general rule?

[General Sauer (Government's Attorney)]

Yeah, I strongly agree with the way that you framed it, that there is a general principle that's a broad principle

[Justice (Supreme Court Justice)]

that's adopted in the phrase subject to the jurisdiction thereof. And we submit that our theory of allegiance and domicile based allegiance would explain, explains those specific exceptions that everybody was aware of. But it is broad enough to sweep in future situations. And as you pointed out, illegal immigration did not exist then.

[General Sauer (Government's Attorney)]

Now the problem of temporary visitors did exist. And it's very interesting that as you

[Justice (Supreme Court Justice)]

look at pages 26 and 28 of

[General Sauer (Government's Attorney)]

our brief, commentators going from, you know, 1881 until 1922 are uniformly saying the children of temporary visitors are not included.

[Justice (Supreme Court Justice)]

Now that logic, we say it's naturally extreme sense. It's really an afore case.

[General Sauer (Government's Attorney)]

If you, as someone who enters illegally

[Justice (Supreme Court Justice)]

by the 1880s, there are restrictions on immigration.

[General Sauer (Government's Attorney)]

If you've entered illegally.

[Justice (Supreme Court Justice)]

It's kind of, you know, a well established principle of law going back to the Code of Justinian that says you're not allowed to be there.

[General Sauer (Government's Attorney)]

You cannot, you don't have the legal

[Justice (Supreme Court Justice)]

capacity to create domicile there.

[Justice Kagan]

But I think, General Sour, that what you just said suggests that you can't be arguing in the way Justice Alito suggests. Because most of your brief is not about illegal aliens. Most of your brief is about people who are just temporarily in the country where there was quite clearly an experience of an understanding of that there were going to be temporary inhabitants. And your whole theory of the case is built on that group. You don't get to talking about undocumented persons until quite later. And at much lesser, you know, I think it's like 10 pages to three pages or something like that. So you can't really be going with Justice Alito's theory. You must be saying that there is a principle that developed that was there in at the time of the 14th amendment. Isn't that right?

[General Sauer (Government's Attorney)]

We agree there's a principle there at the 14th amendment. It is the jurisdiction means allegiance, the allegiance of a. And this very strongly reflected in 19th century sources. The allegiance of an alien president in another country is determined by domicile. And that goes back to the Venus and the Pizarro. It goes through the katsa affair in 1853. It comes right up to Fong Yui Ting and Lao Bu that are decided shortly before Wong Kim Ark. So that's the principle. That principle clearly applies here.

[Justice (Supreme Court Justice)]

I also respectfully disagree.

[Justice Kagan]

Yeah, And I guess, Mr. General Sauerkraut, you know, where does this principle come from? Allegiance, domicile allegiance. I think you point to a Lincoln funeral speech as your primary example of where this principle comes from. It's certainly not what we think of when we think of the word jurisdiction. And I appreciate that jurisdiction has many meanings. But you know, the first Meaning is like if you're subject to jurisdiction, you're subject to the authority of. One doesn't say, oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does. So the text of the clause, I think, does not support you. I think you're sort of looking for some more technical, esoteric meaning. And then the question comes, okay, if the text doesn't support you, if there's a real history of people using it that way. But as far as I can tell, you know, at the time of the 14th, you're, you're, you're using some pretty obscure sources to get to this concept.

[General Sauer (Government's Attorney)]

Well, take it straight from the framers mouths.

[Justice (Supreme Court Justice)]

So, for example, Senator Trumbull said, was

[General Sauer (Government's Attorney)]

asked, what does jurisdiction mean? He means subject to the jurisdiction.

[Justice (Supreme Court Justice)]

He said, what does that mean?

[General Sauer (Government's Attorney)]

He says it means not owing allegiance to anybody else. He is the principal framer of the Civil Rights act of 1866. Representative Bigham, who's the framer of the 14th Amendment, is asked, what, what does

[Justice (Supreme Court Justice)]

it mean in the Congressional record of page 1291?

[General Sauer (Government's Attorney)]

He says, within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty. And we've cited many, many examples where

[Justice (Supreme Court Justice)]

the congressional debates reflect that.

[General Sauer (Government's Attorney)]

Then you refer to the oration of George Bancroft. That's one of probably 16 sources where

[Justice (Supreme Court Justice)]

there's at least 13, counting that one in the 12 treaties as well. We cite it, pages 26 to 28 of our brief.

[General Sauer (Government's Attorney)]

There is over a dozen sources that specifically address temporary sojourners in the five decades after the enactment of the amendment. Every single one of them says, well,

[Justice (Supreme Court Justice)]

temporary sojourners, their children are not included,

[General Sauer (Government's Attorney)]

including for two decades after, Wong Kim Ark.

[Legal Analyst/Commentator]

So if, if domicile is the key linchpin to your argument, and I take it that it is, do we look at how domicile is understood in 1868? Do we look at it how it's understood today in context of the INA, the 1868 understanding?

[Justice (Supreme Court Justice)]

I'm not aware of a strong difference between those.

[Legal Analyst/Commentator]

Well, here's where I'm going with it. I'm just working within your argument for a moment. Today you can point to laws against immigration that are much more restrictive than they were in 18. We really didn't have laws like that we do today until maybe 1880. So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to any immigration laws. There they were. And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial.

[General Sauer (Government's Attorney)]

I would first cite Wong Kim Ark

[Justice (Supreme Court Justice)]

on that point because Wong Kamark says you're.

[Legal Analyst/Commentator]

Well, I'm not sure how much you want to rely on Wong Kimar.

[General Sauer (Government's Attorney)]

But that state. There is a statement in there that says so long as they are permitted to be here. So Wong Kumar, keep in mind that by the time they decide. Wong Kim ark.

[Legal Analyst/Commentator]

But that's 1898. Now I'm looking at 1868, you're telling me, is when I should look. And the test for domicile and the stuff you have about unlawfully present. It's like Roman law sources.

[General Sauer (Government's Attorney)]

You're going to first and second restatements as well.

[Justice (Supreme Court Justice)]

And, and.

[General Sauer (Government's Attorney)]

But decisions of discord.

[Legal Analyst/Commentator]

So it wouldn't be the INA that would control whether you're capable of having domicile. It would be whatever the law was in 1868.

[General Sauer (Government's Attorney)]

Well, I think that this is addressed by my exchange with Justice Alito from earlier, which is that this concept, jurisdiction

[Legal Analyst/Commentator]

baking in allegiance and continually restrained, restrict who may lawfully be present more and more. And you would say that would be incorporated into it, even though you're telling us to apply the original meaning of

[General Sauer (Government's Attorney)]

1868, the original meaning of domicile. And so the question is, is there any argument that the Framers intended to preclude Congress from dictating who can and who cannot establish a lawful domicile here? I don't see any evidence of that

[Justice (Supreme Court Justice)]

in the Congressional Record. So it's a natural extension whose domicile matters?

[Legal Analyst/Commentator]

I mean, it's not the child, obviously. It's your. It's the parents you'd have us focus on. And, you know, what if. Is it the husband? Is it the wife? What if they're unmarried? Who's domicile?

[General Sauer (Government's Attorney)]

Well, in the Executive Order, it draws

[Justice (Supreme Court Justice)]

a distinction between the mother and the father, and it's really the mother's domicile. I think that would matter.

[Legal Analyst/Commentator]

Well, but 1868 matters, you're telling us. So what's the answer?

[General Sauer (Government's Attorney)]

The 1868 sources talk about parental.

[Justice (Supreme Court Justice)]

I'm not aware of them drugging a citizen distinction between mother or father. But they say the domicile of the child follows the domicile of the parents.

[Legal Analyst/Commentator]

And how are we going to determine domicile? I mean, would we use contemporary sources on what qualifies as domicile in a state? Or do we look in 1868 and do we have to do this for every single person.

[General Sauer (Government's Attorney)]

And again, I don't see a strong distinction between those because of course, domicile is a, a high level concept, has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently that domicile. When you come to a new nation, you say I'm here to stay, you

[Justice (Supreme Court Justice)]

become part of their political community and

[General Sauer (Government's Attorney)]

you become akin to a citizen.

[Justice (Supreme Court Justice)]

And that's reflected very strongly in the case I cited before.

[Legal Analyst/Commentator]

And just to circle back to Justice Kagan's point, it's striking that in none of the debates do we have parents discussed. We have the child's citizenship and the focus of clause is on the child, not on the parents. And you don't see domicile mentioned in the debates. That's the absence is striking.

[General Sauer (Government's Attorney)]

I think the 19th century sources would

[Justice (Supreme Court Justice)]

say a child, a newborn child, lacks the capacity to form a domicile. So they're imputed the domicile of their parents.

[General Sauer (Government's Attorney)]

So I don't think they would have seen a distinction between children and parents. And I point out that their position

[Justice (Supreme Court Justice)]

like ours is forced to look at

[General Sauer (Government's Attorney)]

the domicile of the parents because if you look at the exceptions that they accept, like I'm talking about tribal Indians

[Legal Analyst/Commentator]

and so forth, I'm talking about in the debates over the 14th Amendment and the Civil Rights act, it's, it's striking that these concepts aren't discussed in them.

[General Sauer (Government's Attorney)]

I think domicile is discussed.

[Justice (Supreme Court Justice)]

I mean it's, it's brought up in many.

[Legal Analyst/Commentator]

Allegiance, jurisdiction, complete jurisdiction.

[General Sauer (Government's Attorney)]

Well, I mean here, here's just a few examples.

[Justice (Supreme Court Justice)]

Page 1679 in the Congressional Record.

[General Sauer (Government's Attorney)]

President Johnson vetoes the first version of the Civil Rights act.

[Justice (Supreme Court Justice)]

And he says, I'm, I can't sign

[General Sauer (Government's Attorney)]

this because it would extend alien, sensitize

[Justice (Supreme Court Justice)]

the children of, quote, all domiciled aliens

[General Sauer (Government's Attorney)]

and for even if not naturalized.

[Justice (Supreme Court Justice)]

And you have all the other sources we cited that say when again this goes.

[General Sauer (Government's Attorney)]

This is a deeply rooted 19th century understanding. It's reflected in the Venus, it's reflected

[Justice (Supreme Court Justice)]

in the bizarro in 1814 and 1817.

[General Sauer (Government's Attorney)]

It carries through the 19th century. And this court is talking about it in 1892 and 1893 when it's discussing the Chinese Exclusion Acts. Domicile is the key concept that creates allegiance.

[Justice Jackson]

That's general.

[Host/Moderator]

General said in your reply brief that the children of slaves who were brought here unlawfully, you know, in defiance of laws forbidding the slave trade would in fact be citizens. And we can imagine that their parents were not only brought here in violation of United States law, but were here against their will and so maybe felt allegiance to the countries where they were from. And you say that the purpose of the 14th Amendment was to put all slaves on equal footing, newly freed slaves on equal footing, and so they would be citizens. But that's not textual. So how do you get there? You say it in just a few sentences. So can you elaborate?

[Justice (Supreme Court Justice)]

Sure. If you look at the, I think

[General Sauer (Government's Attorney)]

if you look at the 19th century sources, what you see is that even though their entry may have been unlawful, 19th century Antebellum law never treated their presence as unlawful.

