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Speaker 1: And so after the Civil War, the Fourteenth Amendment was

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Speaker 1: enacted principally to undo dred Scott, meaning that enslaved people

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Speaker 1: their children are citizens and will forever more be citizens.

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Speaker 1: In fact, what the Fourteenth Amendment says is that anyone

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Speaker 1: born in this country or naturalized and subject to the

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Speaker 1: jurisdiction thereof are US citizens. And so the debate now

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Speaker 1: is what does that phrase mean subject to the jurisdiction

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Speaker 1: of There's an eighteen ninety eight Supreme Court case Wan

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Speaker 1: kim Ark that seems to answer the question. The President

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Speaker 1: and his team took another swing at it. And so

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Speaker 1: to answer your question, why is this before the Supreme Court,

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Speaker 1: it's because the President issued an executive order on his

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Speaker 1: first day in his second term trying to undo what

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Speaker 1: we think is the common understanding of the fourteenth Amendment.

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Speaker 2: And that's the problem I have with Donald Trump, because

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Speaker 2: he doesn't give a damn about that. He doesn't care

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Speaker 2: about that, because he won to get his way, and

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Speaker 2: he wants to appease a very small sect of Americans

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Speaker 2: who don't like their fellow Americans, and they don't like

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Speaker 2: the people who are coming here because they don't look

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Speaker 2: like them. They don't sound like them, they don't have

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Speaker 2: their hair like them, they don't talk like they don't

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Speaker 2: make the movements that they've defined as Americans. So if

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Speaker 2: nothing else, the Supreme Court tomorrow, from where I see,

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Speaker 2: can settle that piece that you're born here, you're an

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Speaker 2: American citizen, regardless of your parents' status, regardless of your

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Speaker 2: granddaddy's status, regardless of the color of your skin or

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Speaker 2: where you're from. That to me is an important aspect

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Speaker 2: of this. The flip side of that coin is what

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Speaker 2: Donald Trump thinks, and I would love to get your

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Speaker 2: thoughts when you look at those two pieces. Donald Trump

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Speaker 2: thinks that his way to win the argument is to

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Speaker 2: basically crap all over the judges.

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Speaker 3: Sometime this summer, a majority of the justices come back

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Speaker 3: and say, we agree with Donald Trump.

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Speaker 4: How then are you.

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Speaker 3: Able to prove you are a citizen in this country?

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Speaker 3: Because if he gets his way with this, a birth

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Speaker 3: certificate won't be enough. And then I je suppose that

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Speaker 3: with the Save Act, they're saying you need a passport

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Speaker 3: and a birth certificate. How how are people supposed to

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Speaker 3: prove their citizenship in this country? Being born here does

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Speaker 3: not qualify?

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Speaker 1: Right So if your question is, could it be messy

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Speaker 1: if the Supreme Court goes the other way? Yeah, absolutely,

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Speaker 1: And most recently Simone in the tariff's case, without getting

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Speaker 1: into sort of the nuts and bolts of it, the

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Speaker 1: Supreme Court ruled one way but didn't quite explain how

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Speaker 1: the remedy would work. So is this a proactive remedy,

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Speaker 1: meaning only children subsequently born. That's what the executive order

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Speaker 1: seems to posit. Is it a retroactive order meaning it

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Speaker 1: would apply to people already born in this country who

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Speaker 1: we believe are citizens.

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Speaker 5: I doubt it.

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Speaker 1: That seems completely unworkable. But in terms of fashioning a

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Speaker 1: remedy of the Supreme Court rules contrary to our common understanding,

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Speaker 1: You're right it could be messy.

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Speaker 6: It's Wednesday, the first of April, the Riverler twenty twenty six,

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Speaker 6: historic day. We're going to go live to the Supreme Court.

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Speaker 6: The President of the United States, I think, in an

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Speaker 6: unprecedent move, is at the court today.

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Speaker 5: He will listen to the oral arguments. Mike hal Mike

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Speaker 5: Davis will join me.

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Speaker 6: Neil McCabe is there also at six twenty four pm

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Speaker 6: Eastern daylight time today. There's scheduled to be a launch

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Speaker 6: of a live crew of astronauts on a journey to

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Speaker 6: the moon. And then at nine pm tonight, the President

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Speaker 6: will address the nation about his plans on the war

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Speaker 6: in Iran. So a big news day, Real Americer's Voice

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Speaker 6: will be here all day covering it all, including special

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Speaker 6: coverage nine o'clock tonight that'll go to eleven o'clock or

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Speaker 6: midnight as circumstances dictate. Let's go quickly to Neil McCabe

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Speaker 6: at the Neil mccabs outside the Supreme Court. Neil put

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Speaker 6: us in the room.

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Speaker 7: We know the President.

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Speaker 6: Has gotten to the building a few minutes ago.

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Speaker 7: What's going on?

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Speaker 6: By the way, we're gonna go to live coverage of

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Speaker 6: the hearing it back and forth between Mike Call and

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Speaker 6: Mike Davis for assessments. Neil McCabe, what is going on outside?

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Speaker 6: Sounds like a festival.

