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The United States Court of Appeals for the Ninth Circuit is now in session.

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Please be seated.

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Good afternoon.

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I'm Judge Gould and I'm presenting today

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We only have one case to be argued.

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But before we start argument, I need to mention other cases submitted on the briefs.

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So we have Kunal Kunal, which is versus

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Bondi.

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That's number 2073284.

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And we have Dorsey versus the United States.

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That's number 242800.

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That's submitted.

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And we have United States versus Sims, number 24759, or 75091.

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And that's submitted on briefs.

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And we have United States versus

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versus Hunt, and that's number 241605.

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Oh, 3605.

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Sorry, I have new glasses, and I'm still getting used to them.

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That's submitted on briefs.

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So without further ado, we can get to our case to be argued, which is the state of Washington.

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at all versus Donald J. Trump at all.

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This case is set for 25 minutes per side.

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So if a repellent wants to make rebuttal argument, please try to cease your opening argument a little bit before all your time is

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So upon can please proceed.

[00:02:55] Speaker 01:
Thank you, Judge Gould, and may it please the court, Eric MacArthur for the government, and I would like to reserve three minutes for rebuttal.

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In 1868, in the wake of the Civil War, the American people ratified the 14th Amendment to the Constitution.

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All agree that the principal purpose of its citizenship clause was to repudiate Dred Scott and to guarantee citizenship for the freed slaves and their children.

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The question presented here is whether it also extended birthright citizenship as a matter of constitutional right to the children of transient visitors and illegal aliens, a class that did not even exist at the time.

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Text, history, and precedent confirm that it did not.

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On the contrary, the framers of the 14th Amendment expressly rejected a proposal to make birth in the United States the sole criterion of birthright citizenship.

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Instead, they adopted the jurisdictional clause to limit birthright citizenship to those owing primary allegiance to the United States.

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Where did that come from?

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Where did the jurisdictional clause come from?

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You said they adopted it.

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Where did it come from?

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It was the language that had been proposed by Congress to replace the language that existed before in the law, which was the Civil Rights Act of 1866.

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It uses a little different language, doesn't it?

[00:04:20] Speaker 01:
It does use slightly different language, but the framers of the 14th Amendment were quite clear that they intended the language in the 14th Amendment, subject to the jurisdiction thereof, to achieve the same object as the language in the Civil Rights Act, which was... The Civil Rights Act says not subject to any foreign power, excluding Indians not taxed.

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Yet the amendment says subject simply, subject to the jurisdiction thereof.

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That is correct.

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And what do we know about the reason for choosing the simpler language?

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So I think it had to do with the omission of the Indians not taxed exclusion from the Civil Rights Act.

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The framers of the 14th Amendment became concerned that that language might be misconstrued.

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They had intended it to be a constitutional term of art to refer to Indians who were not part of the apportionment base because they hadn't integrated into American society.

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But they were concerned that that language would be read literally to adopt a property test.

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And so they excluded that language.

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And then if you had taken just the language of the Civil Rights Act without that language excluded, I think there would have been an ambiguity as to whether they were making the children of Native Americans birthright citizens, which all agreed they did not intend to do.

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And we know this because of statements by members of Congress.

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How do we know this?

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So there's a whole debate that unfolds on the language of the 14th Amendment.

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As it was proposed, it did not have that language from the Civil Rights Act excluding the Indians.

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And there was an amendment proposed to add it back in to the language of the 14th Amendment because some

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of the members were concerned that the language subject to the jurisdiction thereof could pick up the children of the Native Americans because the Native Americans were subject to U.S.

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law.

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Congress has plenary authority to regulate the Native Americans.

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So they voiced that concern and the proponents of the 14th Amendment, chief among them

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Lyman Trumbull, whose name you might hear me say more than once today, he was probably the most significant player in all of this.

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This is the abolitionist senator from the state of Illinois who was the chair of the Senate Judiciary Committee in the Civil War and Reconstruction, had a significant hand in the Civil Rights Act, 13th Amendment, 14th Amendment.

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They explained to these people who wanted to, the members who wanted to put in the express exclusion for Indians back into the

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14th Amendment that that would be confusing and unnecessary because the language subject to the jurisdiction thereof already excluded the Native Americans because they owed allegiance to their tribes.

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That is what Senator Lyman Trumbull said expressly when asked about the meaning of subject to the jurisdiction thereof.

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He said... Did Senator Trumbull talk about children of foreign ambassadors?

[00:07:13] Speaker 01:
He may have at one point, I think that was during the debate on the Civil Rights Act, he spoke about the children of four ambassadors, but he made a number of actually very illuminating comments about what they were trying to achieve.

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It's pretty well assumed at the time of the adoption of both, wasn't it, that the birthright citizenship or citizenship did not extend to the children of ambassadors, correct?

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That is correct.

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Why didn't they put that in?

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because that same language subject to the jurisdiction thereof already excluded them in the same way it excluded Native Americans because they owed allegiance to a separate sovereign.

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You started off by saying that illegal aliens didn't exist as a class at the time of the ratification of the 14th Amendment.

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How was illegal immigration conceived of at that time?

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I would say that it wasn't conceived of at that time because the first restrictive federal immigration laws weren't enacted until the mid-1870s after the 14th Amendment had already been ratified in 1868.

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So any foreigner that entered the U.S.

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territory would have been considered a legal migrant?

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They would have been lawfully present, that's correct.

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And our fundamental submission, because there was a category of temporarily present aliens at the time of the 14th Amendment, and our fundamental submission is that for their children to be birthright citizens under the 14th Amendment,

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to come within that subject to the jurisdiction clause, their parents had to be domiciled in the United States.

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Council, if I could ask you a question on that.

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I'm looking at the language of the citizenship clause.

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I don't see any language in there textually that says they have to be domiciled.

[00:09:05] Speaker 01:
That's correct.

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There isn't a reference to domicile.

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The logic of the argument is step number one is that subject to the jurisdiction thereof means subject to the complete political jurisdiction of the United States, not simply the regulatory jurisdiction where you have a duty to obey US law as the district court held.

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Then step number two of the argument is that in order for foreigners who are coming from abroad,

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to become subject to the complete political jurisdiction of the United States, they have to be domiciled here.

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Could today an illegal immigrant facing criminal charges contest the jurisdiction of our government?

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Not jurisdiction to impose criminal liability, because everyone who's present in the United States has a duty to obey U.S.

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law.

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Can you slice a difference between

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What, regulatory jurisdiction and criminal jurisdiction?

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Explain that to us.

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No, the distinction isn't between regulatory and criminal.

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It's between regulatory and what the Supreme Court has called political jurisdiction.

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And I think regulatory jurisdiction is properly thought of as included within a subset of political jurisdiction, but political jurisdiction goes beyond that.

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It's the most encompassing form of jurisdiction.

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that a nation can have over an individual, where you not only have the duty to obey U.S.

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law while you are present in the country, but it's the sort of jurisdiction that can get you convicted of treason if you leave the country and go abroad and take up arms against the United States in a foreign theater of war.

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It's the sort of jurisdiction that if you are in trouble in a foreign nation, the United States will intervene diplomatically on your behalf to protect you.

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And this is not a concept that we have made up.

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This has been in the Supreme Court's case law from the very beginning.

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So in Elk versus Wilkins in 1884, the very first decision construing the scope of the Citizenship Clause, the court said,

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The quote unquote evident meaning of the jurisdictional clause is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance.

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So part of your understanding of the government's understanding, if you will, of this concept of political jurisdiction is protection from

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foreign powers, correct?