[Justice (Supreme Court Justice)]

In fact, quite the opposite. One of the amici, in fact points like a Mississippi statute, which probably is

[General Sauer (Government's Attorney)]

replicated through throughout the south before the Civil War, that says slaves in Mississippi have an indefeasible domicile in Mississippi. In other words, even if they run away, if they get away, Mississippi says, nope, you still live here. Right. And so it'd be astonishing, in other

[Justice (Supreme Court Justice)]

words, for the opponents of the 14th Amendment to say, oh, you know, these people were not domiciled and therefore it goes the other way.

[General Sauer (Government's Attorney)]

Because actually US Law, even if they

[Justice (Supreme Court Justice)]

were brought in illegally through an illegal slave trade, once they were there by,

[Host/Moderator]

well, their intent is to return as soon as they can, let's say, so they're here, they're resident. And maybe under your theory, I mean, which says, well, lawfulness for a different purpose, but they're here, they're resident. Let's take your assumption that they're not here unlawfully, but let's say they don't have an intent to stay, they want to escape and go back the second they can.

[General Sauer (Government's Attorney)]

Are they domiciled under the 19th century law? I mean, I think this is the

[Justice (Supreme Court Justice)]

flip side of the hypothetical that we talked about earlier. Under 19th century century law, they are

[General Sauer (Government's Attorney)]

treated as domiciled in the United States.

[Justice (Supreme Court Justice)]

So it'd be astonishing.

[General Sauer (Government's Attorney)]

And in the debates in the congressional four talk about not this specific case, but they say, look, slaves who have been forced to come here and have been here are lawfully domiciled here. I mean, they don't use the ways

[Justice (Supreme Court Justice)]

domiciled like they have.

[General Sauer (Government's Attorney)]

They use allegiance. They say they don't have allegiance, that once they've been forced to come here,

[Justice (Supreme Court Justice)]

they don't have allegiance to any foreign or African potentate and therefore they're general.

[Host/Moderator]

How would that apply to human, the children, children of illegally trafficked people today, would the same reasoning apply?

[General Sauer (Government's Attorney)]

It would turn on whether the parents

[Justice (Supreme Court Justice)]

are lawfully domiciled in the United States.

[Host/Moderator]

So if they're brought in illegally but then they choose to remain and they want to remain and they're domiciled. You would say that their lawful presence is not dictated by whether they were brought here lawfully or not. And that's different from someone who, say, crosses the border unlawfully.

[General Sauer (Government's Attorney)]

Yeah, I think it would turn on

[Justice (Supreme Court Justice)]

whether their presence is lawful.

[Justice Jackson]

General.

[General Sauer (Government's Attorney)]

In other words, obviously, there may be many other important things that could be done to assist people like that.

[Justice (Supreme Court Justice)]

The question is, if they give birth to someone in the United States, that person, naturally a citizen, that would turn, based on the original public meaning of the clause, on the lawfulness of their presence, are they domicile?

[Justice Jackson]

General, can I ask you a question to follow up on what Justice Gorsuch was exploring with you with respect to domicile? Did I understand you to say that domicile is going to be eventually or is controlled by Congress, who is domiciled? I'm struggling to figure out who is domiciled in your argument.

[General Sauer (Government's Attorney)]

The domiciliaries are people who are lawfully

[Justice (Supreme Court Justice)]

present and have an intent to remain permanently. So that's a kind of black letter, you know, understanding of domicile.

[General Sauer (Government's Attorney)]

Now, Congress can dictate that certain classes

[Justice (Supreme Court Justice)]

of people, legal entrants and so forth,

[General Sauer (Government's Attorney)]

cannot lawfully lack the legal capacity to

[Justice (Supreme Court Justice)]

form a legally binding.

[Justice Jackson]

But if that's so, then doesn't it make the domicile for the purpose of the 14th amendment turn then ultimately on Congress's will in a way that the framers did not intend? I mean, my understanding was the framers put this citizenship clause into the Constitution to prevent future Congresses from being able to affect citizenship in this way.

[General Sauer (Government's Attorney)]

Very briefly, no, I don't think so, because it is up to the alien

[Justice (Supreme Court Justice)]

whether or not they want to be domiciled here. Now, there may be.

[Justice Jackson]

But I thought you said Congress can, can, can make determinations as to who counts as being domiciled here. So if that's true, then it ultimately would impact, in your theory, whether or not this person can claim that they have citizenship for 14th amendment purposes based on Congress's determination. And I just thought that's what the 14th amendment was trying to get away from.

[Justice Sotomayor]

Yes, please.

[General Sauer (Government's Attorney)]

Very briefly, I just point you to

[Justice (Supreme Court Justice)]

the discussion in Professor Wurman's amicus brief

[General Sauer (Government's Attorney)]

where he talks about this is not a new problem. Going back even to the British common law, there's a situation of people who lack a safe conduct and are passing through the king's domains without permission. And he, he says the best reading

[Justice (Supreme Court Justice)]

of the common laws, they are not

[General Sauer (Government's Attorney)]

under protection of the king.

[Justice (Supreme Court Justice)]

And they're not covered by the rule of birthright citizenship.

[Justice Sotomayor]

Thank you. Counsel. You mentioned in your briefing and also this morning the problem of birth tourism. Do you have any information about how common that is or how significant a problem it is?

[General Sauer (Government's Attorney)]

It's a great question. No one knows for sure.

[Justice (Supreme Court Justice)]

There's a March 9 letter from a number of members of Congress to DHS saying, do we have any information about this?

[General Sauer (Government's Attorney)]

The media reports indicate estimates could be

[Justice (Supreme Court Justice)]

over 1 million or 1.5 million from

[General Sauer (Government's Attorney)]

the People's Republic of China alone. The, the congressional report that we cite in our brief talks about certain hotspots

[Justice (Supreme Court Justice)]

like Russian elites coming to Miami through these tourism companies.

[General Sauer (Government's Attorney)]

And I mean, here's, here's, here's a

[Justice (Supreme Court Justice)]

fact about it that I think is striking.

[General Sauer (Government's Attorney)]

Media reported as early as 2015 that based on, on Chinese media reports, there are 500, 500 birth tourism companies in the People's Republic of China whose business is to bring people here to give

[Justice (Supreme Court Justice)]

birth and return to that nation.

[Justice Sotomayor]

Analysis before us.

[General Sauer (Government's Attorney)]

I think it's, I quote what Justice

[Justice (Supreme Court Justice)]

Scalia said in his Hamdan dissent where

[General Sauer (Government's Attorney)]

they had, where like their interpretation has these implications that could not possibly have

[Justice (Supreme Court Justice)]

been approved by the 19th century framers of this amendment. I think that shows that they've made a mess. Their interpretation has made a mess of the provision.

[Justice Sotomayor]

Well, it certainly wasn't a problem in the 19th century.

[Justice (Supreme Court Justice)]

No, but of course, we're in a new world now, as Justice Alito pointed

[General Sauer (Government's Attorney)]

out, to where 8 billion people are

[Justice (Supreme Court Justice)]

one plane ride away from having a,

[General Sauer (Government's Attorney)]

a child who's a U.S. citizen.

[Justice Sotomayor]

Well, it's a new world. It's the same constitution.

[General Sauer (Government's Attorney)]

It is. And as Justice Scalia said, I think

[Justice (Supreme Court Justice)]

in the case that Justice Alito was

[General Sauer (Government's Attorney)]

referring to, you've got a constitutional provision

[Justice (Supreme Court Justice)]

that addresses certain evils and it should be extended to reasonably comparable evils. He said that about statutory interpretation. I think the same principle applies here and I think we quote that in our brief.

[Justice Sotomayor]

Thank you, Justice Thomas.

[Justice Thomas]

Anything further, General? You're getting a lot of questions about immigration. And they harken back, of course, to the citizenship which is defined in or set out in the 14th amendment. How much of the debates around the 14th amendment had anything to do with immigration?

[General Sauer (Government's Attorney)]

I think that the principal focus of

[Justice (Supreme Court Justice)]

those debates has to do really not with immigrants, but with the Indian tribes. I mean, obviously the main goal, the one pervading purpose, as this Court said in the slaughterhouse cases, was to establish the citizenship of the freed slaves and their children.

[General Sauer (Government's Attorney)]

But they were very concerned about the, the problem of something that they all

[Justice (Supreme Court Justice)]

accepted as a given, which is that the children of tribal Indians are not within the rule of birthright citizenship.

[General Sauer (Government's Attorney)]

So I think that's what. They focus.

[Justice (Supreme Court Justice)]

And we draw an analogy to that, to the issue of temporary sojourners.

[General Sauer (Government's Attorney)]

And then.

[Justice (Supreme Court Justice)]

But there are mentions of temporary sojourning multiple places in

[General Sauer (Government's Attorney)]

action.

[Justice Thomas]

And there was Justice Sotomayor brought up Long King Arc. There was no question in that case that about domicile, was there?

[General Sauer (Government's Attorney)]

I disagree.

[Justice (Supreme Court Justice)]

The court says at the very beginning of its opinion, here are the accepted facts. These are lawfully domiciled here.

[General Sauer (Government's Attorney)]

When it states the question presented, it talks about domicile. When it recites the legal principle, at page 693, it says domicile three times. And at page 705 at the end

[Justice (Supreme Court Justice)]

of the opinion says, here's the single question we've decided.

[General Sauer (Government's Attorney)]

We've decided that Chinese immigrants with a

[Justice (Supreme Court Justice)]

permanent domicile in residence here are. Fall within the rule of birthright citizenship.

[Justice Cavanaugh]

Justice Alito, under the minimum definition of domicile, which I think existed in 1868 and continues to exist today, a person's domicile is the place where he or she intends to make a permanent home. Now, normally you would think that a person who is subject to arrest at any time and removal could not establish a domicile. But we have an unusual situation here because our immigration laws have been ineffectively and in some instances unenthusiastically enforced by federal officials. So there are people who are subject to removal at any time if they are apprehended and they go through the proper procedures, but they have, in their minds, made a permanent home here and have established roots. And that raises a humanitarian problem. And I wonder if you could, you

[Justice (Supreme Court Justice)]

could address that if I made one legal and one humanitarian.

[General Sauer (Government's Attorney)]

The legal point is, if you look

[Justice (Supreme Court Justice)]

at those cases, for example, Carson against Reed park against Barr, this court's decisions in Elkins and Toll against Marino, they talk about the legal capacity to, you know, to, to create a domicile excluding

[General Sauer (Government's Attorney)]

someone who may have the subjective intent,

[Justice (Supreme Court Justice)]

which otherwise would be determinative as being excluded.

[General Sauer (Government's Attorney)]

On the humanitarian point, I would point

[Justice (Supreme Court Justice)]

out, as I said at the beginning,

[General Sauer (Government's Attorney)]

Justice Alito, that the United States rule

[Justice (Supreme Court Justice)]

of nearly unrestricted birthright citizenship is an outlier among modern nations. It's a very small minority of nations that have that rule. For example, every, every nation in Europe has a different rule. And the notion that they have a huge humanitarian crisis as a result of not having unrestricted birthright citizenship. I don't think is a strong argument. And I point out obviously for, you know, for, for, for reliance related reasons, this executive order applies only prospectively and we ask the court to rule only prospectively.

[General Sauer (Government's Attorney)]

Justice Sotomayor, I agree with you what

[Justice Alito]

the European nation rule is, but England was always different, wasn't it?

[General Sauer (Government's Attorney)]

Not until nineteen nineteen eighty three.

[Justice (Supreme Court Justice)]

It changed the.