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Speaker 8: Yeah, it's a carnival like atmosphere here outside the Supreme Court.

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Speaker 8: Steve mostly supporters of birthright citizenship, but there are a

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Speaker 8: few people who are supporting the President's position that it

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Speaker 8: is not soil, but actually your circumstances, your parents and

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Speaker 8: if you are under the jurisdiction of the United States,

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Speaker 8: which is going to be the thrust of John Sowers

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Speaker 8: arguments today. He's the Solicitor General. The line was forming

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Speaker 8: early early this morning for the open seats, and so

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Speaker 8: it's like it's very, very exciting here. Not a lot

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Speaker 8: of not a lot of back and forth. The police

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Speaker 8: haven't had to separate the sides or anything like that

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Speaker 8: because so overwhelmingly for the birthright citizen position they really

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Speaker 8: know how to deliver a crowd state.

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Speaker 6: Oh yeah, of course, Neil, Just hang on for one second,

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Speaker 6: stay right there outside of the Supreme Court, Mike col

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Speaker 6: huge day to day mass deportation coalition, huge story in

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Speaker 6: Politico if we can get that up, and you actually

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Speaker 6: launched your action plan on exquisite timing, coming when the

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Speaker 6: importance of this issue is so vital to this republic

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Speaker 6: that the President United States, in an unprecedented move, goes

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Speaker 6: to hear the oral arguments at the Supreme Court on

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Speaker 6: this historic case around the Fourteenth Amendment and birthright citizenship.

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Speaker 6: Talk to me your thoughts about that in the launch

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Speaker 6: today of the mass deportation Coalition.

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Speaker 9: Yeah, so the birthright citizenship case is absolutely huge. It'll

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Speaker 9: be one of the biggest legal victories I think we

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Speaker 9: have seen and sometimes should it be secured. It's just

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Speaker 9: common sense stuff. Everyone's laughing in America for having appolicy

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Speaker 9: say that, you know, people could just jump the border

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Speaker 9: and have kids and then they're magically citizens, and then

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Speaker 9: it turns into millions and millions in the US doesn't

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Speaker 9: even know how many, and they don't keep track, and

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Speaker 9: we're seeing China abuse it with birth tourism. It is

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Speaker 9: just really suicidal policy. And I applaud President Trump for

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Speaker 9: you know, staying the course and you know, going there

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Speaker 9: today to try to see this one through. So hopefully

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Speaker 9: he gets that victory. But from the Mass Deportation Coalition,

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Speaker 9: our plans today are focused on rolling out this massive

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Speaker 9: playbook we released this morning, which proves.

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Speaker 6: That all Mike, can you hang up, Mike, Mike, Mike,

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Speaker 6: can you hang on for one second? I want to

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Speaker 6: go live. John Sower is actually addressing the court. Just

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Speaker 6: hanger for one second, Mike cow head of the Mass

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Speaker 6: Deportation Coalition, Let's go to live.

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Speaker 7: Supreme Court.

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Speaker 10: When Congress used the term not subject to any foreign

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Speaker 10: power in the Civil Rights Act of eighteen sixty six,

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Speaker 10: it rejected the British conception of allegiance. Senator Trumbull explained

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Speaker 10: that subject to the jurisdiction therev and the clause means

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Speaker 10: not owing allegiance to anybody else. In eighty four, this

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Speaker 10: Court recognize that subject of the jurisdiction means owing direct

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Speaker 10: and immediate allegiance. The clause thus does not extend citizenship

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Speaker 10: to the children of temporary visa holders are illegal aliens.

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Speaker 10: Unlike the newly freed slaves, those visitors lack direct and

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Speaker 10: immediate allegiance to the United States.

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Speaker 4: For aliens, lawful domicile is the status that.

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Speaker 10: Creates the requisite allegiance, and the texts of the clause

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Speaker 10: presupposes domicile for decades following the Claus's adoption, commentators recognize

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Speaker 10: that the children of temporary visitors are not citizens and

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Speaker 10: illegal aliens lack the legal capacity to establish domicile.

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Speaker 4: Here.

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Speaker 10: Unrestricted birthright citizenship contradicts the practice of the overwhelming majority

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Speaker 10: of modern nations. It demeans the priceless and profound gift

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Speaker 10: of American citizenship. It operates as a powerful poll factor

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Speaker 10: for illegal immigration, and rewards illegal aliens who not only

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Speaker 10: violate the immigration law but also jump in front of those.

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Speaker 4: Who follow the rules.

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Speaker 10: It has spawned a sprawling industry of birth tourism, as

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Speaker 10: uncounted thousands of foreigners from potentially hostile nations have flocked

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Speaker 10: to give birth in the United States in recent decades,

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Speaker 10: creating a whole generation of American citizens abroad with no meaningful.

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Speaker 4: Ties to the United States. I welcome the court's.

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Speaker 11: Questions, General Sauer, before we get into the broader national issues.

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Speaker 11: Would you start with dread Scott. Dread Scott was a

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Speaker 11: case about state citizenship. It was a diversity case, and

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Speaker 11: of course we know what Chief Justice Tawny did with that.