[00:11:39] Speaker 01:
That is part of it, correct.

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It's a mutual relationship of allegiance on the part of the individual and protection on the part of the government.

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And that was also in Wong Kim Ark, by the way.

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15 years after Elk versus Wilkins, the court said that the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, doesn't stop there,

[00:12:01] Speaker 01:
in the allegiance and under the protection of the country.

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Every justice in both the majority and the dissent in both Elk and Wong Kim Ark agreed that to be subject to the jurisdiction of the U.S.

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within the meaning of the jurisdictional clause, there has to be this reciprocal relationship of allegiance and protection.

[00:12:22] Speaker 04:
Let me ask you this.

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An individual who applies for asylum and is granted asylum by the government, is that person entitled to protection from the government they're fleeing?

[00:12:37] Speaker 01:
I suppose in a sense they are entitled to protection from the government they're fleeing, but the executive order hasn't been implemented yet.

[00:12:46] Speaker 01:
One of the problems with the injunction is that it enjoined the government from even explaining how this order would be implemented, and so how the executive order, if and when it's allowed to take effect, would apply to various categories like asylees, like refugees, is not clear at this point.

[00:13:05] Speaker 02:
Do you get to the more unique interpretation of jurisdiction based off of the well-crafted exceptions?

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How do we know that it's that unique political jurisdiction versus the more common municipal jurisdiction concept?

[00:13:23] Speaker 01:
Well, we know for one because the framers of the Fourteenth Amendment told us so.

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Again, Lyman Trumbull said, what do we mean by subject to the jurisdiction of the United States not owing allegiance to anybody else?

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That is what it means.

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These were not private debates like happened at the original Constitutional Convention.

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These were congressional debates that were widely publicized in the nation's leading newspapers.

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And this is taken from those very debates where

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Wasn't there also debates about the Chinese and gypsies?

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I think that's from the 1866 Civil Rights Act.

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So how do we deal with that?

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There was also a debate around that for the 14th Amendment.

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I actually think that those excerpts from the debates support our position.

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So this was Senator Cowen.

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who was concerned about making birthright citizens of the children of Chinese immigrants and the people that he called gypsies.

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He wanted to draw a racial distinction between them and immigrants from Europe.

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And in trying to persuade his colleagues who were skeptical of that position, he appealed to a common premise.

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He said, have they any more rights here than temporary sojourners?

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Proponents of the 14th Amendment rightly rejected his racial distinction.

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They did not reject.

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In fact, they shared that common premise, that the children of temporary sojourners, people who came from abroad and were not domiciled here but were only visiting the United States temporarily, their children were not birthright citizens.

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Multiple members of Congress, during the debates on both the Civil Rights Act and the 14th Amendment,

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expressed that view, and I'm not aware of anyone in the debates who contradicted it.

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And that was also consistent, by the way, with Justice Dorey's very influential commentaries on the conflict of laws dating back to 1834 in which he had said the same thing, that the English rule as it applied in America was subject to this qualification that

[00:15:18] Speaker 01:
the children of temporary visitors from abroad were not citizens because they still owed allegiance to the countries from which they came.

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Council, if I could interject a question.

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I think you urged that you felt Wong Kim Ark was consistent with the government's interpretation.

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Can you give me a page site to the part of that opinion that you think

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supports you.

[00:15:49] Speaker 01:
I can.

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The key pages of the opinion in Wong Kim Ark are pages 693 to 694.

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And I think you need to think of this opinion in two parts.

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I'm sure you've read it.

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It's a very long opinion.

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Everything before page 693, I put in the category of historical exposition.

[00:16:09] Speaker 01:
There's a long tracing of the law of citizenship, beginning with the common law of England, progressing through American antebellum law, the Civil Rights Act, the 14th Amendment,

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the court's prior decision and ELK long survey.

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Then there's a key pivot point in this opinion right at the top of page 693.

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The court says the foregoing considerations and authorities irresistibly lead us to these conclusions and everything on that page and the next page

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is couched in terms of aliens who are domiciled here.

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So here's the key, what I take to be the holding of the case.

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The court says, the amendment, in clear words and manifest intent, includes the children born within the territory of the United States, of all other persons, other here is except for the ones that had previously been recognized as exempt, of whatever race or color domiciled within the United States.

[00:17:04] Speaker 01:
The next sentence provides the explanation for that, tying it to the language of the 14th Amendment.

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It says, every citizen or subject of another country, while domiciled here, is within the allegiance and the protection and consequently subject to the jurisdiction of the United States.

[00:17:21] Speaker 01:
Then you turn over to the next page, page 694, and again, tying it to the language

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of the 14th Amendment, the court says that Chinese persons are entitled to the protection of and owe allegiance to the United States so long as they are permitted by the United States to reside here.

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So I think it's crystal clear that whatever observations the court had made about the historical development of citizenship law, when it came time for them to tell us what they thought of all of that and what it meant for American law after the 14th Amendment,

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They couched everything in terms of aliens who are domiciled here.

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At a minimum, that means they're holding sweeps no farther than that, which makes sense because the parents in that case were domiciled in the United States.

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The court did not have before it any question about aliens who were temporarily present or unlawfully present.

[00:18:17] Speaker 02:
The court would, however, have been... Is your argument then essentially that at the adoption of the 14th Amendment, we've rejected at least some parts of the English common law?

[00:18:25] Speaker 01:
Yes, both the majority and the dissent in Wong Kim Ark recognized that the common law rule in England was that children of non-domiciled parents, someone who was in England just temporarily, if they had a child

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During their temporary sojourn in England, that child was a British subject from birth and had a lifelong unbreakable allegiance to the Crown.

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And it's very clear, for example, that American law has repudiated the inalienable allegiance part of that.

[00:19:00] Speaker 01:
That was repudiated by the Declaration of Independence and ultimately by the Patriots at Yorktown.

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when we absolved our allegiance from the British Crown.

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It was also formally repudiated in law at the very same time that the 14th Amendment was being ratified.

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Congress enacted the Expatriation Act of 1868, declaring that British doctrine of allegiance to be inconsistent with American ideals.

[00:19:28] Speaker 01:
Sorry, Judge Hawkins.

[00:19:29] Speaker 04:
I apologize for interrupting you.

[00:19:32] Speaker 04:
If domicile, as you argue, is required for full and complete jurisdiction, why was the concept of domicile not discussed during the ratification debates?

[00:19:45] Speaker 01:
I think it was discussed.

[00:19:46] Speaker 01:
It was discussed under the rubric of are the children of temporary sojourners going to be given birthright citizenship by the Civil Rights Act and the 14th Amendment?

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And Lyman Trumbull, again, the key player here,

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wrote a letter to President Andrew Johnson explaining what they were doing in the Civil Rights Act and in that letter he said, we are making birthright citizens of the children born to all persons domiciled within the United States with the exception of the Indians.

[00:20:19] Speaker 02:
Can I ask, what should we do given the procedural posture with the Supreme Court?

[00:20:26] Speaker 01:
The merits of this case aren't before the Supreme Court.

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The only issue before the Supreme Court concerns the scope of the injunction.

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And so I suppose if I were in your shoes, I probably wouldn't put pen to paper on that part of the analysis for a few weeks, because I do think we will have some significant additional guidance from the Supreme Court about how to think about the nationwide piece of this.

[00:20:47] Speaker 01:
But the merits weren't briefed before the Supreme Court.

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I don't expect the Supreme Court to weigh in on that.