[Justice Alito]

That's not quite true. The Wong Kim Ark does a wonderful job of laying out the English rule and you claim it was different, but there isn't any treatises or scholars who say it's different. English rule was always by birth. Other people were not by other countries were not by birth. Let me just go to the implications of what you're asking us to do. You are asking us to overrule Wong Kim, Arkansas. Well, there Wong Kiemok's parents were domiciled in the US but they owed loyalty to China. They eventually returned to China. So they didn't have a primary allegiance to the United States. So you're not asking that. Are you asking us to overrule then our cases, one of which said that a child of illegal aliens could be was a citizen. You're asking us to overrule that?

[General Sauer (Government's Attorney)]

No, first of all, we're not asking you over to a long Kim Ark. We agree with holding of Long Kim arc and much of the reasoning. And, and then as to those later cases starting in 1966 where the court

[Justice (Supreme Court Justice)]

makes sort of, you know, unreasoned references to the.

[Justice Alito]

Wait a minute. Top you loose the reference. The respondent unlawfully overstayed her visa and gave birth to a child. Here the court Harlan II wrote the child is of course an American citizen. That person wasn't domiciled to your lawfully. So you're asking us to overrule that case.

[Justice (Supreme Court Justice)]

I wouldn't call, I wouldn't say we're asking to overrule.

[General Sauer (Government's Attorney)]

We think that's similar to a drive

[Justice (Supreme Court Justice)]

by jurisdictional ruling where there's a simple statement that's not debated, there's no further analysis of it. There's really an assumption there and we think that's similar to cases where the court just assumes jurisdiction without disclosure.

[Justice Alito]

When we ruled in Trinh that Indians could not become citizens, the government then after began to unnaturalize many Indians who had been sworn in as citizens. You asked us to concentrate only on the prospective nature of the citizens order. But the logic of your position, if accepted, is that the next president, this president or the next president or a Congress or someone else could decide that it shouldn't be Prospective. There would be nothing limiting that, according

[General Sauer (Government's Attorney)]

to your theory, if, as we ask,

[Justice (Supreme Court Justice)]

the court confines its ruling to prospective relief only, which it didn't.

[Justice Alito]

I'm saying to you don't. Yeah, that's what you're asking us for relief right now. I'm asking whether the logic of your theory would permit what happened after the court's decision in Trin that the government could move to unnaturalize people who were born here of illegal residence.

[General Sauer (Government's Attorney)]

No, we believe the court should do

[Justice (Supreme Court Justice)]

what it did in Sessions against Morales Santana, where there was a such a ruling that would of deprive people who

[General Sauer (Government's Attorney)]

are already citizens of citizenship.

[Justice (Supreme Court Justice)]

And the court said this applies prospectively only. And we think that's the appropriate course here.

[Justice Alito]

But that's not what we did in Trin.

[General Sauer (Government's Attorney)]

We think Sessions provides the proper course

[Justice (Supreme Court Justice)]

here, and that's what we're asking. We are not asking for any retroactive relief.

[General Sauer (Government's Attorney)]

Justice Kagan.

[Justice Kagan]

General, I think even your brief concedes that the position you're taking now is a revisionist one with respect to a substantial part of our history. And I think that that's in large part because of Won Kim Ark and the way people have read that case, which of course was in the late 19th century and have read it ever since then. And what that case suggests is, I mean, there's a very clear rationale. You say, oh, it says the word domicile a bunch of times, which it does. It's a long opinion, says a lot of things. But the rationale of the case is really quite clear. It says there was this common law tradition. It came from England. We know what it was. Everybody got citizenship by birth, except for a few discrete categories, which were the ones that the Chief justice mentioned at the beginning and that tradition carried over to the United States. And then what the 14th amendment did was accept that tradition and not attempt to place any limitations on it. And so that was the clear rationale, a clear rationale that is diametrically different from your rationale. And everybody took woncom arc to say that and to say that as a result of that, of course, birthright citizenship was the rule. And I think everybody has believed that for a long, long time. And I guess my question is this. You have a story about what, about the reasons why we should go back to what you view as the original meaning. And given the long history of this country's understanding about birthright citizenship, what would it take? What do you think it should take to accept that story in terms of the. The magnitude of the evidence that we would need to see in order to accept this revisionist theory and in order to change what I think people have thought the rule was for more than a century.

[General Sauer (Government's Attorney)]

Let me make two points in response to that, One historical and one legal historical point. I disagree with the way you've characterized

[Justice (Supreme Court Justice)]

the understanding of Wong Kim Ark.

[General Sauer (Government's Attorney)]

And I point to something that's emphasized in their amicia, these briefs, which is in 1921. Richard Flournoy, who becomes a senior State

[Justice (Supreme Court Justice)]

Department official in the Roosevelt administration and pushes their theory as the temporary sojourners,

[General Sauer (Government's Attorney)]

writes a law review article in 1921 where he says, I think the children of temporary visitors should be citizens. But he admits that is not the understanding of Won. He admits Won Ark did not hold that. And he admits that there's an array of authorities that go against him. He talks about careful and reliable high authorities. And that's referring to the consensus that

[Justice (Supreme Court Justice)]

we point out in pages 26, 28 of a brief. We've got 12 treatises from 1881 to

[General Sauer (Government's Attorney)]

1922 that all say, including for decades after Wong Kamark, that say children of temporary sojourners are not included. What happens between 1921 and the 1930s? Well, Mr. Flournoy became a senior State Department official, and he adopted that as the policy of the Roosevelt administration. So their argument is basically saying there wasn't this case consensus going back to 1898. The consensus, as their own author admits, goes entirely in the opposite direction. For 50 years. Right, for 50 years. From the framing of the clause through the 1920s, maybe 60 years. The general understanding when it comes to the. What's an issue here and was not an issue in Wong Kim Ark is the children of temporary visitors do not become citizens under the clause. And then the legal point you. You referred to this sort of concept of temporary local allegiance. And they rely on the schooner exchange, this theory that you've got temporary local allegiance. But if you actually look. Look at page 572 of the Congressional Record, right at the beginning, introducing the Civil Rights Act. Senator Trumbull says, I said, not subject

[Justice (Supreme Court Justice)]

to any foreign power.

[General Sauer (Government's Attorney)]

I wanted to say born in the United States and, you know, owing allegiance to the United States. But I was aware that there's a, quote, a sort of allegiance from persons temporary resident in the United States, States, whom we have no right to make citizens. So Senator Trumbull says, the reason I haven't adopted the language and meaning that they say should be packed into these provisions is that everybody knows that the children of temporary visitors should not be citizens. Thank you, General Justice Gorsuch, Just to

[Legal Analyst/Commentator]

follow up on, on that point, General, one interesting counterpoint about the understanding of Won Kim Arc that followed with respect to temporary sojourn, and I take you're well taken points. But there was of course, John Marshall Harlan, the great dissenter who descended in Wong Kim Larg and later gave a bunch of lectures, and he posed the question about the sojourners. But suppose an English father and mother went down to the hot springs to get rid of the gout, and while there, they have a child now back in England. Is that child a citizen of the United States born of the jurisdiction thereof by mere accident of birth? And he says under Wong Kim Arc, he is. And he continues, I was one of the minority and of course I was wrong. Now, I'm sure that was tongue in cheek, but what do you do with that?

[General Sauer (Government's Attorney)]

I draw the. I mean, I say two things in response to that. First of all, he gave a speech. But we have 12 uncontradicted treatises that

[Justice (Supreme Court Justice)]

say the opposite, that that is not what Wong Kamar means and that's not the meaning of the clause.

[General Sauer (Government's Attorney)]

But also I make a more fundamental point. When you're looking at Wong Kim Ark, one of the. The dissent has this dominant theme that really like you can't be doing this because you can't make the, the we all agree or it's obvious that the

[Justice (Supreme Court Justice)]

children of temporary res.

[General Sauer (Government's Attorney)]

Temporary visitors do not become citizens. And how does the majority opinion address that? It says domicile. So three times when it recites the legal rule, it says permanent residence and domicile when it decides the holding. So the court should be bound by what it says. This is what we're deciding. Again, on page 75, it says this is the single question. Now, there's been a lot of discussion up to that point, but at the very end they said the single question we've decided is the citizenship says the

[Justice (Supreme Court Justice)]

children of Chinese immigrants with a, a permanent residence and domicile in the United States.

[Legal Analyst/Commentator]

Do you think Native Americans today are birthright citizens under your test and under your friend's test?

[General Sauer (Government's Attorney)]

I think so. I mean, obviously they've been granted citizenship by statute.

[Legal Analyst/Commentator]

Put aside the statute. You think they're birthright citizens?

[General Sauer (Government's Attorney)]

No, I think the, the clear understanding

[Justice (Supreme Court Justice)]

that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright.

[Legal Analyst/Commentator]

I understand that's what they said. But your test is the domicile of the parents, and that would be the test you'd have us apply today, right?

[General Sauer (Government's Attorney)]

Yes. Yes. So a tribal Indian, for example, gives

[Legal Analyst/Commentator]

up allegiance to born today birthright citizens.

[General Sauer (Government's Attorney)]

I think so on our test.

[Justice (Supreme Court Justice)]

Yeah, they're lawfully domiciled here.

[General Sauer (Government's Attorney)]

And then I have to think that through.

[Justice (Supreme Court Justice)]

But I'll take. That's my reaction.

[Legal Analyst/Commentator]

I'll take the yes, that's all right. And then I just want to ask you quickly about the INA adopted in 1940 and 1952. It uses the same term as the citizenship clause. And one might have a pretty good argument. I'm sure you got some some arguments along just these lines that it should be understood to mean whatever it meant in 1868. But there was a lot of water over the dam between those two things. And as your brief points out by the Roosevelt administration, there's a pretty strong juice solely move. That is to say that the thin concept of jurisdiction power over is enough a broader understanding of birthright. Would there be an argument for reading that statute under its original plain meaning at the time 1940, 1952 to perhaps have a different meaning than the Constitution?

[General Sauer (Government's Attorney)]

We don't think that's the best interpretation.

[Justice (Supreme Court Justice)]

Give two reasons.

[General Sauer (Government's Attorney)]

One is it would be very surprising

[Justice (Supreme Court Justice)]

if a statute that says exactly the constitutional phrase subject the jurisdiction thereof were interpreted means something totally different or to us of course, a then current misunderstanding of the clause.

[General Sauer (Government's Attorney)]

We think that the best analogy here is probably state long arm statutes.

[Justice (Supreme Court Justice)]

Take a sort of non controversial example. State long harm statutes routinely say we're going to exercise personal jurisdiction to the

[General Sauer (Government's Attorney)]

extent of due process.

[Justice (Supreme Court Justice)]

It takes the constitutional standard and it puts it in the statute.

[General Sauer (Government's Attorney)]

And nobody thinks that those ossify, you

[Justice (Supreme Court Justice)]

know, are limited to the precedent this court's precedence at the time they're enacted. Everyone thinks that that phrase to due process incorporates, you know, the developing law of due process and minimum context and so forth, including from this court. So we think that's the best analogy when it's when you're looking at the

[General Sauer (Government's Attorney)]

constitutional phrase itself and you take it

[Justice (Supreme Court Justice)]

out of a freighted context, the natural interpretation is say this means what this reflects the objective meaning of the Constitution. And the objective meaning of the Constitution is its original public meeting in 1866.

[Legal Analyst/Commentator]

Do you see any notable counterpoints to to that argument?

[Justice (Supreme Court Justice)]

I'm sure there are arguments on the other side. We address them in their brief.

[Legal Analyst/Commentator]

So you really at the end of the day then this is a straight up constitutional ruling you want from this court winner, win, lose or draw.