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Speaker 11: How does the citizenship clause respond specifically to dread Scott?

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Speaker 11: And answers are changes or corrects it's answer as to citizenship.

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Speaker 11: The other point is the citizenship clause refers not just

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Speaker 11: the national citizenship but also to state citizenship. Are we

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Speaker 11: to have two different definitions for those? It's one word

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Speaker 11: citizens of the United States and citizens of the state

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Speaker 11: wherein they reside. So as you begin, I'd like you

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Speaker 11: to go back at the beginning. It'd be more specific

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Speaker 11: about the answer. And I want you to explain whether

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Speaker 11: or not those two definitions are the same court related

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Speaker 11: and what state citizenship is based on.

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Speaker 10: Thank you, Justice Thomas. I'll maybe start by addressing dread Scott.

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Speaker 10: You know, as you alluded to the fact, dread Scott,

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Speaker 10: you know, impose one of the worst injustices in the

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Speaker 10: history of this court, and it led to the outbreak

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Speaker 10: of the Civil War. It's very clear in this Court,

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Speaker 10: in all of its early cases interpreting the forty Amendment said,

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Speaker 10: you know, the one pervading purpose, the main object of

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Speaker 10: the citizenship clause is to overrule dred Scott.

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Speaker 4: And establish the citizenship of the freed slaves.

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Speaker 10: And if you look at the debates in the Congressional

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Speaker 10: record and discussion surrounding the adoption of the citizenship clause,

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Speaker 10: what you see is if very clear understanding that the

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Speaker 10: newly freed slaves and their children have a relationship of domicile.

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Speaker 4: They do not have a relationship to any foreign power.

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Speaker 10: For example, there's like a comment where he says, look,

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Speaker 10: people have been here for five generations and know clearly

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Speaker 10: have no relationships to any foreign African potentate.

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Speaker 4: You know, have a relationship of allegiance to the United States.

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Speaker 10: And that reinforces our point that allegiance is what the

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Speaker 10: word jurisdiction means. It doesn't mean regulatory jurisdiction or you know,

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Speaker 10: or sort of being subject merely subject to the laws.

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Speaker 10: They're talking and they're thinking about it in those debates

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Speaker 10: about allegiance.

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Speaker 4: Now ask to your second question.

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Speaker 10: If you look at the text of the clause, we

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Speaker 10: believe there it says, you know, born in the United State,

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Speaker 10: born or naturalized in the United States, and stubjct to

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Speaker 10: the jurisdiction thereof are citizens of the United States and

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Speaker 10: the states of which they reside. So there's a constitutional

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Speaker 10: guarantee that applies to both federal or national and state citizenship.

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Speaker 10: And the key point we make there is that that

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Speaker 10: word reside, if you look at for example, section fourteen

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Speaker 10: seventy three of Justice Stories Commentaries, was understood to mean domicide.

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Speaker 10: So when they say subject to the jurisdiction, and then

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Speaker 10: they go on to say you're a citizen of the

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Speaker 10: United States and the state in which they reside, the

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Speaker 10: very text of the clause itself presupposes that the citizen

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Speaker 10: is domicile in the United States.

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Speaker 4: If they're president and a state at all they reside there.

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Speaker 10: Reside means domicile in the Constitution, and we think that

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Speaker 10: strongly supports our interpretation. It's textual evidence of our domicile

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Speaker 10: based theory of jurisdiction.

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Speaker 12: Well, starting with that theory, you obviously put a lot

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Speaker 12: of weight on subject to the jurisdiction thereof. But the

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Speaker 12: examples you give to support that strike me as very quirky.

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Speaker 12: You know, children of ambassadors, children of enemies during a

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Speaker 12: hostile invasion, children on warships, and then you expand it

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Speaker 12: to the whole class of illegal aliens are here in

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Speaker 12: the country. I'm not quite sure how you can get

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Speaker 12: to that big group from such tiny and sort of

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Speaker 12: idiosyncratic examples.

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Speaker 10: There are those sort of narrow exceptions for ambassador, foreign

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Speaker 10: public ships, tribal anius enormous one that they were very

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Speaker 10: focused on in the debates as well. But what I

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Speaker 10: do is I invite the court to look at the

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Speaker 10: intervening step, which is the enactment of the Civil Rights

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Speaker 10: Act of eighteen sixty six. And there they didn't say

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Speaker 10: subject to the jurisdiction thereof. There it says not subject.

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Speaker 4: To any foreign power. Now, if you go back to

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Speaker 4: Blackstone in.

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Speaker 10: Calvin's case, they say it does not matter if you

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Speaker 10: were subject to any foreign power, if you were born

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Speaker 10: in the king's domains, you have this indefeasible duty of

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Speaker 10: allegiance to the king at any time. So there's a

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Speaker 10: clear repudiation in the Civil Rights Act. The Civil Rights

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Speaker 10: Act is this breakwater, which makes it very very clear

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Speaker 10: that they are not thinking about allegiance in the terms

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Speaker 10: of like the British common law. They've adopted the Republican

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Speaker 10: conception of allegiance from not subject to any foreign power,

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Speaker 10: and then the debates just a couple months later make

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Speaker 10: it very clear that they're recodifying the same conception.

