Guest Column: Dr. John Eastman on Birthright Citizenship

On Independence Day, Eastman presents his argument in support of President Trump's birthright citizenship proclamation and his criticism of SCOTUS' dissent in universal preliminary injunction matter.

Photo by Brandon Mowinkel on Unsplash

Dr. John Eastman is a Senior Fellow at the Claremont Institute.

The Supreme Court’s blockbuster cases—in other words, those that are politically controversial—always seem to be decided in late June at the very end of the term. October Term 2024, which ended last Friday, is no exception.

Planned Parenthood does not have standing to challenge South Carolina’s decision to exclude it from Medicaid funding, the Court held in Medina v. Planned Parenthood South Atlantic. Texas’s law requiring that websites publishing sexually explicit content verify that visitors to the site are over 18 is constitutional, stated the Court in Free Speech Coalition v. Paxton. And Mahmoud v. Taylor indicates that parents of children in grades K-5 entitled to a preliminary injunction allowing them to opt their children out of “LGBTQ+inclusive” storybooks.

But the case causing the most apoplexy on the left is Trump v. CASA, Inc., which held that lower courts exceed their authority when they issue nationwide or “universal” injunctions that block the implementation of executive orders beyond the actual parties to the case.

The CASA case involved challenges to President Trump’s Day-1 Executive Order articulating that the Citizenship Clause of the 14^th Amendment does not mandate automatic or “birthright” citizenship for children born to parents present in the United States only temporarily or illegally. Within 24 hours of the issuance of that order, seven cases had been filed challenging it, and another five followed in the weeks after, all clearly forum shopping in districts with judges overwhelmingly appointed by Democratic presidents.

A federal judge in Seattle issued a temporary restraining order (TRO) just two days after the order, which, as he admitted from the bench, he had signed even before the hearing for TRO began. Stunningly and not-so-subtly, the judge threatened the government attorneys with sanctions for daring to defend the president’s order.

Preliminary injunctions soon followed, and although a couple of them were properly limited to the parties in the case, the injunctions issued by the district courts in Maryland, Massachusetts, and Washington in the three major cases were all nationwide in scope.

The greatest angst from the left over the CASA decision was its holding that nationwide injunctions, which go well beyond the parties to the particular case, exceed the district courts’ power under the Act of Congress which created them (and, quite arguably, the Constitution’s Article III text that limits the judicial power to “cases or controversies,” though the Court did not reach that alternative argument). This outrage is undoubtedly explained by the fact that the only power the left has at the moment is in black-robed, Obama- or Biden-appointed judges bent on thwarting the agenda President Trump was overwhelmingly elected by the American people last November to advance.

Same Relief, Different Name

The Court’s decision in CASA clipped those left-leaning judges’ wings, although to be candid, only by a bit. A ruling by a lower court on remand that would have the same effect as a nationwide injunction might be had via a nationwide class action. And although in their concurring opinions both Justices Alito and Kavanaugh cautioned the lower courts against granting class certification without undergoing the rigorous analysis required for such certifications, it is very likely that forum-selected, agenda-driven lower-court judges will not heed their warning and instead will certify a nationwide class and then enjoin the president’s Executive Order against all members of the class.

Doing so would ignore a couple of longstanding and very basic legal propositions. The first is that there must be questions of law or fact common to the class. The second is that, for preliminary injunctive relief to issue, there must be some “irreparable harm.”

This case should fail to meet an assessment of “irreparable harm” for class certification. By definition, irreparable harms are only those harms that cannot be remedied after a final judgment is issued. The non-recognition of citizenship to children born in the U.S. to illegal alien parents or to parents only temporarily visiting the United States, as the Executive Order requires, can in most cases be fully remedied by retroactive recognition of citizenship if a final judgment determines that the president’s interpretation of the Citizenship Clause of the 14^th Amendment was incorrect.

Even the loss, in the interim, of financial benefits available only to citizens can be fully remedied by retroactive payment of those benefits with interest, which is why monetary damages almost never qualify as “irreparable” harm.

To be sure, there may be a few instances where illegal alien parents (and the child along with them) could be detained by immigration authorities and put in the pipeline for deportation before the legal challenges to the Executive Order can be completed. Such might be interpreted as an “irreparable” injury, although, depending on the circumstances, even that might be fully remedied by a subsequent permission to return to the United States.