[General Sauer (Government's Attorney)]

Yeah, we think that the statute of the Constitution means the same thing.

[Justice (Supreme Court Justice)]

If the court disagrees, obviously we prefer an adverse ruling if the Court's going to do that on a statutory basis and a constitutional basis.

[Legal Analyst/Commentator]

But you just disavowed that in your responses to me by saying that that's not an available option is the way I understood it.

[General Sauer (Government's Attorney)]

Yes, the Court would have to disagree

[Justice (Supreme Court Justice)]

with our statutory position, which is that it means the same thing as the Constitution. But if the Court were to do that, then the natural course would probably be to rule on statuary grounds alone. Now we think they mean the same thing, and we've got arguments for that, including, I think, the analogy I just referenced.

[General Sauer (Government's Attorney)]

Thank you, Justice Cavanaugh.

[Justice Kavanaugh]

General, how should we think about the text of the 14th Amendment subject to the jurisdiction thereof, as distinct from from the different language of the Civil Rights act of 1866, which refers as, you know, to persons not subject to any foreign power? Those texts are, on their face, different. And the history that Justice Kagan referred to might have developed quite a bit differently if the 14th Amendment's text had used the phrase that was in the Civil Rights Act.

[Justice (Supreme Court Justice)]

That's an excellent point. And this Court has held in multiple cases heard against Hodge and General Building Contractors, has recognized that they're intended and they did mean the same thing. And that's powerfully reinforced by the congressional

[General Sauer (Government's Attorney)]

debates where you really what they're discussing is they said they were dissatisfied with the language in the Civil Rights act

[Justice (Supreme Court Justice)]

because the phrase Indians not text they thought was ambiguous.

[General Sauer (Government's Attorney)]

And so they switched to the affirmative

[Justice (Supreme Court Justice)]

statement as opposed to the negative statement. The affirmative stage is subject to the jurisdiction, jurisdiction thereof. But there's express statements in the Congressional Record essentially that we're doing the same thing. And that is what this Court's case law has reflected.

[Justice Kavanaugh]

Why didn't they say the same thing?

[Justice (Supreme Court Justice)]

Again, it appears they prefer the sort of positive formulation subject the jurisdiction thereof as opposed to not subject to any foreign power. And again, there's a deep concern and

[General Sauer (Government's Attorney)]

lengthy discussion of the potential ambiguity in

[Justice (Supreme Court Justice)]

the Civil Rights act thing.

[General Sauer (Government's Attorney)]

They want to eliminate an ambiguity but

[Justice (Supreme Court Justice)]

do the same thing. And I think that that's, that's very strong, strongly reflected in those debates by

[Justice Kavanaugh]

the time of the 1940 and 1952 congressional actions where Congress repeats subject to the jurisdiction thereof. Given Juan Kim Arc, one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be. And yet Congress repeats that same language, knowing what the interpretation had been. So how are we to think about that?

[General Sauer (Government's Attorney)]

I think baked into that question is

[Justice (Supreme Court Justice)]

an understanding, I think that was reflected in Justice Kagan's earlier question that everybody understood that Wong Kim Ark meant that.

[General Sauer (Government's Attorney)]

And the history I talked about, I think refutes that. Really there's a consensus that goes our way for decades and decades after the

[Justice (Supreme Court Justice)]

adoption of the amendment, after Wong Kim

[General Sauer (Government's Attorney)]

Ark on the specific question of the children of temporary visitors.

[Justice (Supreme Court Justice)]

And it's really not until.

[General Sauer (Government's Attorney)]

And again, their author in 1921 is saying, hey, the other side is consensus.

[Justice Kavanaugh]

I'm sorry.

[Justice (Supreme Court Justice)]

Sorry, go ahead.

[Justice Kavanaugh]

But there's executive branch interpretations and others. And if, if you're in Congress in 1940 and 1952 and you want to limit the scope of Wong Kim Ark or to a limit, eliminate ambiguity, why do you repeat the same language rather than choosing something different? For example, you could use the language from the Civil Rights act of 1866 or some similar formulation. If your idea in 1940 and 1952 was to not have ambiguity or not have an overly broad scope.

[General Sauer (Government's Attorney)]

I think if you look at the

[Justice (Supreme Court Justice)]

structure of that statute where it's 1401

[General Sauer (Government's Attorney)]

A and then B through H, A, it says these are the people who

[Justice (Supreme Court Justice)]

are entitled to birthright citizenship.

[General Sauer (Government's Attorney)]

A is the constitutional standard. And then B through H are all

[Justice (Supreme Court Justice)]

the categories that Congress has super. Added to that. I think the natural inference is that Congress is codifying, which it was consciously doing in 1941, pulling all the naturalization rules and immigration rules together into one statute. Said, you go to one place. Here's who's who is a birthright citizen,

[General Sauer (Government's Attorney)]

A, those get who are guaranteed that

[Justice (Supreme Court Justice)]

right by the citizens citizenship clause, and B through H are the ones that Congress has added through its naturalization power.

[General Sauer (Government's Attorney)]

So that inference to me says A is merely is not trying to change or alter the constitutional standard, just saying, hey, the baseline isn't what the Constitution says. And we, we codify that and then

[Justice (Supreme Court Justice)]

we move on to the new categories

[Justice Kavanaugh]

of what relevance, if any, do you think Section 5 of the 14th Amendment has here that gives Congress the power to enforce, enforce the article, the 14th Amendment by appropriate legislation. Does that give Congress room here or do you not think so?

[General Sauer (Government's Attorney)]

I do think that a ruling in our favor would leave room for Congress. I don't think you'd have to rely on section five.

[Justice (Supreme Court Justice)]

I think that Congress has its own inherent power to grant citizenship by statute.

[General Sauer (Government's Attorney)]

So if the court were to rule

[Justice (Supreme Court Justice)]

in our favor for the classes of individuals that they say should be covered, Congress has the latitude to do that.

[Justice Kavanaugh]

How much rule room do you think section five gives, if any? And it may not be any Congress to interpret the phrase subject to the jurisdiction thereof or to define that. Does it does that is that relevant at all?

[General Sauer (Government's Attorney)]

It's a great question I'm thinking about for the first time.

[Justice (Supreme Court Justice)]

I assume it would be governed by the congruence and proportionality test from this court's case law.

[General Sauer (Government's Attorney)]

How that would apply here I don't know and I don't think it's presented because our contention is that the statute

[Justice (Supreme Court Justice)]

means exactly the same thing. If anything is congruent in progress, proportional, it's that.

[General Sauer (Government's Attorney)]

And I think the court held that

[Justice (Supreme Court Justice)]

in the United States against Georgia.

[Justice Kavanaugh]

You've mentioned several times the practices of other countries and that's obviously as a policy matter supports what you're arguing here. But obviously we try to interpret American law with American precedent based on American history. That's certainly what I try to do and I think you try to to do. And so why should we be thinking about even though as a policy matter I get the point thinking about, gee, European countries don't have this or most other countries, many other countries in the world don't have this, doesn't that. I guess I'm not seeing the relevance as a legal constitutional interpretive matter necessarily, although I understand it's a very good point. As a policy matter.

[General Sauer (Government's Attorney)]

Yeah, I, I largely agree with that.

[Justice (Supreme Court Justice)]

And you can view it as being raised preemptively, defensively. I'm going first. But obviously the other side in there and Miki say, you know, make prediction, end of the world type predictions. And our point is, you know, it's a very small minority because almost every country and certainly all European countries have a different rule and the world hasn't ended there.

[Justice Kavanaugh]

The other side, last one. The other side relies heavily, of course, on Wong Kim Ark. And you disagree with that. Their interpretation oftentimes when you are dealing with a constitutional precedent like this, you might argue we disagree with that interpretation. But if you adopt their interpretation or agree with their interpretation of that precedent, you should overrule it. And you're you haven't made that argument here and I'm just giving you an opportunity to explain why you haven't because

[Justice (Supreme Court Justice)]

we think it's totally unambiguous. In Wonka Market, the holding is is relates to domiciled aliens.

[General Sauer (Government's Attorney)]

And so we strongly agree with the holding. We think domicile was the touchstone and

[Justice (Supreme Court Justice)]

we think that's not a coincidence. For the reason I maybe speculate a little bit when I was talking to Justice Gorsuch about, you know, how the dissent raises this and Then the majority is like we're putting domicile in there. So we know that the absurd conclusion that they say would come from this

[General Sauer (Government's Attorney)]

isn't there, but also domicile as kind of the sort of relationship that creates this relationship of allegiance that makes you part of a political community if you're

[Justice (Supreme Court Justice)]

an alien from another country.

[General Sauer (Government's Attorney)]

That's deeply rooted in their understanding when

[Justice (Supreme Court Justice)]

they're doing they've talked about domicile and

[General Sauer (Government's Attorney)]

Yiko against Hopkins in the 1892 and 1893 cases and there's this deeply rooted

[Justice (Supreme Court Justice)]

understanding again that goes all the way back to the early 19th century. So we think that's a really important conception.

[General Sauer (Government's Attorney)]

So I, I mean we disagree with some of the dicta in Won k Mark that we discuss and we think there's dicta that goes our way that

[Justice (Supreme Court Justice)]

the other side overlooks and we're not

[General Sauer (Government's Attorney)]

asking the court to overruled dicta.

[Justice (Supreme Court Justice)]

We just say don't follow erroneous dicta

[General Sauer (Government's Attorney)]

and don't apply to this brand new

[Justice (Supreme Court Justice)]

situation that was not decided in Wong Kim ark.

[General Sauer (Government's Attorney)]

Thank you, Mr. Sparrett.

[Host/Moderator]

So General Sarah, I want to zoom out a little bit and think about you solely and you sanguinis. So as I understand it, at the time of the 14th amendment those were the two dominant approaches. You know, use solely the English common law, roughly following the soil. Use sanguineous, roughly citizenship following the parents. Now ju sole was very generous on the soil, the English common law and so it extended citizenship to those born there who may not have been born of parent citizens, but jus sanguine. If parents who were citizens and had a child abroad, then that child citizenship followed the parents. So one thing that's puzzling me about your argument, when I think about the ratification of the 14th Amendment, in many ways it would have made sense for them and you acknowledge the US Sanguineous inciting Vattel it would have made sense in some ways for them to say okay, we're going to follow. If they wanted to accomplish what you're saying they wanted to accomplish, you could say, well we're going to follow you sanguinis because we're going to make it all right on parentage. But instead, I mean the 14th amendment we're talking about subject to the jurisdiction thereof. But it also says born in the United States. So you have the Usoli kind of point there. But you're saying it narrowed that point by tying it to the citizenship of the parents at least as the soil. But I take it you're not arguing that United States Citizens who have children born abroad would qualify for birthright citizenship. So it's kind of a narrower view of both the traditional US Solely rule and a narrow view, narrower view of the use sanguineous rules. So why would they have done that? And if they were going to invent an entirely new kind of citizenship like an American brand, why wouldn't we have seen more discussion of that in the debates?

[General Sauer (Government's Attorney)]

I think you do and I say, I think the right way to conceptualize it. It is much more. It is a modified use solely because even the British sources don't just say you're born here, you're a citizen, they

[Justice (Supreme Court Justice)]

say you're born here and you have to be under the protection of the sovereign.

[General Sauer (Government's Attorney)]

You have to have a relationship with. Of allegiance. Allegiance is the word in Calvin's case.

[Host/Moderator]

But they don't focus on the parents, it's the child. And your approach focuses on the parents. Allegiance.