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Speaker 4: They were dissatisfied with the.

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Speaker 10: Potential ambiguity in the phrase indians non tax and they

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Speaker 10: adopted subject to the jurisdiction there up. And one of

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Speaker 10: the strongest statements of this is Senator trumbull statements that

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Speaker 10: quoted at the beginning, where he says he's asked what

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Speaker 10: does that mean sub to the jurisdiction there is, and

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Speaker 10: he says, it means not owing allegiance to anybody else.

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Speaker 4: That is what it means. And this court picked up

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Speaker 4: on that and elk against Wilkins when it.

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Speaker 10: Says it uses you know, completely subject to the political jurisdiction,

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Speaker 10: not marry regulatory jurisdiction.

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Speaker 13: What do you do with one kim ARC's quote of

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Speaker 13: Daniel Webster, who said, independently of a residence with intention

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Speaker 13: to continue such residents, independently of any domaciliation, independently of

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Speaker 13: the taking of any oath of allegiance, or of renouncing

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Speaker 13: any former allegiance. It is well known own that by

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Speaker 13: the public law, a non citizen, while he is here

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Speaker 13: in the United States, owes obedience to this country's laws. Now,

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Speaker 13: the examples that lung are Kim used as exceptions are

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Speaker 13: situations in which there was not temporary allegiance to the

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Speaker 13: United States. The children of foreign diplomats whose only allegiance

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Speaker 13: was to their foreign to their foreign country, and or

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Speaker 13: occupied territory residents, including those citizens in Maine who had

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Speaker 13: been occupied by the British forces, the US had no

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Speaker 13: control over them. And the whole theory of the Indian

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Speaker 13: tribes was similar. The Indian tribes were analogized to foreign diplomats.

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Speaker 13: So what do we do with that?

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Speaker 4: I'd say two things.

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Speaker 10: First, as the Indian tribes, we think that's a case

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Speaker 10: that strongly supports us because Of course, by eighteen sixixty

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Speaker 10: six and eighteen sixty eight, there were strong understanding that

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Speaker 10: the Indian tribes were subject to the United States as regulatory jurisdic.

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Speaker 13: But not the same way that temporary foreigners were. Meaning

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Speaker 13: there was a real debate going on whether the US

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Speaker 13: actually had jurisdiction over Indian tribes. That's why our cases

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Speaker 13: for the longest time until that was finally settled, said

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Speaker 13: absence some act of Congress, there is our laws don't apply.

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Speaker 13: US laws don't apply to Indians on Indian lands.

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Speaker 4: Correct.

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Speaker 10: I believe you look at the Rogers decision for example,

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Speaker 10: that we cite our brief where they say that they

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Speaker 10: are subject to this.

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Speaker 5: That's later.

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Speaker 4: I'm talking at the time, Yes, at the time. So

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Speaker 4: as the eighteen So what do.

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Speaker 13: You do during the debates of the eighteen sixty six

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Speaker 13: Civil Rights Act and of the fourteenth Amendment, with the

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Speaker 13: entire discussion of the people who opposed the amendment, who

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Speaker 13: kept saying, we can't pass it because we're making citizens

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Speaker 13: and of gypsies will have no allegiance to anybody, and

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Speaker 13: we're not we're going to make citizens of Chinese people

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Speaker 13: who can't be citizens because we're not going to permit

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Speaker 13: them to be citizens. What do we do with those

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Speaker 13: debates and the fact that the proponents of both acts

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Speaker 13: said everyone who's born in the US.

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Speaker 10: Will be citizens first, as that particular change page twenty

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Speaker 10: eight ninety of the Congressional Record from eighteen sixty six,

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Speaker 10: Senator Cowan gives this irulently racist statement where he says that,

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Speaker 10: and what does he say right at the beginning of

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Speaker 10: that that sort offensive speech. He says, he says, we

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Speaker 10: can't have children of gypsies, children of Chinese immigrants, we

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Speaker 10: can't have them become citizens. And he says, quote, have

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Speaker 10: they any more rights than a sojourner in the United States.

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Speaker 4: So he's trying to persuade the.

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Speaker 10: Republicans to his view by appealing to a common understanding

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Speaker 10: that so journers do not have children who become citizens.

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Speaker 10: He says, pow powerful evidence there that everybody understood this

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Speaker 10: to you know, not sweep in the temporary so and

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Speaker 10: that's why you see for forty fifty years, you see

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Speaker 10: every commentator who addresses the specific question of temporary presence

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Speaker 10: saying it's not covered by the clause, including for decades

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Speaker 10: after walk.

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Speaker 7: In Mark general. Can I take you back.

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Speaker 14: To the Chief Justice's question about the specific exceptions to

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Speaker 14: birthright citizenship that everybody seems to agree we're recognized under

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Speaker 14: the common law, and it brings up an important principle

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Speaker 14: about how we interpret the law when particular problems pop up.