[00:20:54] Speaker 02:
Do you expect them to weigh in on the state standing issue?

[00:20:56] Speaker 01:
They may, because that is part of the scope of the injunction.

[00:20:59] Speaker 01:
My recollection is that our papers in the Supreme Court did not, we preserved the Article 3 point, but did not brief that there.

[00:21:07] Speaker 01:
We did brief the point about how they don't have standing to assert the individual citizenship rights of their residents.

[00:21:14] Speaker 02:
So if the Supreme Court comes back and gives us a new formulation of how we should consider a universal injunction, wouldn't our proper response be to vacate the injunction and send it back to the district court?

[00:21:26] Speaker 01:
I suppose that will depend on the sort of guidance that you get from the Supreme Court.

[00:21:32] Speaker 01:
If, for example, the Supreme Court says either as a matter of Article 3 or as a matter of equity, a court can't enter an injunction that sweeps beyond what's necessary to provide complete relief to the parties before the court.

[00:21:45] Speaker 01:
I suppose the court could itself apply that to tell us how that applies to this situation.

[00:21:49] Speaker 01:
If not, it may remand with directions either for the court of appeals or for the district court in the first instance to figure that out.

[00:21:59] Speaker 02:
I think you want to reserve some time.

[00:22:01] Speaker 04:
I have one last question for you.

[00:22:02] Speaker 04:
Yes, Judge Hawkins.

[00:22:03] Speaker 04:
And forgive me if this appears to be a bit unfair, but I'd be interested in your perspective on this.

[00:22:09] Speaker 04:
You clerked at the U.S.

[00:22:10] Speaker 04:
Supreme Court, correct?

[00:22:12] Speaker 01:
I did a number of years ago.

[00:22:13] Speaker 04:
And when you were clerking was Justice Scalia still on the court?

[00:22:18] Speaker 01:
He was.

[00:22:19] Speaker 04:
What do you think he would say about looking beyond the mere words of the amendment?

[00:22:25] Speaker 01:
I think Justice Scalia would be very open to looking at all of the historical evidence that tells us how those words were understood at the time.

[00:22:35] Speaker 01:
And as I said before, these were not private debates.

[00:22:39] Speaker 01:
They were very public debates about what is the meaning of subject to the jurisdiction.

[00:22:45] Speaker 01:
And I do think that debate over the Indian exclusion is actually quite extraordinary because everyone agreed

[00:22:53] Speaker 01:
We're not trying to make citizens out of the Native Americans.

[00:22:57] Speaker 01:
And the question was, does the language that we have chosen, is it adequate to exclude them?

[00:23:03] Speaker 01:
And so you had a whole debate about what does subject to the jurisdiction thereof mean.

[00:23:09] Speaker 01:
And the answer from the proponents of the 14th Amendment was that would not make citizens of the Native Americans because they owe allegiance

[00:23:17] Speaker 01:
to their tribes.

[00:23:18] Speaker 04:
Justice Scalia viewed the Constitution in terms of interpretation as a statute, and he was widely critical of looking at congressional history and statements of senators opposing or supporting a particular thing, and famously said just the words.

[00:23:41] Speaker 01:
I don't dispute that Justice Scalia was very skeptical of reliance on legislative history.

[00:23:46] Speaker 01:
I think he took a different approach when you were looking at trying to understand how were these words understood at the time.

[00:23:54] Speaker 01:
And there's really little better source for that than looking at the explanation given by the people who were explaining to each other and to the American public

[00:24:04] Speaker 01:
what these words mean in this context.

[00:24:07] Speaker 05:
Council, do we look at the ordinary meaning of the words?

[00:24:13] Speaker 01:
I do think you look at the ordinary meaning of the words and our understanding of political jurisdiction is well within the ordinary meaning of the word jurisdiction.

[00:24:22] Speaker 01:
The key point here that you need to understand is that jurisdiction, just like allegiance, comes in degrees.

[00:24:28] Speaker 01:
There can be a lesser form of jurisdiction

[00:24:29] Speaker 01:
for example, that the United States has over people who are temporarily present here, where they just have the duty to obey U.S.

[00:24:36] Speaker 01:
law while they are here.

[00:24:38] Speaker 01:
What the framers explained and what the Supreme Court explained is in the 14th Amendment, we are not looking at that lesser form of jurisdiction.

[00:24:46] Speaker 01:
We're looking at the higher, more encompassing form of jurisdiction that is the same type of jurisdiction in quality and extent that applies to U.S.

[00:24:55] Speaker 01:
citizens.

[00:24:56] Speaker 05:
State Council, I have a further question.

[00:25:00] Speaker 05:
Are there any dictionaries from the period when the amendment, 14th Amendment, was adopted that defined jurisdiction in terms of allegiance?

[00:25:17] Speaker 01:
I'm not aware of a dictionary definition that spoke to allegiance and protection.

[00:25:22] Speaker 01:
But I do think that at this point, the Supreme Court has already told us that that's what jurisdiction means in the context of the Citizenship Clause.

[00:25:37] Speaker 01:
Yes.

[00:25:37] Speaker 01:
Thank you for your argument.

[00:25:39] Speaker 01:
Perfect job.

[00:25:40] Speaker 05:
Council, we've taken up some of Appell's time with questions.

[00:25:47] Speaker 05:
So if you need a further minute or two, we'll give it to you.

[00:25:52] Speaker 05:
Go ahead.

[00:25:53] Speaker 05:
We'll hear from Appellee.

[00:25:57] Speaker ?:
Thank you.

[00:25:58] Speaker 00:
You may please the court.

[00:25:59] Speaker 00:
I'm Washington Solicitor General Noah Gazo Purcell on behalf of the states of Washington, Oregon, Arizona, and Illinois.

[00:26:05] Speaker 00:
Our Supreme Court has described American citizenship as a most precious right.

[00:26:10] Speaker 00:
And for generations, that precious right has been granted to virtually every baby born in this country, as required by the text and original understanding of the 14th Amendment and longstanding Supreme Court precedent.

[00:26:21] Speaker 00:
But in the executive order that the states challenge here, President Trump seeks to turn citizenship into a political football, denying that precious right to hundreds of thousands of babies born in this country simply because their parents are here to work, to study, or to escape persecution or violence.

[00:26:36] Speaker 00:
The executive order is unconstitutional and un-American, and this court should uphold the district court's preliminary injunction in full.

[00:26:43] Speaker 00:
I'd like to start today by talking about the merits and then the scope of the injunction, but first I want to emphasize just how extraordinarily radical the Trump administration's position is in this case.

[00:26:52] Speaker 00:
Since the U.S.

[00:26:53] Speaker 00:
Supreme Court decided Wong Kim Ark over 125 years ago, it has been the settled understanding of Congress, the executive branch, and the courts that citizenship is granted to babies born in this country regardless of their parents' immigration status.

[00:27:06] Speaker 00:
The Trump administration's position is that for that entire time, everyone was wrong.

[00:27:10] Speaker 00:
And if you accept that view, it would also mean that millions of babies born during that time who got the benefit of birthright citizenship never actually should have been treated as citizens.

[00:27:19] Speaker 00:
They never should have been allowed to serve on juries, to vote, to hold various government jobs or receive government benefits.

[00:27:25] Speaker 00:
They could have been deported.

[00:27:27] Speaker 00:
And that would include millions of Americans alive today who have always thought that they were citizens.

[00:27:31] Speaker 00:
There is no basis to accept that extraordinarily radical position.