[General Sauer (Government's Attorney)]

Yeah, I'm not sure that that's true.

[Host/Moderator]

Ambiguous. And I'm going to ask your friend on the other side that question.

[General Sauer (Government's Attorney)]

Let me, let me point out then that there are two criteria. One is birth on the soil and

[Justice (Supreme Court Justice)]

the other is allegiance or allegiance we

[General Sauer (Government's Attorney)]

have is birth on the soil remains the same.

[Justice (Supreme Court Justice)]

Right.

[General Sauer (Government's Attorney)]

And so they are. And that's why so much of Wong kill mark is actually we agree with because they are adopting a modified British rule.

[Justice (Supreme Court Justice)]

They are not going the French rule. You know that Patel talks about where it's like who's, who's the citizen.

[General Sauer (Government's Attorney)]

That had to be done by statute,

[Justice (Supreme Court Justice)]

as you pointed out, which it was in 1401.

[General Sauer (Government's Attorney)]

But what they've got is they say

[Justice (Supreme Court Justice)]

birth in the United States and subject to the jurisdiction thereof.

[General Sauer (Government's Attorney)]

That is talked about as allegiance, allegiance, allegiance in the congressional debates. But they were clearly not incorporating the British feudal monarchical conception of allegiance where it's indefeasible.

[Justice (Supreme Court Justice)]

I mean, going back to the early

[General Sauer (Government's Attorney)]

1700s, our nation had repudiated the notion that citizenship is indefeasible. The expatriation statutes for the late 1700s reflect that. And, and again, you look at the 1868 congressional report that we cite there. This is the same group, group of congressmen, Republican congressmen. And they say things like the U. S. Constitution itself is proof that black Blackstone's theory of allegiance was not accepted. So they accept birth on US Soil, but then they take the concept of allegiance and give it its republican democratic American understanding. And that's very, very. I think that makes a ton of sense.

[Host/Moderator]

Okay. And let's talk about its applications. So you Know, there are some. I, I can imagine it being messy on some applications. So how. What would you do with what the common law called foundlings? You know, the thing about this is then you have to adjudicate if you're looking at parents, and if you're looking at parents, domicile, then you have to adjudicate both residents and intent to stay. What if you don't know who the parents are?

[General Sauer (Government's Attorney)]

I think there are marginal cases. That one I think has the benefit

[Justice (Supreme Court Justice)]

of being addressed in 1401 F where it talks about.

[Host/Moderator]

Yeah, yeah, yeah, yeah. But what about the Constitution?

[General Sauer (Government's Attorney)]

Under the Constitution, it's, it's. I mean, look, domicile is a constitutional standard in all kinds of other situations.

[Host/Moderator]

Well, and it's hard.

[General Sauer (Government's Attorney)]

Diversity jurisdiction. Personal jurisdiction.

[Justice Kavanaugh]

Sorry?

[Host/Moderator]

Well, yeah, in a personal jurisdiction. I mean, 1332, diversity, jurisdict. And the thing is, it has to be litigated because it turns on intent. And both the virtue of both us solely and us sanguine is whichever one you pick, it's a bright line rule. How would it work? How would you adjudicate these cases? You're not going to know at the time of birth for some people whether they have the intent to stay or not, including, including U.S. citizens, by the way. I mean, what if you have someone who is living in Norway with, you know, their, their husband and family, but is still a US Citizen, comes home and has her child here and goes back? How do we know whether the child is a US Citizen because the parent didn't have an intent to stay?

[Justice (Supreme Court Justice)]

I'd say make two points, one practical, one legal. The practical point is, under the terms of this Executive Order, you don't have to, because the Executive Order turns on objectively verifiable things, which is immigration status. Are you lawfully present but temporarily present, or do you have an illegal status? So those kind of like, you know, taking evidence, so to speak, under subjective intent wouldn't be done.

[General Sauer (Government's Attorney)]

And as to the constitutional point, obviously

[Justice (Supreme Court Justice)]

domicile is baked into a lot of

[General Sauer (Government's Attorney)]

constitutional and legal concepts.

[Justice (Supreme Court Justice)]

And there, there may be situations where facts are determined.

[General Sauer (Government's Attorney)]

But if you look at the guidance, the guidance that all the agencies did

[Justice (Supreme Court Justice)]

after this court and CASA said the agency can go forward, issue guidance, the

[General Sauer (Government's Attorney)]

guidance provides, I think, very, very clear, objective, verifiable approaches to, to doing this. And, and so the PRA, as a

[Justice (Supreme Court Justice)]

practical matter, I don't think it's presented by this Executive Order.

[Ms. Wang (Solicitor General's Attorney)]

Thank you, General Justice Jackson.

[Justice Jackson]

Good morning, General. So I guess I am looking at your position in this case and it boils down to requiring us to do at least these two things. One is believe that the Framers were not importing the common law rule and understanding of birthright citizenship. And the second is to believe that what they were doing was departing from that common law rule in the way that you suggest that is in the they were seeking to have this turn on domicile. I think you have a number of hurdles to accomplish those two things, one of which I think is that when we look at this court's case law, and no one, I think, has mentioned schooner's exchange, but it appears that that was an 1812 case in which it seems as though the court had already accepted at the time of the ratification of the 14th Amendment that the allegiance that you are talking about was the English common law rule. That, in other words, allegiance meant that you are covered by the laws of the jurisdiction, that you can rely on that jurisdiction's protection. That's what allegiance meant. Now you're saying today, no, no, allegiance meant something about loyalty or that kind of idea. But if the Supreme Court had, prior to the 14th Amendment, established that allegiance meant the common law definition, I think your first hurdle is to help us understand why we would believe that when the common, when the 14th amendment was ratified, the Framers weren't just incorporating what we had previously said it meant.

[General Sauer (Government's Attorney)]

Page 572 of the Congressional Record directly addresses this. They say the concept of temporary and local allegiance from the schooner exchange is what is meant by our temporary and local jurisdiction from the schooner exchange is

[Justice (Supreme Court Justice)]

what is meant by the word jurisdiction

[General Sauer (Government's Attorney)]

in the 14th Amendment. Senator Trumbull says, I thought about saying owing allegiance, but again, quote, there's a sort of allegiance from persons temporarily resident, resident in the United States, whom we have no right to make citizens. So expressly and consciously reliance on.

[Justice Jackson]

What do we do with. I mean, that's a debate and it's a discussion. Very valid. But then we have a subsequent debate between Fessenden and Wade where the same concept comes up, and it becomes clear, at least from Senator Wade's perspective, that that's wrong. So Senate Fessenden and I'm not sure whether these are senators. I apologize. Fessenden says, suppose a person is born here of parents from abroad, temporarily in this country country. Wade responds, the senator says, a person may be born here and not be a citizen. I know that is so in one instance in the case of the children of foreign ministers who reside near the United States, etc. Etc. So it appears as though in that exchange, at least, Senator Wade believed that the English common law understanding of what it means to have allegiance, to be a temporary person on the soil was what was being adopted.

[General Sauer (Government's Attorney)]

Yeah, that content or that exchange strongly supports us. If you look at it in context, Senator Wade has introduced a version that says only birth on US Soil and doesn't have any allegiance or jurisdictional element to it. And so Senator Fessenden stands up and says, well, that can't be right because, you know, obviously, what about the children of temporary visitors? It has this, you know, it's another one of these statements that has this appeal to a background understanding that we all agree that the temporary visitors, their children do not become citizens. And then Senator Wade has to kind of backtrack and say, well, whatever. Children of ambassadors. And in the end, Congress does not adopt Senator Wade's proposal. So we think that to extent you

[Justice (Supreme Court Justice)]

can draw an inference of that, the inference strongly supports.

[Justice Jackson]

All right, well, let me just ask you about why we wouldn't see in the 14th amendment anything about parental allegiance. Several of my colleagues have talked about the fact that your view of this turns on what the status of the parents are and not the child, as would the born in the United States view of it. Can you help us understand why we wouldn't expect to see a mention of parents in the text of this Amendment?

[General Sauer (Government's Attorney)]

I think it was well understood that,

[Justice (Supreme Court Justice)]

for example, children cannot, newborns cannot form domicile.

[General Sauer (Government's Attorney)]

So it follows every 19th century that

[Justice Jackson]

assumes domicile is in the test. And I'm asking you, how do we know that Congress did adopt the test that you say it adopted?

[General Sauer (Government's Attorney)]

When you're looking at 19th century conceptions of allegiance, the notion that the allegiance,

[Justice (Supreme Court Justice)]

again you say domicile, is instantiating the

[General Sauer (Government's Attorney)]

concept of allegiance for aliens as opposed to citizen. All of that.

[Justice (Supreme Court Justice)]

The 19th century understands the newborns domicile. Its allegiance follows the allegiance of the parents.

[General Sauer (Government's Attorney)]

And I point out that their theory

[Justice (Supreme Court Justice)]

relies on parental allegiance as well, because they recognize the exceptions for, you know,

[General Sauer (Government's Attorney)]

hostile invading armies, for tribal Indians, for ambassadors. Again, the child's allegiance status, even on their view, turns on the status of the parent.

[Justice Jackson]

What do we do with. With Professor Mueller's amicus brief and the historical record and the fact that even at times in this country where we understood that the parents were declared enemies of the United States, I'm talking about World War II and Japanese internment, babies born in that circumstance were given birthright citizenship. So it seems as though this concept of allegiance of the parents really wasn't driving birthright citizenship, at least at this period of our History. So are you saying this is wrong or they shouldn't have gotten birthright citizenship?

[General Sauer (Government's Attorney)]

Well, if they were domiciled here, yes, they should have.

[Justice (Supreme Court Justice)]

If they were temporarily protected, present, then, no.

[General Sauer (Government's Attorney)]

But. But the executive practice we can see from the 1930s.

[Justice Jackson]

How does the temporary presence run with your concept of allegiance? I'm not sure I understand. So can you be clear? Are you saying that only people who are domiciled here, as you define it, can form the necessary loyalty to the United States?

[General Sauer (Government's Attorney)]

It's not a question. Allegiance is not a question of subjective loyalty.

[Justice Kagan]

Okay.

[General Sauer (Government's Attorney)]

Oh, it is something you owe. It's a reciprocal relationship between the citizen. Whether they want it or not, they have that allegiance, and I think it's powerful.

[Justice Jackson]

On the basis of what?

[General Sauer (Government's Attorney)]

Domicile. I mean, that's what it says in so many words in the Venus and the Bizarro. It says, look, if you're talking about an alien, if they're just temporarily passing through, no, they don't have allegiance. But if they've made it their permanent home, they become part of our political community and they are analogous or akin to citizens.

[Justice Jackson]

All right, just quickly, because I'm. I'm mindful of the time. What do you do with Won Kim Ark's statement that birthright citizenship is applying, quote, independently of a residence with intention to continue such residents independently of any domiciliation? I know that they use domicile. It's a fact in the case. But that's not a part of their holding. It's not what the reasoning turns on.

[General Sauer (Government's Attorney)]

I believe you're quoting from page 693 of that opinion. It goes on to say, not citizen terms on that, but the duty of obedience to our laws. It doesn't take the further step at

[Justice (Supreme Court Justice)]

that point and say, therefore, if you have temporary local allegiance, you're a citizen.

[General Sauer (Government's Attorney)]

And immediately before that, you have that page 693 summary of the court's holding where it says

[Justice Jackson]

incorporates a domicile requirement.