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Speaker 14: Lawmakers may enact a general rule. When they do that

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Speaker 14: is the application of that general rule limited only to

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Speaker 14: the situations that they had in mind when they adopted

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Speaker 14: the general rule, or do we say they adopted a

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Speaker 14: general rule, they meant for that to apply to later

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Speaker 14: applications that might come up. Justice had an example that

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Speaker 14: dealt with this situation. He imagined an old theft statute

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Speaker 14: that was acted well before anybody conceived of a microwave oven.

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Speaker 14: And then afterwards someone is charged with the crime of

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Speaker 14: stealing a microwave oven, and this fellow says, well, I

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Speaker 14: can't be convicted under this because the microwave oven didn't

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Speaker 14: exist at that time, And he dismissed that. There's a

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Speaker 14: general rule there, and you'll apply it to future applications.

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Speaker 14: And what we're dealing with here is something that was

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Speaker 14: basically unknown at the time when the fourteenth Amendment was adopted,

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Speaker 14: which is illegal immigration, So how did we deal with

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Speaker 14: that situation when we have a general rule?

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Speaker 10: Yeah, I strongly agree with the way that you framed it,

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Speaker 10: that there is a general principle, that's a broad principle

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Speaker 10: that's adopted. The phrase started the jurisdiction thereof, and we

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Speaker 10: submit that our theory of allegiance and domicile based allegiance

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Speaker 10: what explains those specific exceptions that everybody was aware of,

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Speaker 10: but it is broad enough to sweep in future situations.

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Speaker 10: And as you point out, illegal immigration did not exist then.

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Speaker 10: Now the problem of temporary visitors did exist. And it's

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Speaker 10: very interesting that as you look at pages twenty six

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Speaker 10: and twenty eight of our brief commentators going from you know,

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Speaker 10: eighteen eighty one until nineteen twenty two are uniformly saying

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Speaker 10: that children of temporary visitors are not included. Now that

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Speaker 10: logic we say, it's a naturally extends. It's really an

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Speaker 10: off forceh uri case.

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Speaker 4: If you are someone who enters illegally.

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Speaker 10: By the eighteen eighties, there are restrictions on immigration if

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Speaker 10: you've entered illegally. It's kind of, you know, a well

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Speaker 10: established principle of law. Going back to the Code of

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Speaker 10: Justinian that says you're not allowed to be there. You

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Speaker 10: cannot you don't have a legal capacity to create domicile

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Speaker 10: of it.

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Speaker 15: But I think general salary that what you just said

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Speaker 15: suggests that you can't be arguing in the way Justice

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Speaker 15: Alito suggests, because most of your brief is not about

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Speaker 15: illegal aliens. Most of your brief is about people who

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Speaker 15: are just temporarily in the country where there was quite

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Speaker 15: clearly an experience of an understanding of that there were

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Speaker 15: going to be temporary inhabitants, and your whole theory of

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Speaker 15: the case is built on that group. You don't get

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Speaker 15: to talking about undocumented persons until quite later, and at

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Speaker 15: much lesser you know, I think it's like ten pages

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Speaker 15: to three pages or something like that. So you can't

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Speaker 15: really be going with Justice Alito's theory. You must be

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Speaker 15: saying that there is a principle that developed that was

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Speaker 15: there in at the time of the fourteenth Amendment.

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Speaker 5: Isn't that right?

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Speaker 10: We agree there's a principle there at the fourteenth Amendment.

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Speaker 10: It is the jurisdiction means allegiance, the allegiance of a

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Speaker 10: This very strongly reflected in the nineteenth century sources. The

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Speaker 10: allegiance of an alien president in other country is determined

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Speaker 10: by domicile, and that goes back to the VS and

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Speaker 10: the Pizarro, It goes through the Katsa Fair in eighteen

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Speaker 10: fifty three. It comes right up to Fong Uting and

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Speaker 10: Lao Au Bou that are decided shortly before.

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Speaker 4: Wong Kim RK. So that's the principle. That principle clearly

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Speaker 4: applies here.

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Speaker 15: I also respect you Disagreeyeah, I guess, mister General Sauer,

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Speaker 15: you know where does this principle come from? Allegiance domicile allegiance.

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Speaker 15: I think you point to a link in funeral speech

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Speaker 15: as your primary example of where this principle comes from.

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Speaker 15: It's certainly not what we think of when we think

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Speaker 15: of the word jurisdiction. And I appreciate that jurisdiction has

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Speaker 15: many meanings, but you know, the first meaning is like,

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Speaker 15: if you're subject to jurisdiction, you're subject to the authority

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Speaker 15: of one doesn't say, Oh, what that means is a

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Speaker 15: certain kind of allegiance that domiciliaries have and nobody else does.

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Speaker 15: So the text of the clause I think does not

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Speaker 15: support you. I think you're sort of looking for some

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Speaker 15: more technical, esoteric meaning. And then the question comes, Okay,

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Speaker 15: if the text doesn't support you, if there's a real

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Speaker 15: history of people using it that way. But as far

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Speaker 15: as I can tell you, at the time of the fourteen,

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Speaker 15: you're you're using some pretty obscure sources to get to this.

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Speaker 4: Concept. Well, take it.