[00:27:34] Speaker 00:
And we would ask this court to emphatically reject it.

[00:27:37] Speaker 04:
Your friend on the other side relies in part on the concept of domicile.

[00:27:44] Speaker 04:
You heard his argument.

[00:27:45] Speaker 04:
I did.

[00:27:47] Speaker 04:
Does Wonka Mark refer to domicile or use the word?

[00:27:52] Speaker 00:
It certainly does in describing the facts of that case, Your Honor.

[00:27:54] Speaker 00:
But the holding of the case did not turn in any way on domicile.

[00:27:57] Speaker 00:
The court surveyed the whole history

[00:27:59] Speaker 00:
of the English common law, of the practice in the early colonies, and explained what the 14th Amendment was meant to mean.

[00:28:06] Speaker 00:
And what the court explained was that it was meant to exclude only those very limited categories described in the opinion.

[00:28:12] Speaker 04:
It uses the word the opinion.

[00:28:14] Speaker 04:
Yes.

[00:28:15] Speaker 04:
Uses the word domicile, by my count, 22 times.

[00:28:21] Speaker 00:
Fair enough, Your Honor.

[00:28:22] Speaker 00:
I would say the other side's argument in this case is kind of akin to, if you think about after the US Supreme Court decided Heller,

[00:28:28] Speaker 00:
if the federal government had said, okay, Heller has been issued, but now we are going to ban all rifles because Heller only dealt with handguns.

[00:28:35] Speaker 00:
It's factually accurate that Heller only dealt with handguns, but that argument would completely ignore the reasoning of the opinion.

[00:28:40] Speaker 00:
And the same is true here.

[00:28:42] Speaker 00:
Wong Kim Ark was not based on domicile.

[00:28:44] Speaker 00:
It looked at the history of these terms and their original understanding, the meaning, and said, here's what the text means.

[00:28:50] Speaker 00:
And they said, and I would quote you from page 682 of the opinion,

[00:28:54] Speaker 00:
The real object of the 14th Amendment, and using the phrase subject to the jurisdiction thereof, was to exclude by the fewest and fittest words possible the children of Indian tribes and the two classes of cases, the children of invading armies and the children of diplomats, to exclude only those cases that have been recognized exceptions to the fundamental rule of citizenship.

[00:29:14] Speaker 00:
And so that was the holding.

[00:29:15] Speaker 00:
And that's also, it's very clear, Your Honor, how the U.S.

[00:29:17] Speaker 00:
Supreme Court has understood its own holding in Wong Kim Ark.

[00:29:20] Speaker 00:
If you look at subsequent cases, there are at least a dozen, cited on page 34 of our brief, that treat it as a settled question that children born in this country become citizens regardless of their parents' immigration status.

[00:29:31] Speaker 00:
And I direct you to two in particular, the Erico case.

[00:29:34] Speaker 00:
In that case, people came into this country illegally, had children while they were here, and then argued that they could not be deported because they had U.S.

[00:29:43] Speaker 00:
citizen children.

[00:29:45] Speaker 00:
They argued that under the statutes at the time, and the U.S.

[00:29:47] Speaker 00:
Supreme Court agreed with them.

[00:29:48] Speaker 00:
So obviously, the citizenship of their children was hugely important, and the court treated it as settled that they must be citizens.

[00:29:54] Speaker 00:
I'd also direct the court to Plyler v. Doe.

[00:29:57] Speaker 00:
In that case, while the court splintered on many things, it was unanimous in rejecting an argument almost identical to what the federal government is arguing here.

[00:30:04] Speaker 00:
In that case, Texas argued

[00:30:06] Speaker 00:
that undocumented immigrants were not subject to the jurisdiction of the United States, and therefore not protected by the 14th Amendment.

[00:30:12] Speaker 00:
And all nine justices rejected that argument, while splintering on many other topics.

[00:30:16] Speaker 04:
So is the parents involved in Wong Kim Ark allegiance to their home country?

[00:30:23] Speaker 00:
Absolutely, Your Honor.

[00:30:24] Speaker 00:
They were citizens of China.

[00:30:25] Speaker 00:
And the court made that clear.

[00:30:26] Speaker 00:
The other problem, among the many problems with the administration's argument here, is that Wong Kim Ark would have had to come out the other way under their theory.

[00:30:33] Speaker 00:
Because their theory is that,

[00:30:34] Speaker 00:
someone can only become

[00:30:52] Speaker 00:
The court emphasized that in the opinion, and they could never become citizens of the United States.

[00:30:55] Speaker 02:
Sure, but the Supreme Court said that they are resident, permanent domicile in the United States, correct?

[00:31:01] Speaker 00:
Well, that's true, Your Honor, but so are countless people, I would emphasize, who are excluded from citizenship under the executive order.

[00:31:08] Speaker 00:
That's a different question, right.

[00:31:09] Speaker 00:
The investigation argument is absolutely internally inconsistent.

[00:31:13] Speaker 00:
The only requirements of domicile.

[00:31:14] Speaker 02:
I guess you would, would you agree that wonking arm is limited to its, its holding is limited to children of aliens that are permanently domiciled in the United States?

[00:31:23] Speaker 00:
No, your honor.

[00:31:23] Speaker 00:
I would not agree with that because that is not how the court reached its conclusion.

[00:31:26] Speaker 00:
And that is not how the Supreme court has understood it ever since then.

[00:31:29] Speaker 00:
In many, many cases, the court has cited wonky mark for the principle that any child born in this country, except for those very limited categories is becomes a citizen.

[00:31:38] Speaker 00:
And that has been a central part of the holdings of subsequent cases.

[00:31:41] Speaker 00:
So I think it's too late in the day to argue now.

[00:31:43] Speaker 00:
I mean, if the administration wanted to come in and argue that Wong K. Mark was wrongly decided, that would be one thing.

[00:31:48] Speaker 00:
But that's not their argument, as I understand.

[00:31:50] Speaker 00:
They're arguing that it should be understood to mean that it only covers parents who are domiciled here.

[00:31:57] Speaker 00:
And that is not part of the holding of the opinion, and that is not how the US Supreme Court has understood it.

[00:32:02] Speaker 00:
And again, under their own allegiance theory, Wong K. Mark's parents could never become citizens here.

[00:32:08] Speaker 00:
And so it does not track on the reasoning of the opinion or on the executive order.

[00:32:14] Speaker 02:
Because it does refer to resident aliens, birth of children to resident aliens, right?

[00:32:20] Speaker 00:
Well, Your Honor, again, it talks in many places about the fact pattern in that case.

[00:32:24] Speaker 02:
But that was in the holdings section.

[00:32:26] Speaker 02:
Wouldn't you agree that that was part of the holding?

[00:32:28] Speaker 00:
Well, Your Honor, it's a very long opinion, as my friend on the other side said.

[00:32:31] Speaker 00:
I would say that the court

[00:32:33] Speaker 00:
said very clearly, multiple times, that the overarching goal of the 14th Amendment was to incorporate the exceptions that had been part of the common law understanding and the prior practice in the United States.

[00:32:45] Speaker 00:
And that's why, Your Honor, I want to emphasize that the distinction that the other side is attempting to draw about Indian tribes is just a total red herring, because Wong Kim Ark actually addressed in detail Elk v. Wilkins.

[00:32:55] Speaker 00:
It was the same justice who wrote both opinions.

[00:32:58] Speaker 00:
And Justice Gray explained in Wong Kim Ark that

[00:33:00] Speaker 00:
The holding of elk said nothing about the status of immigrant parents, because at the time of the 14th Amendment, Congress did not understand Indian tribes to be generally subject to the jurisdiction of the United States.

