Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark

John Mikhail

When the Supreme Court hears oral argument tomorrow in Trump v. Barbara, Solicitor General John Sauer will try to persuade the Justices that a child is born “subject to the jurisdiction” of the United States only if the child’s parents are domiciled in the United States at the time of its birth.  Relying on this premise, Sauer will argue that President Trump’s January 2025 Executive Order, which effectively restricts birthright citizenship to the children of citizens or lawful permanent residents, is justified by this domicile requirement.

The Justices should not buy this novel argument. As Marty Lederman and I explained in this essay, the Government’s domicile theory is unconvincing and riddled with fallacies. Here I will add two simple observations to that analysis.

First, the Government’s domicile theory has essentially been made up for the purposes of this litigation.  For over 125 years, the American law of birthright citizenship has been settled.  Millions of Americans have been recognized as natural-born citizens without anyone questioning that status on the basis of their parents’ domicile. And throughout this litigation, the Government has not pointed to a single judicial decision during that time frame in which anyone was denied U.S. citizenship on this basis.

The most significant scholarship on the history of American citizenship yields a similar lesson. The Government’s domicile theory plays virtually no role in the leading scholarly treatment of the subject, James Kettner’s The Development of American Citizenship, 1608-1870 (1978). The same is true of Peter Schuck and Rogers Smith’s book, Citizenship Without Consent (1985). The first real glimmers of the Government’s domicile theory, as it has now come to be framed, can be found in two student notes published in 2010 and 2015, respectively.  Yet even those articles did not formulate the theory in the way the Government now does.

Second, the SG’s claim that domicile was “central” to the Court’s landmark decision in United States v. Wong Kim Ark (1898) is an obvious overreach, which cannot be squared with the basic structure and ratio decidendi of that case. To begin with, most of the 22 references to the word “domicile” in Justice Gray’s majority opinion do not, in fact, lend support to the Government’s theory, and many of them directly contradict it.  See, for example, the four uses of that term on pages 656-57 of Gray’s opinion (with respect to Udny v. Udny) and the three uses of the term on page 666 (with respect to the state of European law at the time of the adoption of the U.S. Constitution).

More importantly, none of the seven federal cases (Charming Betsey, Inglis, Shanks, McCreery, Levy, Dred Scott, and Rhodes), four state cases (Gardner, Kilham, Manuel, and Lynch), four executive department opinions (Marcy, Black, and two by Bates), or two commentaries (Kent and Binney) that Justice Gray drew upon in Part III of his opinion (pp. 658-666) to extract the fundamental rule of citizenship that existed before the adoption of the Citizenship Clause in Part IV (pp. 674-675) treated domicile as a necessary condition of birthright citizenship.  Yet the Court in Wong Kim Ark held (pp. 675, 682), and the SG does not dispute, that the Citizenship Clause was designed to incorporate that pre-1866 U.S. rule, and not to deny citizenship to anyone who would have been entitled to it before the Fourteenth Amendment was framed and ratified. As Gray emphasized, the Clause was “not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption” (p. 676). 

On page 34 of its topside brief, the Government quotes from a key paragraph in Wong Kim Ark, in which Gray applied the same fundamental rule to the stipulated facts of the case, including the oft-repeated fact that Wong Kim Ark’s parents were domiciled in the United States at the time of his birth (p. 693; see also pp. 652, 653, 705). But the SG’s brief artfully omits the words that Gray placed at the beginning of that paragraph: “The foregoing considerations and authorities irresistibly lead us to these conclusions.” As indicated, those sources do not connect in any meaningful way with the Government’s domicile theory.  In the sentence immediately following the quoted passage, also missing from the SG’s brief, Gray clarified that the allegiance to which the passage refers is the “temporary and local” allegiance that anyone owes “so long as he remains within our territory.” Furthermore, Gray then confirmed that even non-domiciled aliens are “completely subject to the political jurisdiction” of the United States, drawing upon Daniel Webster’s famous report in Thrasher's Case (p. 693).  Finally, Gray concluded this key paragraph by citing United States v. Carlisle, Calvin’s Case, and specific passages from Hale’s Pleas of the Crown and Blackstone’s Commentaries, none of which lends support to the Government’s domicile theory (pp. 693-94).

In Capital Traction Company v. Hof, 174 US 1, 12 (1899), decided one year after Wong Kim Ark, and also written by Justice Gray, the Court described the ratio decidendi of a case as “the line of thought pervading and controlling the whole opinion.” By that measure, the SG’s contention that domicile was “central” to Wong Kim Ark is a failure. And by that measure, the Executive Order is clearly unconstitutional.