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Speaker 10: Straight from the framer's mouths. So, for example, Senator Trumbull said,

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Speaker 10: was asked what is jurisdiction means? He means sub to

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Speaker 10: the jurisdiction. He said, what does that mean? He says,

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Speaker 10: it means not owing allegiance to anybody else. He is

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Speaker 10: the principal a framer of the civil rights active eighteen

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Speaker 10: sixty six. Representative Bigham, who's the framer of the fourteenth Amendment,

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Speaker 10: is asked what does it mean in the Congressional record

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Speaker 10: at page twelve ninety one, he says, within the jurisdiction

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Speaker 10: of the United States of parents, not owing allegiance to

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Speaker 10: any foreign sovereignty. And we've cited many, many examples where

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Speaker 10: the congressional debates reflect that. Then you refer to the

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Speaker 10: oration of George Bancroft. That's one of probably sixteen sources

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Speaker 10: of when there's at least thirteen counting that one in

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Speaker 10: the twelve Treaties, as we cite it, pages twenty six

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Speaker 10: to twenty eight of our brief, there is over a

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Speaker 10: dozen sources that specifically address temporary sojourners. In the five

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Speaker 10: decades after the enactity Amendment, every single one of them says, well,

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Speaker 10: temporary sojourners their children are not include, including for two

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Speaker 10: decades after Walon kim Mark.

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Speaker 16: So, if domiciles the key to Lynchpinn to your argument,

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Speaker 16: I take it that it is do we look at

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Speaker 16: how domiciles understood in eighteen sixty eight, or do we

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Speaker 16: look at it how it's understood today in context of thena.

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Speaker 10: The eighteen sixty eight understanding not not aware of a

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Speaker 10: strong difference between those.

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Speaker 16: Well, here's where I'm going with it. I'm just working

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Speaker 16: within your argument for a moment. Today you can point

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Speaker 16: to laws against immigration that are much more restrictive than

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Speaker 16: they were in eighties eight. We really didn't have laws

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Speaker 16: like that we do today until maybe eighteen eighty. So

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Speaker 16: if somebody showed up here in eighteen sixty eight and

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Speaker 16: established domicile, that was perfectly fine without respect to any

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Speaker 16: immigration laws there they were. And so why wouldn't we

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Speaker 16: even if we were to apply your own test come

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Speaker 16: to the conclusion that the fact that someone might be

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Speaker 16: illegal is immaterial.

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Speaker 10: I would first cite wan Kim Mark on that point,

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Speaker 10: because Wankamark says.

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Speaker 16: You're, well, I'm not sure how much you want to

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Speaker 16: rely on want Kamar.

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Speaker 10: But that that state there is a statement in it.

439
00:24:13,600 --> 00:24:16,120
Speaker 10: It says so long as they are permitted to be here.

440
00:24:16,400 --> 00:24:18,160
Speaker 10: So Wan Kmark, keep in mind that by the time

441
00:24:18,160 --> 00:24:19,600
Speaker 10: they decide Wonky Mark.

442
00:24:20,840 --> 00:24:23,000
Speaker 16: But that's eighteen ninety eight. Now I'm looking at eighteen

443
00:24:23,119 --> 00:24:25,080
Speaker 16: sixty eight. You're telling me is when I should look.

444
00:24:25,119 --> 00:24:28,280
Speaker 16: And the test for domicile and the stuff you have

445
00:24:28,320 --> 00:24:32,000
Speaker 16: about unlawfully present, it's like Roman law sources.

446
00:24:32,040 --> 00:24:32,760
Speaker 7: You're going to.

447
00:24:33,160 --> 00:24:37,560
Speaker 10: First and secondary statements as well, but decisions a discord.

448
00:24:38,119 --> 00:24:39,879
Speaker 16: So it wouldn't be the i NA that would control

449
00:24:39,920 --> 00:24:43,760
Speaker 16: whether you're capable of having domicile. It would be whatever

450
00:24:43,800 --> 00:24:45,359
Speaker 16: the law was in eighteen sixty eight.

451
00:24:46,680 --> 00:24:49,240
Speaker 10: Well, I think that this is addressed by my exchange

452
00:24:49,320 --> 00:24:52,120
Speaker 10: was Justice Leader from earlier, which is that this concept

453
00:24:52,240 --> 00:24:55,240
Speaker 10: jurisdiction baking an allegiance.

454
00:24:54,800 --> 00:25:00,720
Speaker 16: And continually restrict who may lawfully be present more and more,

455
00:25:01,240 --> 00:25:04,120
Speaker 16: and you'd say that would be incorporated into it, even

456
00:25:04,160 --> 00:25:06,080
Speaker 16: though you're telling us to apply the original meaning of

457
00:25:06,200 --> 00:25:07,040
Speaker 16: eighteen sixty.

458
00:25:06,840 --> 00:25:08,560
Speaker 4: Eight, the original meaning of domicile.