[00:33:09] Speaker 02:
Could you describe that exception?

[00:33:11] Speaker 02:
That's the one that I have a hard time wrapping my head around.

[00:33:13] Speaker 02:
So a native Indian who was born in the United States, lived off a reservation, lived in a reservation, for example, but moved to Seattle and had a child, that child would not be a citizen, correct?

[00:33:26] Speaker 00:
Well, today's statutorily, they would be.

[00:33:28] Speaker 02:
But under the Constitution would not be.

[00:33:30] Speaker 00:
That's what the court held in Elkview.

[00:33:32] Speaker 02:
But someone that comes from France, comes to Seattle the day before, then has a child, that child would be a citizen.

[00:33:38] Speaker 00:
Yes, Your Honor, and the court explained that in Wong Kim Ark.

[00:33:40] Speaker 02:
That's hard to wrap my head around.

[00:33:41] Speaker 02:
The Indians whose family lived entirely in the United States for an entire life, they have less rights than a visitor from another country who's been here for a day.

[00:33:52] Speaker 00:
Well, two points, Your Honor.

[00:33:53] Speaker 00:
First of all, again, Wong Kim Ark expressed the address of that point in detail and explained

[00:33:58] Speaker 00:
that the reason for that is because at the time of the framing of the 14th Amendment, Indian tribes were meaningfully different from foreign visitors.

[00:34:06] Speaker 00:
So Indian tribes were not subject to general laws passed by Congress.

[00:34:08] Speaker 00:
They were not subject to general state laws.

[00:34:10] Speaker 00:
They were not subject to state taxes.

[00:34:11] Speaker 02:
It's because they were quasi-sovereigns, correct?

[00:34:14] Speaker 02:
So why shouldn't we consider Indian tribes as foreign nations?

[00:34:20] Speaker 00:
Well, I think, I think, Juan Camarque resolves that, your honor.

[00:34:22] Speaker 00:
Juan Camarque looked at Elk v. Wilkins and said, Elk v. Wilkins dealt with the unique status of Indian tribes which are separate sovereigns within the United States.

[00:34:28] Speaker 00:
And it said, look, there's all these differences between Indian tribes and foreigners.

[00:34:32] Speaker 00:
Foreigners, when they come to this country, are subject to general laws.

[00:34:34] Speaker 00:
They're subject to state laws.

[00:34:35] Speaker 00:
They're subject to state taxes.

[00:34:37] Speaker 00:
Under the common law understanding, they were citizens.

[00:34:39] Speaker 00:
None of that is true about Indian tribes.

[00:34:41] Speaker 02:
So Indian tribes are not subject to any municipal laws?

[00:34:44] Speaker 00:
Well, it varied from place to place, and the practice was very different.

[00:34:47] Speaker 00:
But they were not subject to general laws passed by Congress.

[00:34:49] Speaker 00:
And the court emphasized that in Wong Kim Ark.

[00:34:51] Speaker 00:
The law had to specifically reference the tribe.

[00:34:54] Speaker 00:
Most tribes were dealt with by treaties or specific laws that called them out.

[00:34:58] Speaker 00:
And in Wong Kim Ark, they go through this in some detail of how, after adoption of the 14th Amendment, citizenship was granted to specific tribes and tribal members by treaty.

[00:35:07] Speaker 00:
And so it was clear in Alfie Wilkins that played a huge role.

[00:35:10] Speaker 02:
So they could be subject to complete jurisdiction.

[00:35:12] Speaker 02:
It's just whether or not Congress decided to exercise it or not.

[00:35:15] Speaker 00:
When Congress enacted the 14th Amendment, they did not intend to make Indian tribal members citizens of the United States.

[00:35:22] Speaker 00:
And it's clear that they did intend for the law to be what had been under the common law, that parents born immigrants became citizens.

[00:35:30] Speaker 02:
How were they not subject to complete jurisdiction, Indian tribes?

[00:35:32] Speaker 02:
How were they not subject to complete jurisdiction of the United States?

[00:35:35] Speaker 00:
In all the ways I just said, Your Honor, they had not been treated as citizens under the common law or under the original Constitution.

[00:35:40] Speaker 00:
They were not subject to general laws passed by Congress.

[00:35:42] Speaker 00:
They were not subject to general state laws.

[00:35:44] Speaker 02:
But Congress had the authority to pass those laws, correct?

[00:35:46] Speaker 00:
Congress could have done that and did that often by treaty.

[00:35:49] Speaker 00:
But that's a different question, Your Honor, than whether they actually were understood by the framers of the 14th Amendment to be subject to the jurisdiction of the United States.

[00:35:55] Speaker 04:
They were viewed at the time, the tribes were viewed at the time, however we may look back

[00:36:00] Speaker 04:
on this view as being conquered nations, correct?

[00:36:05] Speaker 00:
I want to be clear, Your Honor, I'm not in any way endorsing how the Framers thought about Indian tribes.

[00:36:09] Speaker 00:
No, no, no.

[00:36:11] Speaker 04:
We're all looking back more than a hundred years ago to what went on, but the sort of looming question is why are Native Americans sort of outside the penumper of our looking at this question?

[00:36:25] Speaker 00:
Well, and again, in the lengthy, lengthy opinion of Wong Kim Ark, it talks about the varied status of Indian tribes.

[00:36:30] Speaker 00:
And I would direct also the court to recent opinions by Justice Gorsuch describing the status of Indian tribes at the time of the adoption of the 14th Amendment.

[00:36:38] Speaker 00:
It was a widely varied practice.

[00:36:40] Speaker 00:
Some were in open hostilities with the United States.

[00:36:42] Speaker 00:
Some had trees with the United States.

[00:36:44] Speaker 00:
But again, I would say,

[00:36:45] Speaker 00:
This court doesn't need to grapple with all that because the court already did in Wong Kae Mark.

[00:36:48] Speaker 00:
The court looked at Elk v. Wilkins, the exact same justice, and said, look, that's a unique situation.

[00:36:53] Speaker 00:
Indian tribes are separate sovereigns within the territory of the United States.

[00:36:57] Speaker 04:
What about gypsies?

[00:36:58] Speaker 00:
Well, I think that point just emphasized, Your Honor, that the framers understood that the citizenship clause would extend citizenship to people, to immigrants, to the United States, and that that was the understanding based on the common law and the prior practice.

[00:37:12] Speaker 00:
Your Honor, I want to make sure to address any other questions the court has specific to the states, because in a couple of minutes I'm going to turn things over to my colleague for the private party.

[00:37:22] Speaker 00:
So I just want to make sure that I don't, if the court has any questions specific to the state standing or anything along those lines.

[00:37:28] Speaker 05:
I have a question that might be pertinent to all the plaintiffs, and that is,

[00:37:37] Speaker 05:
If the government's position is accepted, would that mean that if a mother of a child did not meet the government's current definition, that the child, even if they lived in the United States,

[00:38:01] Speaker 05:
You know, for 40 years thereafter, paying taxes, working, making a life here, that they could be deported now.

[00:38:15] Speaker 00:
That's exactly right, Your Honor.

[00:38:16] Speaker 00:
I think it highlights, not only is their argument a historical, it leads to this absurd situation where citizenship, birthright citizenship would turn on the subjective.

[00:38:25] Speaker 04:
Doesn't the executive order have a 30-day kick-in?

