Pluralist Modalities in Originalist Clothing: Thoughts on Arguments in Trump v. Barbara

James Fox 

Like most observers I listened to the oral arguments in Trump v. Barbara for signals about the possible vote alignment in the challenge to President Trump’s Executive Order declaring that birthright citizenship under the fourteenth amendment no longer applies to children whose parents are in the United States without authorization or long-term domicile. I left the argument thinking about how this quintessential originalist dispute in fact revealed the justices shifting around in a sea of rhetorical modalities, and how the scant efforts to attend to all the modalities inhibits argument and analysis.

As the case has been presented in the briefing, in the lower courts, and in much of the legal social mediasphere, it is almost entirely an originalism debate. The opponents of Trump’s Executive Order have a lot of text and ratifying history on their side, the leading precedent is largely originalist in character, the main supporters of the EO have developed long-winded originalist arguments on the fly and themselves are getting strong pushback for that effort by fellow conservative originalists as well as liberal scholars.

The oral arguments reflected a lot of this, of course. But I also thought they revealed important ways in which all the modalities (here thinking primarily of Philip Bobbitt’s modalities but not limited to them) were lurking in the background. Here are some thoughts on that reaction to the argument, with a focus mainly on the justices’ questions.

 Chief Justice Roberts: “It’s a new world [but] it’s the same constitution”

For the government Solicitor General John Sauer argued that the modern experience with unauthorized immigration reveals the necessity of interpreting the text to exclude children of undocumented parents from citizenship. Roberts shot it down with the above originalist-style quip.

But Roberts is not an originalist. Indeed, this quip borders on hilarity from the author of Shelby County v. Holder’s equal state sovereignty principle, which he used to override a congressional power that itself has deep originalist roots, to say nothing of the muscular presidential immunity he crafted in Trump v. United States, which exists nowhere is either text or contemporaneous historical meanings.

At bottom this is Roberts being a pluralist. Here the originalist ideal of a “fixed” constitution does the work he appears to want.  Roberts is artful in his pluralism, able to craft phrases to capture a point that distracts from questions of whether there is interpretive coherence in his jurisprudence. I suspect he also here is poking at Alito, who appeared to fully support Sauer’s evolving principles argument. 

Justice Alito’s Living Constitutionalism

Alito presented a transparently living constitutionalist defense of the government’s position.  Alito tossed Sauer a lifeline by making one of originalism’s common arguments to address the problem of text across time. The basic idea is that originalism always allows adaptation to new technologies, e.g. applying the fourth amendment to GPS signals or applying the second amendment to handguns (Alito actually used the less helpful analogy of theft statutes applying to microwaves). Alito tried to shoehorn into this evolving technologies idea some kind of “evolving laws” concept whereby the fact that federal law has changed over time to create new categories of approved and prohibited migration, or that the migration patterns themselves have changed, somehow analogizes to advances in technology. And while there may be intellectual value in seeing law as a technology, that’s not at all Alito’s point. Obviously this move gives away the game of originalism, since Alito is really saying that evolving social and political norms should carry strong interpretive weight as against historical and textual evidence. This is precisely what Alito and the Court rejected in New York State Rifle & Pistol Association v. Bruen where it mandated an absurdly low level of generality when considering legal and social changes to gun regulation over time (changes that themselves were tracking the very technological changes to firearms the Court so blithely accepts).

Ultimately, the evolving textual application Alito is going for here is just living constitutionalism done poorly (because not done openly). Similarly, Alito later hypothesized some version of a sleeper-cell, scary-alien enemy: would a child of an Iranian national be a birth citizen if he also had an obligation to serve in the Iranian military?  Again, not originalism but instead an odd kind of prudential bogyman argument. Notably he made no effort to distinguish interpretation and construction or fence off construction zones to do any of this work. 

Justice Kavanaugh and Section Five

Kavanaugh explicitly asked Sauer to comment on congressional powers under Section Five of the fourteenth amendment, and directed advocates to the 1952/1940 statute where congress, in detailing a broader range of paths to citizenship, parrots the fourteenth amendment’s birth citizenship clause. Before arguments I thought some justices might take this route to avoid the constitutional question and hold that the EO was beyond the president’s power under this statute, which, given its history, pretty clearly adopted the broad reading of birthright citizenship. But the way this played out I suspect the move instead may be to open a path for congressional power under Section Five to define the exceptions encompassed by the “subject to the jurisdiction” proviso.  This potentially connects Kavanaugh’s line of questioning with Justice Barrett’s. Any development of this more structural path would require significant engagement with this Court’s anemic view of congress’ Section Five power and with how it overlaps with the congressional powers over naturalization, so I am not sure how enthusiastic Kavanaugh was about this. But he was clearly thinking about it. 