The point for nationwide class certification, though, is the possibility that there may be illegal alien parents of some children born in the U.S. under the rule set out in the Executive Order destroys the commonality requirement necessary for class-wide, preliminary injunctive relief.

Dramatic Dissent Buries the Truth of the Matter

In her dissenting opinion, Justice Sotomayor laughably contends that “the Order may even wrench newborns from the arms of parents lawfully in the United States, for it purports to strip citizenship from the children of parents legally present on a temporary basis.” “Those newborns,” she adds, “could face deportation, even as their parents remain lawfully in the country.” Had she bothered to look, she would have realized that the children of lawful, temporary visitors to this country, such as those on student or work visas, hold a “derivative nonimmigrant status” based on the parent’s nonimmigrant status.

But that is only the tip of the iceberg when it comes to the dishonesty in the two dissenting opinions.

In addition, Justice Sotomayor claimed that the Department of Justice did not defend the legality of the Executive Order. Indeed, she went so far as to contend that “Nowhere [in the three motions to stay the injunctions filed in the courts of appeal] did the Government contest the District Courts’ uniform holdings that the Citizenship Order likely violated the Constitution.”

This is demonstrably false, as in each of the three motions the government quite explicitly argued that "The Executive Order explains that the Constitution does not grant birthright citizenship to the children of aliens who are unlawfully present in the United States or whose presence is lawful but temporary.

Text, history, and precedent demonstrate that the Executive Order's interpretation of the Citizenship Clause is correct, as the government will explain in its merits brief in this Court.”

More egregious is Justice Sotomayor’s false claim, made repeatedly, that the Supreme Court has previously “held,” numerous times, that anyone born on U.S. soil, including to children of temporary visitors or illegal aliens, is a citizen. The truth is exactly the opposite.

The Supreme Court has never held that the children of temporary visitors or illegal aliens are entitled to the automatic citizenship conferred by the Citizenship Clause of the 14^th Amendment. Never. The principal case on which she relies for that claim is the 1898 decision in Wong Kim Ark, but that case, quite expressly and repeatedly noted that it dealt with parents who were lawfully and permanently domiciled in the United States. Any language beyond that in the opinion is dicta, not holding.

The same is true of the language she cites in a handful of other Supreme Court cases—dicta. Her claim that “This Court’s precedent establishes beyond a shade of doubt that the Executive Order is unconstitutional” is therefore patently untrue.

Furthering this false claim as if repeating it makes it true—a propaganda technique known as “the big lie” perfected by Joseph Goebbels in Nazi Germany—Justices Sotomayor and Jackson together claim more than 50 times in their respective dissenting opinions that President Trump’s Executive Order is “patently unconstitutional,” “unquestionably unconstitutional,” “lawless,” a violation of “settled law,” “flagrantly illegal,” or some variation on that theme. It is even an ”assault on our constitutional order,” Justice Sotomayor hyperventilated.

History Supports the President’s Policy

Yet the dissenting justices make these pronouncements without even mentioning, much less rebutting, the significant historical evidence during the drafting and ratification of the 14^th Amendment, Supreme Court decisions shortly thereafter, treatise writers, and even executive branch determinations in the decades following ratification, all of which strongly support the president’s interpretation of the Citizenship Clause as a matter of original public meaning. It is not as if the justices did not have this information available to them.

Several amicus briefs (my own included) had described and cited this extensive historical evidence. The Department of Justice itself had likewise cited all this evidence and more in the briefs it filed in the courts below when the “substantial likelihood of success on the merits” was at issue.

Such evidence includes statements by the leading congressional sponsors of the 14^th Amendment that the language “subject to the jurisdiction” means “a full and complete jurisdiction” and “not being subject to some foreign power.” In other words, it is not enough that a person is subject to the kind of partial jurisdiction that requires compliance with the laws; he must also be free from the jurisdiction of any other nation.

It includes the Supreme Court’s initial opinion addressing (albeit in dicta) the Citizenship Clause a few years after ratification in The Slaughter-House Cases, noting that the phrase, “subject to the jurisdiction, was intended ‘to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.’” It includes the high Court’s opinion in Elk v. Wilkins (a case regarding an Indian tribe that came a decade after the passage of the amendment), actually holding that the phrase required being “completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” At the time that was not a requirement that a member of an Indian tribe—even a domestic dependent tribe such as was at issue—met, much less someone whose primary allegiance was to a foreign power.