[00:38:29] Speaker 00:
Yes.

[00:38:31] Speaker 04:
And that's suspended as we speak here today.

[00:38:34] Speaker 00:
That's correct.

[00:38:34] Speaker 00:
But if you accept the interpretation in the executive order, it would mean that that's what the Constitution always meant.

[00:38:40] Speaker 00:
So it would also have retroactive consequences.

[00:38:42] Speaker 00:
And I think it's important to understand how subjective the federal government's test is.

[00:38:46] Speaker 00:
You would have to question the parents of every newborn in this country.

[00:38:50] Speaker 00:
Do you intend to stay here?

[00:38:52] Speaker 00:
What is your allegiance?

[00:38:53] Speaker 00:
For example, I don't understand how their theory squares with dual citizens.

[00:38:56] Speaker 00:
their children here becoming citizens when they also have allegiance to another country and might have more... Doesn't that just show the injunction is premature?

[00:39:02] Speaker 02:
We don't know how the government's going to implement any of this because it was a facial challenge from day one.

[00:39:06] Speaker 02:
No, it does not, Your Honor, because Wong Kim Ark very clearly forecloses the federal government's interpretation that his entire basis of... Well, you're just saying how unworkable it is, but we don't know how unworkable it is because they were not given a chance to implement it.

[00:39:19] Speaker 00:
I respectfully disagree, Your Honor.

[00:39:21] Speaker 00:
The entire basis of the order is to exclude from citizenship huge categories of people who are guaranteed citizenship under the Constitution.

[00:39:28] Speaker 02:
Can you address the whole complete relief issue?

[00:39:29] Speaker 02:
Why is a nationwide injunction or universal injunction necessary to complete relief to the states?

[00:39:35] Speaker 00:
Absolutely, Your Honor.

[00:39:36] Speaker 00:
So there's three problems with the government's argument on this issue.

[00:39:38] Speaker 00:
The first is that they never presented this argument for a narrower form of relief, anything remotely specific to the district court.

[00:39:44] Speaker 00:
So the district court never had a chance to address it.

[00:39:46] Speaker 02:
The district court never considered it either.

[00:39:48] Speaker 00:
Well, there was no alternative put forward by the federal government about how to – and that's including between when the time the TRO was issued and the preliminary injunction was issued, when there was time for the federal government to formulate – Should we send it back to the district court for the district court to consider this, then?

[00:40:02] Speaker 00:
No, Your Honor, because it's not – this court's precedent is clear.

[00:40:03] Speaker 00:
It's not error for the district court to not consider an argument that was never before.

[00:40:07] Speaker 00:
Second, I would say the harms to the states that will flow from a piecemeal rule are the same harms that will flow from the rule itself.

[00:40:16] Speaker 00:
babies will

[00:40:36] Speaker 00:
Yes.

[00:40:37] Speaker 02:
You're saying that when a non-citizen comes into your state, you will treat that person as a United States citizen?

[00:40:43] Speaker 00:
Well, the Constitution treats them as a U.S.

[00:40:45] Speaker 00:
citizen.

[00:40:45] Speaker 00:
The court would be holding that we're right about the law.

[00:40:48] Speaker 00:
It just would be limiting its relief.

[00:40:49] Speaker 00:
And so that child who should be treated as a U.S.

[00:40:51] Speaker 00:
citizen, who is a U.S.

[00:40:52] Speaker 00:
citizen, would not be able to participate in programs that they should be entitled to participate in.

[00:40:57] Speaker 00:
unless we rework our whole system.

[00:40:59] Speaker 02:
You would agree an injunction that requires the federal government to treat that person who's come out of your state into your state as a U.S.

[00:41:04] Speaker 02:
citizen would give you complete relief?

[00:41:07] Speaker 00:
No, because there's no way for them to do that without us having to rework our systems to check whether, you know... Again, we don't know because the government was never given a chance to implement any of this.

[00:41:17] Speaker 00:
Well, if the government has not explained in any meaningful way how it would work for a child who's born, say, in Coeur d'Alene, moves into Spokane,

[00:41:24] Speaker 00:
would have no social security number when they arrive, we would have no way to check whether they were properly... They were enjoined from even implementing procedures on how to figure this out, correct?

[00:41:33] Speaker 00:
They're not enjoined, Your Honor, I think they wildly exaggerate the scope of the injunction.

[00:41:36] Speaker 00:
They're not enjoined from thinking internally and discussing internally how they would implement this.

[00:41:40] Speaker 00:
They're enjoined from external steps to implement the order.

[00:41:44] Speaker 00:
And that's entirely reasonable.

[00:41:45] Speaker 02:
So if they were able to figure out a way that any non-citizen that comes into your state that should be deemed a United States citizen will be treated as a United States citizen by the federal government with no cost to the states, then you would agree you would get complete relief.

[00:42:02] Speaker 00:
If they could figure out a way to do that with no cost to the states,

[00:42:05] Speaker 00:
I think they would have a plausible claim that the injunction should be limited.

[00:42:08] Speaker 00:
They have not presented anything remotely like that.

[00:42:09] Speaker 00:
If they want to move to modify the injunction in the district court, they can always do that.

[00:42:14] Speaker 00:
Your Honor, I want to make sure to leave time for my co-counsel.

[00:42:17] Speaker 00:
We would ask, the states would ask, that you affirm the district court's injunction in full.

[00:42:22] Speaker 04:
Real quick, what is your client's position on whether we should wait for the Supreme Court?

[00:42:28] Speaker 00:
It's similar to what the federal government answered, Your Honor.

[00:42:30] Speaker 04:
All I'm asking for is you should wait or you shouldn't.

[00:42:33] Speaker 00:
We think it's very reasonable to wait for the scope of the injunction issue.

[00:42:37] Speaker 00:
We agree that the court should start as soon as possible on the merits, because the Supreme Court made very clear that it would like to reach the merits of this issue as soon as possible.

[00:42:45] Speaker 00:
And so we would urge the court to begin writing that portion of the opinion now.

[00:42:48] Speaker 00:
Thank you.

[00:42:48] Speaker 00:
All right.

[00:42:49] Speaker 00:
Thank you, Your Honors.

[00:42:58] Speaker 03:
Good morning.

[00:42:59] Speaker 03:
May it please the court?

[00:43:00] Speaker 03:
Matt Adams with Northwest Immigrant Rights Project on behalf of individual plaintiffs in the proposed class.

[00:43:05] Speaker 03:
Now Plaintiff Appellee Sherily Norales gave birth to her child at a nearby hospital in Burien, Washington just a week after the purported effective date of the executive order.

[00:43:15] Speaker 03:
The district court had ample authority to ensure that this child was not stripped of her citizenship and accordingly deprived of pathways to health care, education,

[00:43:27] Speaker 03:
and unlawfully subjected to immigration enforcement.

[00:43:31] Speaker 03:
The 14th Amendment... So the case is moot as to that plaintiff?

[00:43:34] Speaker 03:
Absolutely not.

[00:43:35] Speaker 03:
That plaintiff is dependent upon the ultimate holding of the court... Isn't that child now a United States citizen?

[00:43:42] Speaker 03:
If the court reaches a final judgment on this, all we have is a preliminary injunction saying that we're likely to prevail on the merits.

[00:43:49] Speaker 02:
Well, the executive order is prospectively applied, right?

[00:43:51] Speaker 02:
It doesn't have any retroactive relief.

[00:43:53] Speaker 02:
So that child is now a United States citizen.