Justice Barrett & the Exceptions

Barrett seemed very interested in trying to extract a principle from the three exceptions to birthright citizenship evident in the drafting history and in United States v. Wong Kim Ark: children of diplomats, children born in territory under foreign occupation, and children of Native Americans under tribal jurisdiction.  But why? When dealing with exceptions one need not find rules for them – the pertinent principles are derived from the main rule (here, citizenship by birthright) and exceptions can just be that – isolated exceptions (or as Roberts said, “quirky” and “idiosyncratic”).  You only really need a sub-principle connecting the exceptions if you want to open the possibility of applying the subprinciple to other situations, that is, if you want to make new exceptions. Perhaps she is thinking only of explaining why the administration’s proposed exceptions – children born to parents who are not legally present or are temporarily present – fail. But this would be a cumbersome way to say the government’s applications don’t fit long-established exceptions. When combined with her questions about congressional powers and with Kavanaugh’s similar questions, this may suggest a path to a holding that leaves open some room for congressional expansion and contraction of the exceptions under some unifying theory.

Justice Gorsuch: I am the expert on Indian law here, folks

Sauer absolutely had to know that since the exclusion of members of Native American tribes was one of the three recognized bases for the “subject to the jurisdiction” proviso, Gorsuch would have thoughts. He has repeatedly shown himself to be, at least in his own mind, the expert about and champion of Indian law on the Court. Yet when Gorsuch asked Sauer if his domiciliary theory of how the exceptions to birth citizenship can change over time meant that all Native Americans born within the international borders of the United States are citizens under the fourteenth amendment (as opposed to merely the 1924 statute), Sauer said he had not thought about the question.  Bad advocacy prep aside, what was Gorsuch’s point? Was it to show that Sauer’s theory of exception expansion makes no sense as original meaning? Or was it instead to suggest that congress exercised its Section Five power in the 1924 Act by contracting the exceptions, which might also mean congress has the power to expand them as well?  Or was Gorsuch hinting that the doctrinal history of Native exclusion Sauer relied on no longer holds? Gorsuch pressed this point with Cecillia Wang for the ACLU, who said the fourteenth amendment was best seen as a constitutional floor for citizenship that congress can expand.  I was not sure whether Gorsuch bought the floor idea or not. But Gorsuch’s self-conception as the Indian law justice will undoubtedly affect how he sees and analyzes the meaning of the clause and the proviso, likely pulling him away from Thomas’s inclination toward an anti-Dred-Scott-and-nothing-else interpretation.

Justice Thomas: Dred Scott and only Dred Scott

Thomas primed Sauer with a softball about Dred Scott, and said almost nothing else after that, so it is difficult to know where he stood. Perhaps his question was merely a way to help Sauer make an obvious point that the citizenship clause was significantly, if not primarily, about undoing Taney’s holding that Black people can never be United States citizens. And maybe Thomas did not realize Sauer would run so far with that ball as to cite the Mississippi Slave Code in support of his argument, thus apparently finding a way to side with the confederacy even while rejecting Dred Scott.  Ultimately Sauer’s argument – echoed in Trump’s claims – is that the Black citizenship purpose of the clause also limits the reach of the clause beyond that purpose. Thomas seemed inclined to this later when he asked a question expressing doubt that the framing of the amendment had anything to do with immigration.

This is fundamentally a reactionary view of the amendment, one which holds that it served only to secure basic rights for newly freed and free Black Americans and cannot be used to do anything else, a view wrapped in a slavery-only view of the Reconstruction amendments generally.  Thomas could easily lean into that view given his “Let him alone” misreading of Frederick Douglass. But he could also be persuaded by a somewhat broader view connected to at least some of the conservative originalists critics of the EO such as Keith Whittington and Michael Ramsey. It is hard to see him being willing to recognize citizenship protections for children of parents not lawfully present, but he also did not show an inclination toward Alito’s free-ranging originalism-only-in-name approach either. Thomas has shown no hesitancy in adopting questionable historical readings of the fourteenth amendment framing period, and I see no reason to think he won’t do so here.