[Justice (Supreme Court Justice)]

That is the holding.

[General Sauer (Government's Attorney)]

It's definitely clearly expressed in the holding.

[Justice Jackson]

All right. One final thing. Perspective, you say perspective. We're supposed to do this. Don't worry about the people who are already here and who would not qualify under your rule. How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

[Justice (Supreme Court Justice)]

I think that's directly addressed in the SSA guidance that's cited in our Brief,

[General Sauer (Government's Attorney)]

What SSA says is there's currently a

[Justice (Supreme Court Justice)]

system where, for example, secure Social Security numbers are generated based on the birth certificate.

[General Sauer (Government's Attorney)]

They say this can still be for the vast majority of instances, completely transparent.

[Justice (Supreme Court Justice)]

You will still get a.

[Justice Jackson]

No, not transparent. I'm just talking about the particulars. Because now you say your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So we bringing pregnant women in for depositions. What, what are we doing to figure this out?

[General Sauer (Government's Attorney)]

Now, as I pointed out earlier, the executive order turns on lawfulness of status. So if you, if you, if you give birth to a baby in the hospital right now, it gets the birth certificate in the system. There's a computer system.

[Justice Jackson]

So there's no opportunity, there's apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United.

[Justice (Supreme Court Justice)]

Absolutely not.

[General Sauer (Government's Attorney)]

The opposite is true. They're all opportunity to dispute.

[Justice (Supreme Court Justice)]

If they think they were wrongly denied, which would only happen in a tiny

[General Sauer (Government's Attorney)]

minority of cases after that, directly addressing

[Justice Jackson]

that guy after the fact, after their baby has been denied citizenship, then we can go through the process and the way that.

[Justice (Supreme Court Justice)]

I mean, I'm summarizing because I'm not an expert.

[General Sauer (Government's Attorney)]

Computers. But there's a computer program that currently

[Justice (Supreme Court Justice)]

automatically generates a Social Security number.

[General Sauer (Government's Attorney)]

SSA says, look, a Social Security number. Non citizens can have them if they work authorization. So it doesn't prove citizenship. We'll give you a Social Security number provided that there's. The system automatically checks the immigration status

[Justice (Supreme Court Justice)]

parents, which there are robust databases for.

[General Sauer (Government's Attorney)]

And then you. You appears no different to the vast

[Justice (Supreme Court Justice)]

majority of birthing parents.

[Justice Jackson]

Thank you.

[Justice Sotomayor]

Thank you, Council. Miss Wong.

[Ms. Wang (Solicitor General's Attorney)]

Mr. Chief justice, and may it please the court. Ask any American what our citizenship rule is and they'll tell you everyone born here is a citizen alike. That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy. When the government tried to strip Mr. Wong Kim Ark's citizenship on largely the same grounds they raise today, this Court said no. Thirty years after ratification, this court held that the 14th Amendment embodies the English constitution, common law rule. Virtually everyone born on US soil is subject to its jurisdiction and is a citizen. It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign's jurisdiction, even when they're in the United States. A closed set of exceptions to an otherwise universal rule. My friend has now clearly said that the government is not asking you to overrule Won Kim Ark. That is a fatal concession because Wong Kim Ark's controlling rule of decision precludes their parental domicile requirement. The dissent understood that and the majority tells us six times in the opinion that domicile is irrelevant under common law. Lynch v. Clark was already the dominant American case on citizenship and it held that the US born daughter of temporary visitors from Ireland who took the baby back to Ireland with them, that that daughter was a US citizen. Authorities, including Lincoln's Attorney General and Kent's commentaries embraced. Lynch and Kent specifically talked about temporary sojourners children being U.S. citizens. Justice Field said in 1884 that that reflected the general understanding. That understanding was confirmed by Congress with its 1940 Act. The 14th Amendment's fixed bright line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable and it prevents manipulation. The Executive Order fails on all those counts. Swathes of American laws would be rendered senseless. Thousands of American babies will immediately lose their citizenship. And if you credit the government's theory, the citizenship of millions of Americans past, present and future could be called into question. All of this tells us the government's theory is wrong. I welcome the Court's questions.

[Justice Thomas]

There are five exceptions to citizenship that you do accept.

[Ms. Wang (Solicitor General's Attorney)]

Yes. Depending on how many you count. Justice Thomas, how you count them.

[Justice Thomas]

What is the underlying rule of law that you use to connect these five exceptions?

[Ms. Wang (Solicitor General's Attorney)]

Sure. So as I just said, all of the exceptions involve situations where that US born child is not subject to the jurisdiction of the United States because that extraterritoriality, that fiction of extraterritoriality, the interaction of another sovereign between the United States jurisdiction and that person applies to the child as well as to the parent. Everyone else born in the United States is subject to the United States jurisdiction. To answer Justice Barrett's question to my friend, that's what sets those exceptions apart from other US Born persons.

[Justice Sotomayor]

We've heard a lot of talk about Wong Kim Ark and you dismiss the use of the word domicile in it. It appears in the opinion 20, 20 different times and including in the question presented and in the actual legal holding. And the government doesn't want it to be overruled because it relies on it willing to rely on that particular fact. Fact in that case, isn't it at least something to be concerned about to say that since discussed 20 different times and has that significant role in the opinion, that you can just dismiss it as irrelevant?

[Ms. Wang (Solicitor General's Attorney)]

Well, Chief Justice. Mr. Chief Justice, I think we have to look at what the controlling rule of decision is. In Wong Kim Ark, Justice Gray takes pains in the majority opinion to set out his analysis. He first starts with a premise that in construing the 14th Amendment citizenship clause, we look to the English common law. That was the rule that applied from the colonial era on, at least for the colonists and for European immigrants. He then says, look, Chief Justice Marshall tells us in the Schooner exchange what subject to the jurisdiction means. Again, looking to the English common law. Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance. And those who are present in the dominions of the sovereign owe temporary allegiance for as long as they're present. The only exceptions again at common law were ambassadors, people born on foreign ships, and people who are born during periods of foreign occupation. He then gets to the Government's favorite page 693, where he says, look, we have had this rule in the United States as to citizenship, at least for white Americans from before independence. The purpose of the 14th Amendment was to embrace that universal rule of birthright citizenship, to embrace and incorporate the common law exceptions with the single additional exception of the pre existing exception for tribal Indians that we had in the United States, which is an analogous exception. And that's the closed set of exceptions. You can't make sense of the holding in the case without looking to the controlling rule of decision, which is the common law. And I think my friend agrees that under English common law, domicile was not relevant, and the children born to temporary visitors in the territory of the sovereign were always considered birthright citizens.

[Justice Kagan]

Well, Ms. Wang, I mean, everything you say strikes me as. Yeah, that's, that's the way I read it, too. But then what are those 20 domicile words doing there? Like, you can, you know, take some of them and say, I don't. They were just summarizing the facts of the case, but not all of them. And why did they keep on? Like, why did they sprinkle that in the opinion?

[Ms. Wang (Solicitor General's Attorney)]

Well, I think, again, that was. Those were the stipulated facts in the case. And it's clear we have textual evidence in the majority opinion that they were simply saying this is an application of that controlling rule that comes from the English common law. Justice Gray writes again, after setting out the English common law rule and the exceptions with the single additional exception for children of members of Indian tribes, that the amendment, in clear words and manifest intent, includes the children born within the territory of the United States of all other persons of whatever race or color domiciled within the United States. And as was pointed out earlier, the very next part of that same paragraph he cites to Webster talking about Thrasher's case. And he says people who are born in this country owe allegiance independently of a residence within. I'm sorry, foreign nationals owe allegiance independently of a residence with intention to continue such residence, independently of any domiciliation and independently of taking any oath of allegiance which is totally contrary to both the government's theory of dual allegiance or partial allegiance and to the theory of domiciliation.

[Justice Cavanaugh]

I mean, I would. I might agree with you if domicile had simply been sprinkled in the opinion. But in Wong Kim Ark, it's a long opinion. But it begins by saying, here's the question. And it ends by coming back to the question. And it says, here's the question stated at the beginning of the opinion, namely whether a child born in the United States, according to parents of Chinese descent, who at the time of his birth are subjects of the Emperor of China but have a permanent domicile and residence in the United States and are there carrying on business. And he states the diplomatic exception. And he says, for the reasons above stated, this court is of the opinion that the question must be answered in the affirmative. So why put domicile in? Sometimes it's hard to figure out what is the holding of the case. Here he tells us, this is the holding of the case. Why put domicile in there? It's just something. It's something irrelevant that he wanted to throw in. It's like whether a child born in the United States or parents of Chinese descent who once resided at a particular address in San Francisco, who attempted to enter the country at the port of San Francisco. Why put it in if it's a rebel?

[Ms. Wang (Solicitor General's Attorney)]

Well, Justice Alito, all I can. I'll give you two responses. The first is that again, it was a stipulated fact. The second is that regardless of what the judgment in the case was, which again, was an off fortiori application of the rule of decision, the rule of decision in Wong Kim Ark has binding precedential effect. Even if you think that Wong Kim Ark decided the case based on the stipulated facts, you have to follow that controlling rule of decision. And if you follow that rule, you get the same result for people without domicile. Wong Kaim Arc says six times in the first parts of the opinion, as well as on the page the government focuses on that domicile is not relevant.

[Legal Analyst/Commentator]

That what do we do with the fact that after Wong Kiem Arc, at least some. Some authorities took the view that the non domiciliary question wasn't decided, remained open, and even continued to press the view that domicile is required. I know you've got a lot of good stuff on your side too, but what do we do with the fact that many sound legal authorities thought it remained an open question even if one of them wasn't John Marshall Harlan?

[Ms. Wang (Solicitor General's Attorney)]

I liked your example from Justice Harlan's lecture here in D.C. so here's what I would say. All of the government citations in their brief generally either were rejected by Wonk and Mark expressly if they predated Wonk and Mark.

[Legal Analyst/Commentator]

If we're trying to understand how the legal community understood what happened at Won Kmark, it seems to me it's a mess. So maybe you can persuade me otherwise.

[Ms. Wang (Solicitor General's Attorney)]

I think I can. Justice Gorsuch. First, as to the post Won Kim Ark authorities the government cites, each one of them is inconsistent with Wong Kimork's reasoning or doesn't mention it at all. Most of them have very little reasoning at all. And in contrast, what we have on our side post Wong Kiemark is numerous federal court decisions around the time of Wong Kieg Mark between ratification and Wong Kim Mark that said that domicile is not relevant. They cited lynch vs. Clark, which again was about the daughter of temporary sojourners. We have the sixth edition of Kent which was cited in Won K Mark and of course was then cited after Won Kim Ark was decided by many authorities. Again discussing temporary sojourners. Anyone who wanted to know what the law of citizenship was under the 14th amendment after Wong Kim Mark would go to the 6th edition of Kent where he says in that Footnote on page 38 that the rule was lynch vs. Clark and Temporary Sojourner's children are U.S. citizens. We have members of Congress speaking on the record on debates on immigration laws where they were finally passing these immigration restrictions that Senator Cowan wanted. And they all stated either that lynch was the rule that Attorney General Bates had stated the rule, again citing lynch or Kent and stating the rule that everyone born in the US Is a citizen and saying look, children of Chinese immigrants, these immigrants who are unwelcome, these immigrants that Congress is now trying to bar from entering the United States if their children born in the United States are citizens. We have in 1896, so a couple years before Bonkemark, but in 1896 State Department regulation which said the US born children of foreign nationals are US citizens, accepting only the children of ambassadors. And then you have Marshall Woodworth who is A US Attorney who writes in a law review article that he's talking specifically about temporary sojourners children. And he says, I don't think that's a good rule from a policy perspective, but that's the general rule.