[00:43:56] Speaker 02:
And it can't be taken away that I'm aware of.

[00:44:00] Speaker 03:
The executive order purports to suspend portions of its enforcement with respect to certain agencies till 30 days after its order.

[00:44:11] Speaker 04:
That's really a pretty straightforward question, counsel.

[00:44:15] Speaker 04:
As you read the executive order, is it or is it not retroactive?

[00:44:22] Speaker 03:
It is not retroactive in some aspects of it, but I'd make two points on this.

[00:44:30] Speaker 03:
One, defendants are not challenging the standing of her plaintiff.

[00:44:33] Speaker 03:
Two, this is also a plaintiff as a- The standing is, we have to sue respond to consider something, obviously.

[00:44:38] Speaker 03:
Yes, but this plaintiff is also a representative for a proposed class, and this court's case law amply supports her continued standing on- Well, then under Rule 23, she's no longer a representative plaintiff.

[00:44:52] Speaker 03:
Under a pitch, she continues to, this court's case law makes clear that she continues to qualify as it goes back to the time of filing the complaint.

[00:45:02] Speaker 03:
That she is entitled to represent the class.

[00:45:05] Speaker 03:
Mootness doesn't apply to class actions?

[00:45:08] Speaker 03:
Mootness as to the individual, but not to the class claim.

[00:45:11] Speaker 03:
Right.

[00:45:13] Speaker 03:
More importantly, this case begins and ends with the court's decision in Wong Kim Ark.

[00:45:19] Speaker 03:
Wong Kim Ark definitively held that subject to the jurisdiction applies to all persons born in this country, even those who are born to parents who are foreigners who are about temporarily here, and that they are subject to its laws,

[00:45:36] Speaker 03:
Subject to its jurisdiction and accordingly Entitled to citizenship now the that's the same question.

[00:45:43] Speaker 04:
I've asked before then why does the opinion one come are?

[00:45:48] Speaker 03:
mentioned domicile 22 times I Would turn to the language of the opinion itself Council earlier pointed to

[00:45:57] Speaker 03:
693 of the pages, the seminal discussion on domicile, but then omitted the very next sentence which clarifies that it in fact is addressing even those who are here temporarily.

[00:46:13] Speaker 03:
And if I just may finish reading the quote that he started, every citizen or subject of another country while domiciled here is within the allegiance and the protection and consequently subject to the jurisdiction of the United States.

[00:46:27] Speaker 03:
but then it continues.

[00:46:29] Speaker 03:
His allegiance to the United States is direct and an immediate, and although about local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke Calvin's case, strong enough to make a natural subject, for if he hath issue, that issue is a natural born subject.

[00:46:51] Speaker 03:
It goes on to say, he is much a citizen as the natural born child of a citizen.

[00:46:57] Speaker 03:
And the other point where Defendants' Council was asked, so is it your contention that English common law is not applicable?

[00:47:05] Speaker 03:
He asserted, yes, English common law is not applicable.

[00:47:09] Speaker 03:
Notably, that is the same position of the dissent in Wong Kim Ark.

[00:47:14] Speaker 03:
These were the same arguments that were presented and were already rejected.

[00:47:18] Speaker 02:
I don't think they're saying a wholesale rejection of English common law.

[00:47:21] Speaker 02:
There are facets that were clearly rejected, correct?

[00:47:24] Speaker 02:
Wouldn't you agree?

[00:47:25] Speaker 03:
I would, but the point of allegiance.

[00:47:30] Speaker 02:
So the question is not whether or not it was wholesale rejected.

[00:47:33] Speaker 02:
The question is, was it modified by the adoption of the 14th Amendment in some respect?

[00:47:37] Speaker 03:
The question, as I see it, is whether the dissent's approach, which said that the English common law's doctrine, accepting Juseli, is, in fact, the law of the land.

[00:47:51] Speaker 03:
The dissent said, no, that shouldn't be accepted.

[00:47:53] Speaker 03:
But the majority rejected that and said, yes, Juseli is enshrined as the governing principle in the Constitution.

[00:48:02] Speaker 02:
You know, a little further along in Wankenhar, it then says something to the fact that they are entitled to protection and allegiance to the United States so long as they are permitted by the United States to reside here.

[00:48:15] Speaker 03:
That's correct.

[00:48:16] Speaker 03:
It's recognizing, in fact, the fragile status of those individuals who are here.

[00:48:21] Speaker 03:
At the time of Wong Kim Ark, there had been a series of exclusion and deportation provisions.

[00:48:27] Speaker 02:
So doesn't that suggest that the permission of the federal government is necessary for this birthright citizenship?

[00:48:33] Speaker 03:
No, I think it only states until the point that they are permitted to be here.

[00:48:38] Speaker 03:
Once they are removed, obviously they are no longer within the country's jurisdiction.

[00:48:43] Speaker 03:
But for those individuals who are here, regardless of their status, they are subject to its laws.

[00:48:50] Speaker 03:
They are obligated to follow the law and they are entitled to its protection.

[00:48:54] Speaker 03:
And that was the definitive holding of... So long as they're permitted.

[00:48:57] Speaker 02:
So we should just excise that part out.

[00:48:59] Speaker 03:
So long as they're permitted.

[00:49:01] Speaker 03:
by the United States to reside here.

[00:49:03] Speaker 03:
Well, doesn't this suggest permission is also needed on the front end?

[00:49:11] Speaker 03:
I would say, no, I would say that once someone's in this country, they're subject to its jurisdiction.

[00:49:16] Speaker 03:
They're obligated to comply with its laws, and they're subject to the punishment when they don't comply.

[00:49:21] Speaker 03:
And that's both civil and criminal.

[00:49:23] Speaker 03:
Every individual, whether they're here temporarily or permanently, is subject to its jurisdiction.

[00:49:28] Speaker 03:
The court listed the exclusive exceptions, none of which apply.

[00:49:34] Speaker 02:
And of course, it was- But I guess the problem is that everyone agrees that the concept of illegal immigration was not conceded of at the time, correct?

[00:49:41] Speaker 03:
I don't agree with that.

[00:49:43] Speaker 02:
You mentioned in your brief the importation of slaves, right?

[00:49:47] Speaker 03:
And you can also go back to the Naturalization Act of 1790, which precluded citizenship by naturalization for any person who was not, quote, a free white person.

[00:49:59] Speaker 03:
And so as of 1790, you already had this underclass of immigrants who were forever barred from becoming US citizens.

[00:50:08] Speaker 03:
And that was at the very forefront of the debate when they were looking at this amendment.

[00:50:14] Speaker 02:
Sorry, just to the illegally imported slave point, is there any case that says that they are definitely children, their children have birthright citizenship?

[00:50:26] Speaker 03:
I don't know off the top of my head, but going back to the point that at the time that this was debated, it was very much at the forefront in the senator's mind about whether these children of foreigners that some senators esteemed

[00:50:43] Speaker 03:
or rather believed were not worthy to citizenship would receive the benefit because of the language.

[00:50:50] Speaker 03:
Senator Cowen, the most vocal or one of the most vocal opponents to it, opposed the amendment precisely because he understood it to encompass the children of foreigners, including the Chinese immigrants or the Roma, which he referred to as gypsies.

[00:51:07] Speaker 03:
Not only that, at the time of Wong Kim Ark, again, you had a series of immigration acts that had been passed, starting with the Asian Exclusion Act, the Chinese Exclusion Act, the McCreary Act.

[00:51:21] Speaker 03:
All of these, again, excluding subject to deportation certain categories of people.