459
00:25:08,840 --> 00:25:10,879
Speaker 10: And so the question is, is there any argument that

460
00:25:11,000 --> 00:25:14,760
Speaker 10: the framers intended to preclude Congress from dictating who can

461
00:25:14,840 --> 00:25:17,280
Speaker 10: who cannot establish a lawful domicile here? I don't see

462
00:25:17,280 --> 00:25:19,080
Speaker 10: any evidence of that in the congressional record. So it's

463
00:25:19,080 --> 00:25:19,880
Speaker 10: a natural extension.

464
00:25:19,920 --> 00:25:24,320
Speaker 16: Whose domicile matters? I mean, it's not the child, obviously,

465
00:25:24,800 --> 00:25:28,840
Speaker 16: it's the parents you'd have us focus on. And you know,

466
00:25:28,920 --> 00:25:30,800
Speaker 16: what if is it the husband, is it the wife?

467
00:25:30,880 --> 00:25:33,080
Speaker 16: What if they're unmarried? Who's domicile?

468
00:25:33,440 --> 00:25:33,680
Speaker 5: Well?

469
00:25:33,720 --> 00:25:36,200
Speaker 4: And in the executive order it draws at sixtu.

470
00:25:36,080 --> 00:25:39,280
Speaker 10: Between the mother and the father. Answerally, the mother is domicile.

471
00:25:39,359 --> 00:25:40,440
Speaker 10: I think that would matter.

472
00:25:40,240 --> 00:25:42,479
Speaker 16: Well, But eighteen sixty eight matters, you're telling us, So

473
00:25:42,800 --> 00:25:43,680
Speaker 16: what's the answer.

474
00:25:44,000 --> 00:25:47,000
Speaker 10: The eighteen sixty eight sources talk about parents. I'm not

475
00:25:47,040 --> 00:25:48,920
Speaker 10: aware of them drawing a sincy between mother or father,

476
00:25:49,000 --> 00:25:51,560
Speaker 10: but they say that domicile the child follows the domicile

477
00:25:51,560 --> 00:25:52,040
Speaker 10: of the parents.

478
00:25:52,080 --> 00:25:54,240
Speaker 16: And how are we going to determine domicile? I mean,

479
00:25:55,080 --> 00:25:58,919
Speaker 16: would we use contemporary sources on what qualifies as domicile

480
00:25:58,960 --> 00:26:00,879
Speaker 16: in a state, or do we look in eighteen sixty

481
00:26:00,920 --> 00:26:02,560
Speaker 16: eight and do we have to do this for every

482
00:26:02,600 --> 00:26:03,320
Speaker 16: single person?

483
00:26:03,480 --> 00:26:05,520
Speaker 10: And again I don't see a strong distinction between those,

484
00:26:05,560 --> 00:26:08,520
Speaker 10: because of course domicile is a high level concept has

485
00:26:08,520 --> 00:26:11,280
Speaker 10: been pretty consistent over centuries, which is lawful presence, with

486
00:26:11,359 --> 00:26:14,920
Speaker 10: the intent Rey made permanently that domicile when you've come

487
00:26:14,960 --> 00:26:16,200
Speaker 10: to a new nation, you say I'm.

488
00:26:16,080 --> 00:26:16,880
Speaker 4: Here to stay.

489
00:26:16,920 --> 00:26:19,240
Speaker 10: You become part of their political community, and you become

490
00:26:19,320 --> 00:26:22,159
Speaker 10: akin to a citizen. And that's reflected very strongly in

491
00:26:22,160 --> 00:26:23,119
Speaker 10: the case I cided it before.

492
00:26:23,200 --> 00:26:26,520
Speaker 16: And just to circle back to Justice Kagan's point, it's

493
00:26:26,560 --> 00:26:29,480
Speaker 16: striking that in none of the debates do we have

494
00:26:29,760 --> 00:26:35,160
Speaker 16: parents discussed. We have the child's citizenship and the focus

495
00:26:35,200 --> 00:26:38,159
Speaker 16: of clauses on the child, not on the parents, and

496
00:26:38,200 --> 00:26:42,240
Speaker 16: you don't see domicile mentioned in the debates. That's the

497
00:26:42,280 --> 00:26:43,359
Speaker 16: absence is striking.

498
00:26:43,600 --> 00:26:45,840
Speaker 10: I think the nineteenth century sources would say a child,

499
00:26:45,920 --> 00:26:48,760
Speaker 10: a newborn child lacks the capacity to form a domicile,

500
00:26:48,800 --> 00:26:50,560
Speaker 10: so they're imputed the domicile of their parents. So I

501
00:26:50,600 --> 00:26:53,240
Speaker 10: don't think they would have seen a distinction between children

502
00:26:53,240 --> 00:26:56,200
Speaker 10: and parents, and I point out that their position, like ours,

503
00:26:56,400 --> 00:26:58,240
Speaker 10: is forced to look at the domicile of the parents.

504
00:26:58,000 --> 00:27:00,239
Speaker 4: Because we look at the exceptions that they accept. I'm

505
00:27:00,240 --> 00:27:01,639
Speaker 4: talking about so far.

506
00:27:01,680 --> 00:27:04,880
Speaker 16: I'm talking about in the debates over the Fourteenth Amendment

507
00:27:05,000 --> 00:27:08,200
Speaker 16: and the Civil Rights Act. It's striking that these concepts

508
00:27:08,240 --> 00:27:09,879
Speaker 16: aren't discussed in them.

