Did any of the other Justices notice Justice Kavanaugh’s contention that the whole dispute could have been resolved on statutory grounds?
Ilya Somin has already explored much of the Trump v. Barbara terrain in a recent post on the VC, and I share his view, including his concise conclusion: “The six-to-three determination was correct, and a ruling to the contrary would have produced terrible consequences.”
Assuming the case framework is familiar to you. If not: The Citizenship Clause of the 14th Amendment declares that anyone who is born in the United States and subject to its jurisdiction is a citizen. The dispute turns on the meaning of those five emphasized words: “subject to the jurisdiction thereof.” President Trump’s Executive Order (#14160) holds that individuals born here whose mothers are present in the United States unlawfully are not citizens. He argues that this does not violate the Citizenship Clause because those individuals are not “subject to the jurisdiction of the United States” in the sense of that phrase—at least, in the sense it had in 1868 when the Clause was added to the Constitution.
The plaintiffs, unsurprisingly, disagree, as does a majority of the Court.
Having now worked through the six different opinions,
*Roberts for the Court, Jackson concurring, Thomas dissenting, Alito dissenting, Gorsuch dissenting, Kavanaugh concurring in the result and partially dissenting. The entire set is available here.
a number of observations struck me as highly unusual and noteworthy.
In particular, Justice Kavanaugh’s separate opinion – agreeing (in Part I) with the Court’s judgment that the Executive Order 14160 is invalid, disagreeing (Part II) with the rationale for that invalidity – is a remarkably engaging piece of judicial work, deserving close attention.
Justice Kavanaugh votes to invalidate the Executive Order on the ground that it “contravenes a federal statute.” Which statute, you may ask? The Immigration and Nationality Act, 8 U.S.C. §1401(a), which “mirrors the text of the Fourteenth Amendment,” provides that “All persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Up to the moment I read Justice Kavanaugh’s analysis, I hadn’t realized there was a statutory claim at stake in this case in addition to the widely discussed constitutional question. And yet there it is.
As many of you know, the Court follows a rule—more precisely, a prudential practice—of avoiding constitutional questions in cases that can be resolved on statutory grounds. Kavanaugh argues that this is precisely what we should do here. Individuals born to mothers who are illegal residents here are subject to the jurisdiction of the United States, at least in the sense used in the statute. The Executive Order therefore conflicts with that statutory directive, and the case ends there. The constitutional question—whether individuals born to such mothers are “subject to the jurisdiction of the United States” within the meaning of the Citizenship Clause—poses a separate issue that the Court need not, and should not, address.
He explains how the Executive Order contravenes the statute as follows:
- In 1898, in the case US v Wong Kim Ark, 169 U.S. 649, the Supreme Court interpreted the phrase “subject to the jurisdiction of” as it appeared in the Citizenship Clause of the 14th Amendment. The Court held that the Clause established the fundamental rule of citizenship by birth recognized at common law, excluding only a narrow set of people typically described as being exempt from the country’s jurisdiction—such as children of foreign monarchs or their ministers, children born on foreign military vessels, or individuals in the midst of an enemy occupation, and children of members of certain Indian tribes. All others born in the United States were citizens at birth.
- The Immigration and Nationality Act (8 U.S.C. 1401) was first enacted in 1940 and has undergone several amendments since then.
- There is a presumption that Congress was aware of our authoritative interpretation of “subject to the jurisdiction thereof” in Wong Kim Ark when it drafted the statute.
- Congress’ use of the identical five-word phrase in the statute can be read as Congress incorporating the Court’s interpretation of that phrase into statutory text.
- And if that is what “subject to the jurisdiction of” means in the statute, then Executive Order 14160 directly conflicts with it and must be invalidated.
Nice!
It’s a clean and elegant line, at least as it appears to me; Kavanaugh characterizes the statutory analysis as “straightforward,” and I share that sense. It yields the correct outcome—the Executive Order is invalidated. The complicated constitutional question is left for a future case in which the Court must resolve it to resolve the dispute before it.
And what makes Kavanaugh’s interpretive move even more striking is that he also believes Wong Kim Ark was wrongly decided and should be overturned![1]
Thus, his position amounts to applying an (arguably incorrect) reading of the constitutional text to the statute because congressional intent serves as the touchstone for interpreting federal statutes, and Congress used our (allegedly flawed) construction of the phrase when enacting the statute, without ever revising it since.
To my knowledge, there isn’t another case presenting this kind of inverted reasoning. It serves as a vivid illustration that the same words can have one meaning in the 14th Amendment and a different meaning in a federal statute. Context and history matter. Pinning down the statutory meaning requires discerning Congress’s understanding of the term in 1940, not the public’s understanding of the term in 1868. Wong Kim Ark’s interpretation of the constitutional phrase—whether right or wrong—was presumably the meaning Congress intended when drafting the 1940 statute. Congress intended these words to align with what we had (arguably wrongly) said the Constitution meant.
And here’s perhaps the most unusual facet of all: not a single one of the other five opinions engages with Kavanaugh’s proposed resolution of the case. They either ignore the statute entirely or treat it as irrelevant to the plaintiffs’ claim, offering only a few passing references.
Nobody responds to Kavanaugh’s point, or explains, even in a brief footnote, where Kavanaugh goes wrong, and why they are choosing to analyze the case solely through a constitutional lens.
I find that to be quite peculiar.
And since the Court does not explain its choice to disregard the statute, we are left to speculate. My hunch is that the other Justices are embarrassed by their own conspicuously eager focus on the constitutional issue and are hoping that, by ignoring Kavanaugh, no one will notice what they are doing. [Other thoughts? Please share them in the Comments below]
[1] Justice Kavanaugh (and, by extension, the entire Court) could have stopped there. The matter can be resolved entirely on statutory grounds. Case closed.
Yet he does not stop there—though he does show some deference to the Court’s decision to address the constitutional issue, if only indirectly—and he offers something of an apology for extending the discussion beyond the statutory question:
As the Court’s opinion demonstrates with a detailed account of history and precedent—and as the weighty dissents show—the constitutional issue is far more intricate than the statutory one. After considering those scholarly works, one thing seems clear: The constitutional issue is not straightforward, no matter how much we might wish it were. That is another reason, in my respectful view, why the Court should have resolved this dispute on the narrow and straightforward statutory ground.
In any case, because the Court engages with the Constitution, and because I respectfully disagree with its analysis of that consequential issue, I too will briefly address it.
In Part II of his opinion, he aligns with the dissenters (Thomas, Alito, Gorsuch) in arguing that the constitutional clause does not mean what the Court held in Wong Kim Ark—that is, that the Citizenship Clause grants U.S. citizenship to all individuals born here, except for the very narrow exceptions. I plan to comment on that portion of the Barbara opinions in a separate blog post.
[2] Roberts’ opinion for the Court references it only once, in the opening paragraph, merely noting that the statute uses the same language as the 14th Amendment. You can search the opinions for “1401” yourself to verify my claim that all other mentions are merely cursory.