[00:51:26] Speaker 03:
There's no basis then for the government to say that Wong Kim Ark simply didn't anticipate this idea

[00:51:33] Speaker 03:
of foreigners that had no lawful right to be in this country, because the law is at time when Juan Kimar pronounced its decision, made clear that every child born here, regardless of the length of their parents' stay, was entitled to citizenship.

[00:51:50] Speaker 05:
Council, the red light there means your time has expired, though it's prep.

[00:51:56] Speaker 05:
It's permissible and desirable to answer fully any question the court has.

[00:52:05] Speaker 05:
So I don't want to cut you off in mid-sentence, but could you bring your argument to a close, please?

[00:52:13] Speaker 03:
We believe the text of the statute, the subsequent case law, as well as the history of the 14th Amendment, make abundantly clear there is no room for the president now to attempt to redefine citizenship and that this court should affirm the preliminary injunction that was issued by the district court.

[00:52:33] Speaker 05:
Thank you, Council.

[00:52:38] Speaker 05:
You had two minutes left, but again, we used a lot of your time, and if you need an extra minute or two, I'll add that to your clock.

[00:52:52] Speaker 05:
However, let me ask you first off, could you address the question that I asked the State's Council?

[00:53:01] Speaker 05:
And that is if there's a mother of a child who doesn't meet the government's definition, but their child has lived here for decades, they'll build a life here, bought a home, maybe this and that, had a job, paid taxes, is it the government's position that the government could exercise discretion?

[00:53:32] Speaker 05:
to remove them from the U.S.

[00:53:35] Speaker 01:
Under the terms of the executive order, no, because the executive order applies only to children who are born 30 days after the issuance of the executive order.

[00:53:45] Speaker 01:
It is prospective only.

[00:53:48] Speaker 01:
I did want to quickly respond to Mr. Purcell's argument on the scope of the injunction before I turn back to the merits.

[00:53:54] Speaker 01:
He made the argument that an injunction limited to the plaintiff states would be inadequate to completely redress their injuries.

[00:54:01] Speaker 01:
I think that is wrong.

[00:54:02] Speaker 01:
Of course, you don't think there are proper plaintiffs here to begin with, but even setting that aside, an injunction that applied to individuals who are either born or reside in the plaintiff states would fully cure their injuries.

[00:54:16] Speaker 01:
Mr. Purcell said, well, what about

[00:54:17] Speaker 01:
a child born in another state who doesn't receive a social security number and then moves, for example, to the state of Washington.

[00:54:24] Speaker 04:
So what should Judge Kunar have done?

[00:54:28] Speaker 04:
Limited his injunction to the Western District of Washington?

[00:54:31] Speaker 04:
To the Ninth Circuit?

[00:54:33] Speaker 01:
Assuming, on our view, the injunction should have been limited just to the individual plaintiffs because the states aren't proper parties.

[00:54:40] Speaker 01:
But if you assume that they are proper parties, the inquiry should have been what is necessary to provide full redress to the states, and that could have been done by an injunction that applies to individuals who are either born or reside.

[00:54:53] Speaker 01:
Mr. Purcell's point about Social Security numbers in other states, number one, that speculative

[00:54:57] Speaker 01:
The EO has never been implemented.

[00:54:59] Speaker 01:
We don't know whether the Social Security Administration will continue to issue Social Security numbers to these children.

[00:55:05] Speaker 01:
But even if it doesn't, if that child moves to the state of Washington and the state of Washington is protected by an injunction, the parents can request a Social Security number for that child.

[00:55:14] Speaker 01:
And because of the injunction, the federal government would be required to issue one.

[00:55:18] Speaker 02:
And most of the other injuries are cost-related, correct?

[00:55:22] Speaker 02:
So they could be redressed after the fact?

[00:55:24] Speaker 01:
Absolutely.

[00:55:25] Speaker 01:
They can submit claims for the ordinary administrative processes, and if they're ultimately right about the merits of this, they could

[00:55:32] Speaker 02:
So bottom line, the government's position that an injunction can provide the state's complete relief without ordering a universal injunction.

[00:55:40] Speaker 01:
Absolutely.

[00:55:41] Speaker 01:
An injunction limited to the plaintiff's days.

[00:55:43] Speaker 01:
I did want to address the main theme on the other side, which is that our position is somehow foreclosed by the Supreme Court's decision in Wong Kim Ark.

[00:55:52] Speaker 01:
Not at all.

[00:55:54] Speaker 01:
Wong Kim Ark more nearly adopts our position than it does theirs.

[00:55:58] Speaker 01:
I would be perfectly happy if the court adopted as the rule of law

[00:56:02] Speaker 01:
the passage that I read on page 693 before about aliens who are domiciled here.

[00:56:08] Speaker 01:
Mr. Purcell quoted some parts of Wong Kim Art that are part of that extended historical exposition.

[00:56:16] Speaker 01:
And there's something for everyone there.

[00:56:17] Speaker 01:
The court, for example, cited the New York decision from 1844 saying that domicile was not necessary.

[00:56:24] Speaker 01:
It also cited the New Jersey Supreme Court from 1895 saying that domicile was necessary.

[00:56:30] Speaker 01:
The court did not leave us in doubt about what it made of it all.

[00:56:35] Speaker 01:
It told us right at the top of page 693,

[00:56:38] Speaker 01:
Here are our conclusions and everything on that page, including the sentence that Mr. Adams read, is all about domicile.

[00:56:46] Speaker 05:
Council, I see a red light again, which means your time is officially up.

[00:56:55] Speaker 05:
However, again, we've asked questions of you.

[00:56:59] Speaker 05:
If you need another minute,

[00:57:02] Speaker 05:
or two, I'll give it to you.

[00:57:05] Speaker 05:
But you have to bring your argument to a close.

[00:57:09] Speaker 01:
Thank you, Judge Gold.

[00:57:10] Speaker 01:
I will just make one final point.

[00:57:12] Speaker 01:
I believe our position here was characterized as radical.

[00:57:15] Speaker 01:
Our position here is very firmly grounded in text, history, and precedent.

[00:57:20] Speaker 01:
But I do want to be clear that the 14th Amendment Citizenship Clause sets a floor for birthright citizenship and not a ceiling.

[00:57:29] Speaker 01:
So there's nothing in our position that would prevent Congress, if it saw fit, and on the terms it saw fit, from granting citizenship to the children of foreigners who are in the country temporarily or unlawfully.

[00:57:40] Speaker 01:
Plaintiff's position, by contrast... In the way it did for Native Americans.

[00:57:43] Speaker 01:
That's exactly right.

[00:57:44] Speaker 01:
Plaintiff's position, by contrast, puts us in a constitutional bind.

[00:57:48] Speaker 01:
It compels us to grant citizenship to people who have no meaningful connection or allegiance to this country, like the children of birth tourists, and it forces our immigration law to be at war with itself, prohibiting illegal immigration with one hand while inducing and rewarding it with the other.

[00:58:06] Speaker 01:
The Constitution does not require those perverse results.

[00:58:09] Speaker 01:
Thank you.

[00:58:10] Speaker 05:
Thank you, counsel.

[00:58:13] Speaker 05:
This case shall now be submitted.

[00:58:17] Speaker 05:
But I want to thank counsel on both sides of this case for their excellent advocacy.

[00:58:25] Speaker 05:
And we appreciate it.

[00:58:27] Speaker 05:
You've given us a lot to think about.

[00:58:30] Speaker 05:
And the parties will hear from us in due course.