[Justice Cavanaugh]

Ms. Wang, can I.

[General Sauer (Government's Attorney)]

Yes, Officer.

[Justice Cavanaugh]

Can I offer a possible explanation for why Justice Gray made a point of putting domicile in what he said was the holding of the case? And it is this. Wong Kim Ark and his parents, had they come to the United States from Europe, could have been naturalized, but because they were Chinese, they could not be naturalized. And they had done everything that they could to make themselves Americans by establishing a domicile in the United States. And so that's what this was about. He couldn't get naturalized because of a racist law, but they had done everything they could to become part of the American society. At the same time, there were many, many men who were horribly exploited, brought to the United States to work on the transcontinental railroad, to work in mines. They were worked to death. They were treated horrifically, but they were not. They were overwhelmingly men. There wasn't an indication that they would stay here. They could stay here. They didn't have permanent homes. And the opinion is drawing a distinction between those two categories of people who would have been well understood at the time when Wong Kim Ark was decided?

[Ms. Wang (Solicitor General's Attorney)]

No, Justice Alito, I don't think that's a plausible explanation for why domiciles mentioned in Wong Kymark because again, the control controlling rule of decision based on the English common law and cases from Schooner exchange to lynch vs. Clark to State vs. Manual, which was the North Carolina decision that said, look, the rule in the United States from independence on has been the English common law rule. It's. That explanation would be inconsistent if.

[Justice Jackson]

But Ms. Wong, isn't that explanation. I take Justice Alito's point, and I. And I think he actually makes a good one in the sense that it could be that Justice Gray emphasized domicile to help the public accept the outcome of this case. You're suggesting that the emphasis on domicile was not a part of the rule, meaning he wasn't saying you had to be like a. A foreigner who is doing everything they can and who can't be naturalized. But he might have emphasized those facts in this case precisely because Chinese immigrants were unwanted, precisely because he had to get this out into the public. And people were going to say, whoa, you're saying these people have to. This, this baby has to be a citizen. And so one could imagine that it was Important for from a standpoint of helping people accept this citizen rule under these circumstances, to emphasize that these particular people in this case were in Justice Alito's first category.

[Ms. Wang (Solicitor General's Attorney)]

I think that is very possible, Justice Jackson. And as evidence of that, I would point to the fact that if you look at the briefing in Wong Kim Ark, you'll see that even though the parties had said stipulated in the district Court that Wong Kim Ark's parents were domiciled in the United States, when the case came to the Supreme Court, the government's brief argued that it was impossible for Chinese immigrants to have domicile because they expressed the view that was common among people who opposed immigration by Chinese nationals to the United States. There was a common view that Chinese people were inherently temporary sojourners in the country. And so I do think it's possible, Justice Alito and Justice Jackson, that he was trying to dispel that notion and tell the government absolutely.

[Justice Jackson]

At least it reads as though he's trying to calm everyone down. These particular people were domiciled. But we're following the English common law rule. And when you look at the English climate law rule, domicile is not a factor.

[Ms. Wang (Solicitor General's Attorney)]

That's right. I think, you know, who knows why the majority opinion mentioned domicile we know is a stipulated fact. We know the government tried to renege on that stipulation and rely on this assumption on the part of anti Chinese advocates at that time that Chinese people couldn't form a domicile in the United States. And he followed the English common law rule.

[Host/Moderator]

I just wanted to ask you a question about how the exceptions fit within the general rule. You've called them exceptions and some of the common law sources call them exceptions. So I take that point. But if we think of you solely as tied to the territory and we look at the exceptions as territorial in a sense, then they seem kind of like natural outgrowths of that rule. And this is what I mean, and this is where I want your help with how the exceptions played out in practice. If you look at Indian reservations as unique places because Indians were quasi sovereigns, separate nations in the American system, if you look at occupied alien territory as territory that's outside the jurisdiction of the United States, and then if you look at the diplomatic exception, almost like diplomats and their children had little bubbles around them, like the embassy is really the territory of that country, and even when they're traveling around, they're all not subject to the jurisdiction by virtue of this territorial fiction. Are those just applications of the rule? And if they are. Then what happens to alien enemies like the German spies and ex Parte Quirin or what? What happens to Indians who are actually not on the reservation but may be born, say, in Baton Rouge? How does the rule apply in those situations? Does it travel with the person or is it tied in some sense to the land?

[Ms. Wang (Solicitor General's Attorney)]

Sure. So let me answer each part in turn. So the thing that all of the exceptions have in common, again, is this sense that the person has this fiction of extraterritoriality around them. Let's set aside the Indian tribal exception for a moment and come back to it. So the example of enemy aliens, for example ex parti Kieran, is one that is answered by Justice Storey in both Inglis and in Rice. And the touchstone under the American application of English common law was that in wartime, the touchstone stone is whether there's a foreign occupation of US Territory.

[Host/Moderator]

So, and that's just to interrupt for one second, clarify, and that is territorial. Sometimes it just seemed to me that the rule varied. Sometimes it was stated as enemy alien, and sometimes it was focused on occupied territory.

[Ms. Wang (Solicitor General's Attorney)]

Sure. So the rule. I don't think there's a separate rule for enemy aliens. And the government's briefs describe the exception as an enemy alien exception. I. I don't think that is the best way to think about it. Rice and English tell you that when the British forces are occupying Castine, Maine, no one is subject to US Jurisdiction there because Britain is ruling, is governing Castine, Maine. And Justice Story explains, look, if the US Then retakes that territory, people, babies who are born to US Citizens by what he called postlimine become US Citizens. So that's the way to think about any wartime situation, enemy aliens or otherwise. As we heard earlier, Professor Mueller's amicus brief tells us how we've thought about enemy aliens in wartime. Even In World War II, when the United States was detaining Japanese nationals who were deemed enemy aliens of the United States, when those enemy aliens had been babies in these detention camps, everyone agreed that those babies were U.S. citizens. And Professor Mueller goes on to explain that, you know, there are many cases of those US Citizens going on to a lifetime of government service to the United States. Everyone agrees those babies are US Citizens like everyone else. So again, the touchstone for enemy aliens

[Host/Moderator]

is, so what about Indian? What about the Indian who's off the reservation or born off of a reservation?

[Ms. Wang (Solicitor General's Attorney)]

Sure. So to start with the basics, I'll refer to the Indian tribal exception, just to use the term of art, the Indian tribal exception, Elk vs. Wilkins tells us comes from the constitutionally unique status of Indian tribes in the Indian Commerce clause. We know that tribes are treated as basically quasi sovereign nations. We know that from the Marshall trilogy of cases. We know from Worcester versus Georgia where Chief Justice Marshall said that the tribes are essentially distinct political community.

[Host/Moderator]

Well, I understand all that. So just in the entrance of time, just to I understand why the Indians are treated differently for purposes of the law. But I want to know, is it tied to territory or is it tied to the status of someone as a member of a tribe? Because if you're looking at it because of the special relationship of Indians to the United States as a matter of the Constitution, et cetera. Well, I mean, citizens of France are citizens of a different sovereign as well.

[Justice Alito]

Sure.

[Ms. Wang (Solicitor General's Attorney)]

So Elk v. Wilkins doesn't really answer that question. The court says there are two ways to look at this. Either you look at it as the tribal member is like an ambassador, or you can look at it like there's a territoriality issue where people are born on tribal lands and therefore they're essentially, I think he says, Justice Gray says at one point we might as well be talking about someone who's born in Mexico.

[Legal Analyst/Commentator]

Well, there's a lot in Elk, and some of it's not terribly helpful for you, it seems to me, because Justice Gray again strikes again, says that they may be subject in some degree or respect to the United States. So there's some jurisdiction. He says they're born within the geographic limits. They are, in a geographical sense, born in the United States. But because they are not completely subject to the jurisdiction of the United States and owe allegiance distinct from the United States, that's what takes them outside. And that language, it sure sounds a lot like the Solicitor General's presentation today.

[Ms. Wang (Solicitor General's Attorney)]

To the contrary, Justice Gorsuch, I embrace that part of Elk v. Wilkins holding. Justice Gray, of course, wrote both. Wong, Kim, Arkansas.

[Legal Analyst/Commentator]

I know, and it's a struggle.

[Ms. Wang (Solicitor General's Attorney)]

Sure. Let me try to help you out with that. So, you know, the government tries to make it seem as though what sets the exceptions apart, what defines the exceptions, is that the government has some maximum theoretical power. The government could have exercised plenary regulatory power over the tribes, and therefore that's the same situation as a foreign national in the United States. But that's actually not true because, remember, if the there's always this background notion, whatever the parameters of the relationship between the United States government and tribal nations, at that time of ratification, there was this constitutionally distinct status of the tribes and tribal members, setting them excluding from apportionment which came was renewed in the 14th Amendment, and that's not true of foreign nationals. If the government were right that the question is what's the maximum theoretical power the government has, There would be no ambassador exception. Because, of course, the United States could decide in some instance to go ahead and prosecute an ambassador. There would be inter sovereign comedy considerations there. That's how you define the exceptions. And as Wong Kim Ark says, Elk v. Wilkins has no bearing on the question of foreign nationals.

[Justice Alito]

Ms. Hwang, on the earlier answer you gave to Justice Gorsuch on the temporary sojourner's cases, those were distinct cases. Correct. Where the parents had come to the US and didn't want to give citizenship to their kids, took them out immediately. Correct.

[Ms. Wang (Solicitor General's Attorney)]

I'm sorry, Justice Sotomayor, I'm not sure which cases you're referring to.

[General Sauer (Government's Attorney)]

All right.

[Justice Alito]

That we can look at.

[Justice Kagan]

Okay.

[Justice Cavanaugh]

Ms. Wang, would you agree that the citizenship test in the 14th amendment amendment is the same as the test in the 1866 Civil Rights Act?

[Ms. Wang (Solicitor General's Attorney)]

So the words are obviously different. What Wong Kim Ark tells us and what the debates tell us is that the framers, they were the same. It was the same Congress, obviously, framing both. Congress was trying to do the same thing with both the 1866 act and with the 14th Amendment. They wanted to capture the common law exceptions and the Indian tribal exception. They started out with the two separate phrases, not subject to any foreign power, plus excluding Indians, not taxed. And as Justice Gray described it in his majority opinion in Won Kim Ark, they decided to switch to the affirmative phrase, subject to the jurisdiction.

[General Sauer (Government's Attorney)]

Yeah.

[Justice Cavanaugh]

Well, do they mean the same thing? And wouldn't it be very odd if the citizenship test in the 14th Amendment were broader than the citizenship test in the 1866 Civil Rights Act? Particularly in the light of the fact that the 1866 Civil Rights act was reenacted after the adoption of the 14th Amendment and remained in place until 1940.

[Justice (Supreme Court Justice)]

Sure.

[Ms. Wang (Solicitor General's Attorney)]

The framers were trying to do the same thing with the language in both.