Thomas also prompted Sauer to the argument that somehow the word reside – which comes at the end of the Citizenship Clause and refers to how someone who is a United States citizen by birth under the first part of the sentence also establishes their parallel but subordinate citizenship in a state.  Sauer pumped this up into an argument that “subject to the jurisdiction” inherently includes some long-term proof of residence and therefore domicile (a word appearing precisely nowhere in the text). Such a reading is grammatically and semantically bizarro. Perhaps Thomas is flirting with it, but I would be surprised to see it appear even in a dissenting opinion.  Sometimes textualist arguments are too tortured to even be tried. 

Liberal Wing – Don’t muddy the waters you drink from

My sense of how Justices Jackson, Kagan, and Sotomayor approached their questioning was they had a sense that enough of their colleagues supported the ACLU challenge that it was best not to stir things up too much. 

Jackson was all over Sauer’s claim that congress can set forth new exceptions – and in fact did so when it made immigration illegal for large groups of people starting in the 1870s and 1880s. I think she was the most bothered by the prospect of some sort of Section Five power to rewrite “subject to the jurisdiction” to basically swallow the “born . . . in” rule.  She reacted firmly against the suggestion that the framers and ratifiers would have meant this language to allow for that radical move.

Jackson also got after Sauer about the pragmatics of the EO. When she said “are we bringing pregnant women in for depositions?” she articulated in striking terms the prudential problems with the EO and the incredibly destabilizing costs it would impose. While Jackson is not at all hesitant to address fourteenth amendment original meanings, she seemed also to have little truck with any of Sauer’s more living constitutionalist gestures. 

Sotomayor presented the most doctrinal questioning, asking about more recent cases that suggest a long-standing assumption by the Court that the exceptions are narrow and the main principle broad (although she oddly stumbled on the timing and perhaps holding of a 19^th century Indian law precedent). It was striking how little this line of analysis arose. Depending on how broadly the Court decides to read Wong Kim Ark, these subsequent cases, along with the traditional practice of the federal government over that time, could foreclose even the slightest crack in the birthright rule proposed by Sauer. I look for this precedential mode to play more of a role in the eventual opinion, especially if authored by Roberts or Kagan.   

Kagan, revealing her own pluralist approach, emphasized with Sauer that several modalities – text, history, traditional practice, precedent – all point against his revisionist theory and so require much more persuasive evidence than he presents. I sensed she was trying to find common rhetorical ground with the Chief here. This also backed Sauer into the corner where he misrepresented a 1921 law review article in a failed effort to say the traditions and practices were not uniform. 

Another place where I thought Kagan was trying to work of a mind with Roberts was where they both pressed Wang on the many references to “domicile” in Wong Kim Ark. This is probably the biggest hurdle in countering Sauer’s argument, and both seemed interested in a good articulation of why domicile is not at the very least a limitation on Wong Kim Ark’s holding, if not itself an essential part of the holding (which Sauer claims). I am not sure they got that answer in oral argument. Justice Jackson stepped in to provide one by saying the Wong Kim Ark Court may have stressed the fact of the parents’ domicile to gain public acceptance of the opinion that was, by its holding, unusually generous toward an often-despised immigrant group. (Kagan and Roberts would do well to read John  Mikhail’s Balkinization post and linked work on the weakness of the domicile argument.) 

I mentioned at the top that I thought all of Bobbitt’s modalities were in play. The only one not really discussed, I think, was ethos, or the ethical social norms modality. It often happens that this “public values” modality operates sub rosa, present but unarticulated.  That seemed true here as well. Because of course the whole thing about the first sentence of the fourteenth amendment is its value-asserting preference for a radical birth equality. That’s what overturning Dred Scott was about. It’s what Reconstruction was about. It’s what the New Birth of Freedom and mass slave liberation was about. And, on the other side, the barely contained reason behind Alito’s dislike of the concept of birth citizenship and Trump’s open political justifications for effectively abandoning it are values-based norms of what it means to be an American, either conceived in a must-be-law-abiding sense or as a part of a darker vision of a Herrenvolk democracy. The problem is we have limited and ever-shrinking paths to articulating those reasons within constitutional law discourse. Yet these reasons are the basis of this conflict politically, and to the extent contested constitutional law is largely political law, they are at the heart here too.  That matters, because when the ACLU wins this case – as they will – an opinion that simply says “the text and history tell us so” speaks very differently than one that says “the text and history express some of our most cherished national values and here they are.”  While an originalist decision could have the potential to also speak in ethos, I fear it won’t, and we will be poorer for that. 

James Fox is a professor of law at Stetson University College of Law. He can be reached at fox@law.stetson.edu