The evidence also includes this from the leading constitutional treatise writer of the day, Thomas Cooley, who wrote that being “subject to the jurisdiction thereof” meant “that full and complete jurisdiction to which citizens generally are subject, and not any qualified or partial jurisdiction, such as may consist with allegiance to some other government.” In addition, there were the actions of the secretary of State in the decades following adoption of the 14^th Amendment, denying citizenship to children born on U.S. soil to parents who were merely temporarily visiting the United States and therefore owed allegiance to a foreign power.

Ahistorical Diatribes Don’t Change the Facts

The dissenting justices completely ignore this evidence. Yet only by ignoring it can they even plausibly make the claim, as Justice Sotomayor does, that “every conceivable source of law confirms [that] birthright citizenship is the law of the land” or that the “subject to the jurisdiction” condition contained in the text of the Constitution “leaves no room for ambiguity.”

Justice Sotomayor also engages in the fallacy of cherry-picking phrases that appear, out of context, to support her position. She claims, for example, that Senator John Conness of California confirmed on the floor of the Senate “that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection of the law.” “We have declared that by law” in the Civil Rights Act, she further quotes him, and “now it is proposed to incorporate that same provision in the fundamental instrument of the nation.”

There are two glaring problems with Sotomayor’s claim. First, she omits that Conness was responding to a question from Senator Edgar Cowan of Pennsylvania, by which he expressly asked whether the children of Chinese were to have more rights than sojourners, necessarily implying that sojourners—temporary visitors—would not be entitled to automatic citizenship. Second, she fails to mention that the Civil Rights Act of 1866, to which Conness referred, expressly granted citizenship only to those who were “not subject to any foreign power.” Children born to parents who are here only temporarily—whether legally or illegally—are subject through their parents, and owe allegiance to, the “foreign power” of their parents’ home country.

A rather significant omission, I would say.

She even cites James Madison for the proposition that birthright citizenship was the rule from the time of the nation’s founding, omitting that Madison’s comment came in a discussion about whether one William Smith met the citizenship and residency requirements to hold a seat in Congress. Smith had been born in the United States before the Declaration of Independence, so he was clearly a British subject at the time of his birth and became an American citizen by virtue of the Declaration of Independence.

The dispute had absolutely nothing to do with the status of birthright citizenship in the U.S. following Independence. Indeed, the closing paragraph of the Declaration of Independence itself is an eloquent renunciation of the perpetual allegiance mandated by the British rule of jus soli (right of soil).

Justice Sotomayor also mischaracterizes Justice Story’s views on the subject. Quoting a line out of context from his opinion in the Inglis case that “the children even of aliens born in a country … are subjects by birth,” she ignores that the case arose out of a dispute involving a child born in New York City immediately prior to or during the Revolutionary War.

If prior to the Declaration of Independence, he was clearly a British subject born under the British rule of jus soli (and hence unable to inherit property in the United States). If born while British troops occupied New York City, he was likewise most probably born a British subject (although that depended on whether his parents had voluntarily chosen to remain British subjects). Even if he had been born in New York City after Independence and before the occupation, when New York City was part of the declared independent United States, Story wrote that “his infancy incapacitated him from making any election [as to whether to become an American or to remain a British subject], and his election and character followed that of his father.” The British rule of jus soli, which Sotomayor claims Story adopted, would have made the father’s status irrelevant, but it was not.

Joseph Story further elaborated on his views in his treatise, one of the most authoritative treatises on constitutional law ever written. He wrote that “[p]ersons who are born in a country are generally deemed citizens and subjects of that country” (emphasis added), but he added that a “reasonable qualification of the rule would seem to be, that it should not apply to the children of parents, who were in itinere [traveling] in the country, or who were abiding there for temporary purposes, as for health, or curiosity, or occasional business.”

The exclusion of temporary visitors from the rule of automatic citizenship at birth is the same exclusion that was implied in the question from Senator Cowan to Senator Conness in the debates over the adoption of the Citizenship Clause three decades later, and it is the same exclusion reflected by the “temporary visitors” component of President Trump’s Executive Order.

In short, the dissenting justices have tried to preempt an ultimate decision on the merits by ignoring the significant body of evidence that fully supports President Trump’s executive order. But refusing to acknowledge that evidence does not make it go away. One hopes that the lower courts or, eventually, the other justices at the Supreme Court, will give it the serious consideration it is due.