Trump v. Barbara Symposium: Jack Chin on Lessons from the Oral Arguments
This is the first contribution in a symposium on the oral arguments in Trump v. Barbara, the case that will decide the future of birthright citizenship.
Jack Chin on lessons from the oral arguments:
The argument in Trump v. Barbara was fascinating and revealing. Unsurprisingly, the justices seemed well-prepared, were suspicious of the government’s position, but had hard questions for both sides. If I had been in the courthouse during the argument, I would have shouted out these two points from the gallery, both related to questions by Justice Amy Coney Barrett:
1. Members of Tribes are now Fourteenth Amendment Citizens. Justice Barrett asked both sides whether, contrary to Elk v. Wilkins (1884), under current law people born as members of federally recognized Indian tribes are citizens under the Fourteenth Amendment. There is no question that tribal members born in the U.S. are citizens, given the Indian Citizenship Act of 1924. But would they be citizens without the statute? ACLU lawyer Cecillia Wang said no, but I think such persons are 14th Amendment citizens.
The Court’s holding in Elk v. Wilkins that persons born in tribal relations were not “subject to the jurisdiction” of the U.S. was a product of its moment. The 1883 Supreme Court decision in Ex parte Crow Dog held that tribal members were not subject to ordinary U.S. criminal jurisdiction: Speaking of federal law and treaties with tribes, the Court explained: “it was no part of the design to treat the individuals as separately responsible and amenable, in all their personal and domestic relations with each other, to the general laws of the United States outside of those which were enacted expressly with reference to them as members of an Indian tribe.”
The decision in Elk v. Wilkins, the following year, that persons born as members of tribal nations were not “subject to the jurisdiction” of the U.S. was consistent with Crow Dog’s holding that such persons were at least partially exempt from U.S. criminal jurisdiction. But in 1885, Congress by statute gave jurisdiction to federal courts for serious crimes committed by tribal members on even on reservations or in federal territories. In United States v. Kagama (1886), the Supreme Court upheld the 1885 decision to expand criminal jurisdiction. Through such measures as the Indian Civil Rights Act of 1968, federal law has imposed requirements on tribal justice systems.
Two conclusions may be drawn from these precedents and their progeny. First, notwithstanding continued federal recognition of and respect for tribal sovereignty, there is a much stronger argument now than when Elk v. Wilkins was decided that persons born to tribal members are “subject to the jurisdiction” of the United States at birth, and therefore citizens, independently of the Indian Citizenship Act of 1924.
Second, as is demonstrated in the amicus brief of scholars Gregory Ablavsky and Bethany Berger, the “jurisdiction” from which Elk was exempt was ordinary legislative jurisdiction. And U.S. law sometimes withheld jurisdiction by policy, not because some constitutional or other impediment prevented assumption of jurisdiction on members of tribes. In this sense, the “jurisdiction” to which foreign diplomats are exempt is identical: Tribal members and foreign diplomats are immune from U.S. criminal law to the extent that U.S. law (such as the Vienna Convention and its implementing statutes) so provides, not because of any principle or right independent of U.S. law. By contrast, no one has ever suggested that dual citizens or immigrants, documented or otherwise, are not subject to the ordinary civil and criminal jurisdiction of the United States.
2. The Government Had no Plausible Answer to the Issue of Deportable Enslaved Persons. In a recent article, Paul Finkelman and I, expanding on a point made by Gerry Neuman, explained that in 1868 there were indeed undocumented people in the United States, namely, enslaved people brought here in violation of the prohibition on the slave trade. We also noted that no one questioned that the citizenship clause was intended to grant citizenship to all persons of African ancestry born in the United States, including the children of enslaved persons who were deportable under the Act of Mar. 3, 1819, ch. 101, 3 Stat. 532. That act provided that people unlawfully imported into the United States were subject to deportation, whether they wanted to go or not. The Supreme Court’s 1841 decision in The Amistad case, perhaps the first federal judicial reversal of a deportation order, explained that deportation was required only when enslaved people were imported to the U.S., not, when enslaved people liberated themselves and came here as free people.
The government’s Reply Brief addressed the issue of the citizenship of unlawfully imported enslaved persons: “In the eyes of the Fourteenth Amendment’s framers, ‘the abolition of slavery made every slave in the United States a presumptive citizen,’ and freed slaves owed ‘allegiance to the United States’ regardless of the circumstances of their enslavement.” But the Act of March 3, 1819 was not repealed before the Fourteenth Amendment was enacted. If the Reply Brief is right, then some law passed during Reconstruction intentionally and consciously made citizens of people who were, until the moment that law took effect, deportable noncitizens. If so, any contention that Congress could not have intended to grant citizenship to undocumented people or their children, vanishes.[1] According to the government, that’s exactly what Congress did.
The government also recognized “a meaningful difference between people who voluntarily violate our immigration laws and people who were ‘forced against their will to enter the United States’ as slaves.” This lovely, humane point also gives up the game. If the spirit of the Fourteenth Amendment refuses to punish innocents by denial of citizenship for the faults of others, then children born here are equally entitled to the benefit of that principle. Whatever the status of their parents, the newborn children of unauthorized migrants or temporary visitors also have done nothing wrong.
Justice Barrett raised the issue at oral argument, asking the government about the citizenship status of the children of enslaved persons (Transcript at 26-27). Understandably, the response did not include the contentions of the Reply Brief. Instead, the government argued: “even though their entry may have been unlawful, 19th century antebellum law never treated their presence as unlawful. In fact, quite the opposite. One of the amici, in fact, points to, like, a Mississippi statute, which probably is replicated throughout the South before the Civil War, that says slaves in Mississippi have an indefeasible domicile in Mississippi.”
Presumably, the Supreme Court will not adopt a rule for birthright citizenship turning on state law domicile rules. If it did, the Executive Order would be invalid as to those born in states recognizing domicile of the undocumented and temporary migrants, and valid in other states.
It is more likely that the Court would grant the same status to all children of people whose entry was prohibited and who were subject to deportation by federal law, regardless of the details of state law. The SG was apparently unaware of the provision for deportation in the Act of 1819. I hope the Supreme Court knows of it, and considers it.
FOOTNOTE
[1] Leave aside the Supreme Court’s repeated denials that there is any path to citizenship other than positive law. If a person was an enslaved noncitizen when born in the United States, it is not clear how abolition of slavery changes that person’s citizenship. A key point of Elk v. Wilkins is that status as a birthright citizen, or not, is fixed at birth.