[Justice Cavanaugh]

Okay, so then I think we can turn to the language of the 1866 Civil Rights act because it's more straightforward. You know, subject to the jurisdiction thereof is like the, you know, the puzzle wrapped in an enigma wrapped in a mystery, but not subject to any foreign power is pretty straightforward. So let me give you these examples. A boy is born here to an Iranian father who has entered the country illegally. That boy is automatically an Iranian national at birth, and he has a duty to provide military service to the Iranian government. Is he not subject to any foreign

[Ms. Wang (Solicitor General's Attorney)]

power not within the meaning of the 1866 Act. Justice Alito, and that's clear from Wong Kim Ark and it's clear from the debates what the framers meant by the phrase not subject to any foreign power was referring to the ambassador, except exception. If it meant what the government contends basically not a subject of any foreign power that you were that another country considers you a you sanguineous citizen, then lawful permanent residents, all foreign nationals, ordinary public.

[Justice Cavanaugh]

Ordinary public meaning of that would certainly encompass that boy, would it not?

[Ms. Wang (Solicitor General's Attorney)]

Justice Alito, if you think that the language of the 1866 act was ambiguous, as Wong Kim Ark says, the shift to the language of the 14th Amendment, which is the operative text, certainly clears up any ambiguity.

[Justice Cavanaugh]

What I said about a boy born to an Iranian father is true of children born here to parents who were nationals of other countries. If I'm correct, it's true to a child who's born here to Russian parents. It's true to a child who's born born here to Mexican parents. They're automatically citizens or nationals of those countries and have a duty of military service. It sure seems like that's a that makes them subject to a foreign power.

[Ms. Wang (Solicitor General's Attorney)]

But again, Justice Alito, that would have meant that the children of Irish, Italian and other immigrants which Wong Kilmark refers to in the debate the framers refer to would not have been citizens either. Because if the only test is whether that US born child is considered a citizen by another country under their EU sanguineous laws, then no foreign nationals children

[Justice Cavanaugh]

would be well, in all of those cases, the parents could be naturalized and then the children would be derivatively nationalized. Naturalized, naturalized when the parents were naturalized. Won Kim Ark I'm sorry. Wong Kim Ark has a passage explaining how this court should treat dicta and it quotes something that John Marshall said. It is well, this is quoting from Wong Kim, Arkansas. It is well to bear in mind the oft quoted words of Chief Justice Marshall. It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for a decision. So does that fall within the you know, what's good for the goose is good for the gander rule? That's how Wong Kim Ark treats what was said in the slaughterhouse case cases. Should we apply that same rule to Wong Kim Ark itself?

[Ms. Wang (Solicitor General's Attorney)]

Wong Kim Ark Tells you what to make of the slaughterhouse Dicta. It was dicta. The issue of citizenship was not at play in slaughterhouse. And in contrast, the parts of the holding of the parts of the decision that I alluded to are the controlling rule of decision. Again, we look to the English common law in construing the 14th Amendment.

[Justice Sotomayor]

Thank you, Counsel.

[General Sauer (Government's Attorney)]

Justice Thomas. Anything further? Justice Alito?

[Justice Cavanaugh]

Just a couple more questions.

[General Sauer (Government's Attorney)]

So if

[Justice Cavanaugh]

those who framed and adopted the 14th amendment had wanted to limit the citizenship test to just those specific groups that you concede fall outside the birthright citizenship rule, why didn't they refer specifically to those groups? Why did they adopt a general rule? They could have said all persons born are naturalized in the United States, excluding Indians not taxed and those ineligible under common law are citizens of the United States and of the state wherein they reside. Or they could have said all persons born are naturalized in the United States, excluding Indians not taxed, and the children of foreign ambassadors or foreign invaders are citizens of the United States and of the state wherein they reside. But they didn't do that. They adopted a general rule. So what's the explanation?

[Ms. Wang (Solicitor General's Attorney)]

I would say the Wong Kim Ark tells us what the explanation is. That the framers of the 14th Amendment, after overriding President Johnson's veto, wanted to adopt a universal rule with a closed set of exceptions. And they believed that subject to the jurisdiction of the United States did that. And that term does describe both the universal general rule and the common law exceptions, with the sole additional American exception for tribal Indians.

[Justice Sotomayor]

Thank you, Justice Sotomayor.

[Justice Alito]

Ms. Huang, I don't. I've not quite understood the Solicitor General's argument that lawful domicile Somehow changes the US's dominion over a person or allegiance. Even in Justice Alito's examples, if your parents are Iranian, if you get permanent, lawful permanent residency here, that child still by their laws, when it leaves the United States, must serve in the Iranian army, correct?

[Ms. Wang (Solicitor General's Attorney)]

Well, I don't know the answer to that. What I can tell you is that under Wong Kim, Arkansas, the Court says we don't care about problems of dual nationality. We don't look to other countries laws in construing our 14th amendment.

[Justice Alito]

Well, it was undisputed there that Wang Kim Ark's parents owed loyalties to China, correct?

[Ms. Wang (Solicitor General's Attorney)]

Sure. Yes.

[Justice Alito]

What I'm saying is even if you become a permanent resident, you're not a U.S. citizen. So your primary loyalty still remains with your citizenship country, wherever you came from.

[Ms. Wang (Solicitor General's Attorney)]

That's right. Justice Sotomayor, I take your point.

[Justice Alito]

Now you understand what I'm saying. And during temporary, whether it's lawful or unlawful temporary presence in the United States, you are subject to the U.S. laws, correct?

[Ms. Wang (Solicitor General's Attorney)]

That's right. The question that the 14th Amendment asks is whether the U.S. born child is subject to U.S. jurisdiction when they're born,

[Justice Alito]

meaning are they within the U.S. territory.

[Ms. Wang (Solicitor General's Attorney)]

Exactly. Other than people covered by that closed set of exceptions.

[Justice Alito]

Thank you.

[Ms. Wang (Solicitor General's Attorney)]

That's right. In other words, the government's rule, which really is looking at whether someone has a divided allegiance because they're a citizen of another country, would exclude the children of all foreign nationals. And that isn't what. What they're saying.

[Justice Alito]

Exactly. So the only way that allegiance, lawful or unlawful, can has no play in this question.

[Ms. Wang (Solicitor General's Attorney)]

I would say that the relevance of allegiance is the relevance under the English common law rule that's embodied in the 14th Amendment. All persons born in the territory of the sovereign owe natural allegiance.

[Justice Alito]

Limited three limited exceptions.

[Ms. Wang (Solicitor General's Attorney)]

Precisely.

[General Sauer (Government's Attorney)]

Justice Kagan, I think I'd like to

[Justice Kagan]

take you back to the first question that Justice Alito asked General Sauer, and it was this question of what do we do if we think we have a new problem that didn't exist at the time of the 14th Amendment? I don't think actually that the U.S. government argues the case this way. But. But let's put the US Government's arguments aside and just ask something like, well, everything that you're saying would suggest an answer to the question of people who. The children of people who are temporarily in the US but here lawfully. Is there any way that there might be a different answer with respect to the children of people who are here unlawfully because of this new problem issue that Justice Alito has raised.

[Ms. Wang (Solicitor General's Attorney)]

No, there is no difference. And of course, the government's arguments as to people who are unauthorized immigrants in this country all runs through and hinges on their domicile requirement. The first thing I would say in response is that once again, it's crystal clear from Wong Kim Ark and from the debates that the framers of the 14th Amendment meant to have a universal common law rule of 60 citizenship subject to the closed set of exceptions. And we can't take the current administration's policy considerations into account to try to re engineer and radically reinterpret the original meaning of the 14th Amendment. The second point I would make is that in fact, the framers did consider the concept and the actual problems of immigration that were coming up at that time, in addition to this notable exchange between Senator Cowan and Senator Coness where Cowan says, if we have this citizenship clause as part of the Constitution, we are going to encourage these gypsies, what he called gypsies Roma in Pennsylvania, whom he characterized as invaders, trespassers and lawbreakers, will encourage them to come into our country because they're children, will be citizens. He says, Senator Coness, in your state of California, you will be facing a mass flood of Chinese immigration if we adopt the citizenship rule. And Senator Coness, himself an Irish immigrant, says yes, and I am voting for that because I believe in citizenship by virtue of birth without regard to parentage. And the third point I would make is in a historic historical one, which is that recall that at the time the Framers are thinking about birthright citizenship, there had just been 15 or 20 years of unprecedented immigration from Ireland.

[Justice Alito]

There were.

[Ms. Wang (Solicitor General's Attorney)]

The Know Nothing Party was dominant in the 1850s, just a decade earlier, and they were vehemently opposed to Irish immigration. They believed Irish Catholic immigrants were unassimilable and could never become Americans. But even the Know Nothing Party members of Congress believed that the children born in the United States to those Irish immigrants were citizens like anyone else. That's the intuition that the framers of the 14th Amendment had. Contrary to the. To the government, the government's arguments. Now, they wanted to grow this country. They wanted to make sure we had a citizenry to populate the military, to settle the country. And they also had an intuition that was consistent with the founding aversion to inherited rights and disabilities.

[Justice Alito]

Thank you, Justice Gorsuch.

[Justice Kavanaugh]

Justice Kavanaugh, on Lynch v. Clark, which you cite several times in the brief and today, which I appreciate the government's response is that that decision was questioned at the time and went unmentioned in congressional debates about the 14th Amendment. I just want to get your response to that point on Lynch.

[Host/Moderator]

Sure.

[Ms. Wang (Solicitor General's Attorney)]

Not true, though. The lynch was not specifically mentioned by name in the 14th Amendment debates. It was a couple months earlier in the debates on the 18th, 1966 act, where Senator Trumbull. I'm sorry, Senator Lawrence, talks about the great case of Lynch v. Clark, where it was conclusively shown that all children born here are citizens without any regard to the political condition or allegiance of their parents. And then of course, they discuss the children of temporary sojourners elsewhere without mentioning Lynch.

[Justice Kavanaugh]

Just want to isolate a point that you've mentioned, which is if the 14th amendment used the phrase not subject to any foreign power to give a much tougher argument. And then earlier, I think you indicated that that's what they meant, even though they didn't say it. I just want to Give you a chance to unpack that, because I think that's. If it said that, I think our history would be a little different. And I think the text, even put aside the history, because that's speculation. The text would be quite a bit different.

[Justice Alito]

Sure.

[Ms. Wang (Solicitor General's Attorney)]

So let me answer in three parts. The first is that Wong Kim Wak tells us that, you know, the Court already dealt with this and said, look, the Framers were trying to do the same thing with the language of the 1866 Act. To the extent you think that the language is ambiguous or not as good, let's look at the operative text subject to the jurisdiction thereof. The second point I would make is that it's clear from the debates that the framers, in using the phrase not subject to any foreign power, were thinking about ambassadors. And I believe that Senator Wade at one point says, well, I wanted to start with the phrase all persons born in the United States are U.S. citizens. But then I thought, oh, wait, we have these temporary visitors. In fact, the government points to this quote, he says, so there are these temporary contemporary visitors. We can't make citizens and we can't make their children citizens. That's ambassadors. And that's very clear from them.

[Justice Kavanaugh]

So if that had been the text, your argument would be that was understood to be narrower than its text would read. Yes, but that's not the text, so I guess we don't need to deal with that.

[Ms. Wang (Solicitor General's Attorney)]

Sure. And that brings me to my third point, which is you can't read not subject to any foreign power the way the government urges you to without making the children of all, all foreign nationals non citizens. And that's clearly not what the Framers were doing.

[Justice Kavanaugh]

Justice Alito and Justice Kagan raised an interpretive question that I think is important, which is, are the exceptions. You've used the word closed many times.

[Ms. Wang (Solicitor General's Attorney)]

Frozen.

[General Sauer (Government's Attorney)]

Okay, this is the war Room.

[News Anchor/Reporter]

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