509
00:27:11,640 --> 00:27:13,240
Speaker 4: I think domicile is discussed.

510
00:27:13,280 --> 00:27:18,160
Speaker 16: I mean, it's brought up in many allegiance jurisdiction, complete jurisdiction.

511
00:27:19,640 --> 00:27:21,400
Speaker 4: Well, I mean, here's just a few examples.

512
00:27:21,520 --> 00:27:24,159
Speaker 10: At page sixteen seventy nine in the Congression Record, President

513
00:27:24,200 --> 00:27:26,640
Speaker 10: Johnson veto's the first version of the Civil Rights Act,

514
00:27:26,640 --> 00:27:28,760
Speaker 10: and he says, I can't sign this because it would

515
00:27:28,800 --> 00:27:33,120
Speaker 10: extend alien senssship to the children of quote all domiciled

516
00:27:33,160 --> 00:27:35,800
Speaker 10: aliens and foreigners, even if not naturalized. And you have

517
00:27:35,800 --> 00:27:37,320
Speaker 10: all the other sources of each side of that say

518
00:27:37,440 --> 00:27:39,879
Speaker 10: when this goes and it is a deeply rooted nineteenth

519
00:27:39,880 --> 00:27:42,800
Speaker 10: century understanding. It's reflected in the Venus, it's reflected in

520
00:27:42,840 --> 00:27:45,840
Speaker 10: the Bizarro in eighteen fourteen, eighteen seventeen, it carries through

521
00:27:45,880 --> 00:27:49,040
Speaker 10: the nineteenth century, and this court is talking about it

522
00:27:49,080 --> 00:27:50,879
Speaker 10: in eighteen ninety two and eighteen ninety three when it's

523
00:27:50,960 --> 00:27:55,280
Speaker 10: discussing the Chinese exclusion. X domicile is the key concept

524
00:27:55,400 --> 00:27:56,480
Speaker 10: that creates allegiance.

525
00:27:56,520 --> 00:27:57,399
Speaker 5: That's general.

526
00:27:58,119 --> 00:28:01,879
Speaker 17: Can I said in your replace Live brief that the

527
00:28:02,000 --> 00:28:06,639
Speaker 17: children of slaves who were brought here unlawfully, you know,

528
00:28:06,920 --> 00:28:11,919
Speaker 17: in defiance of laws forbading the slave trade, would in

529
00:28:11,960 --> 00:28:14,960
Speaker 17: fact be citizens. And you can imagine that their parents

530
00:28:15,040 --> 00:28:17,359
Speaker 17: were not only brought here in violation of the United

531
00:28:17,359 --> 00:28:19,760
Speaker 17: States law, but we're here against their will, and so

532
00:28:19,840 --> 00:28:22,720
Speaker 17: maybe felt allegiance to the countries where they were from.

533
00:28:23,200 --> 00:28:25,960
Speaker 17: And you say that the purpose of the fourteenth Amendment

534
00:28:26,119 --> 00:28:28,760
Speaker 17: was to put all slaves on equal footing, newly freed

535
00:28:28,760 --> 00:28:31,240
Speaker 17: slaves on equal footing, and so they would be citizens.

536
00:28:32,080 --> 00:28:34,760
Speaker 17: But that's not textual. So how do you get there?

537
00:28:34,800 --> 00:28:36,480
Speaker 17: You say it in just a few sentences, So can

538
00:28:36,520 --> 00:28:37,200
Speaker 17: you elaborate?

539
00:28:37,240 --> 00:28:37,440
Speaker 4: Sure?

540
00:28:37,440 --> 00:28:38,600
Speaker 10: If you look at then I think if you look

541
00:28:38,600 --> 00:28:40,760
Speaker 10: at the nineteenth century sources, what you see is that

542
00:28:40,840 --> 00:28:44,000
Speaker 10: even though their entry may have been unlawful, nineteenth century

543
00:28:44,000 --> 00:28:46,600
Speaker 10: anti bellum law never created their presence as unlawful.

544
00:28:46,600 --> 00:28:48,200
Speaker 4: In fact, quite the opposite. One of the amiki.

545
00:28:48,840 --> 00:28:51,320
Speaker 10: In fact points like a Mississippi statute which probably is

546
00:28:51,320 --> 00:28:54,880
Speaker 10: replicated throughout the South before the Civil War, that says

547
00:28:55,200 --> 00:28:59,440
Speaker 10: slaves in Mississippi have an indefeasible domicile in Mississippi. In

548
00:28:59,480 --> 00:29:01,400
Speaker 10: other words, if they run away, if they get away,

549
00:29:01,880 --> 00:29:04,120
Speaker 10: the Mississippi says, nope, you still live here, right, And

550
00:29:04,160 --> 00:29:05,920
Speaker 10: so it would be astonishing, in other words, for our

551
00:29:05,920 --> 00:29:08,479
Speaker 10: opponents of the fourteenth Amendment to say, oh, you know,

552
00:29:08,600 --> 00:29:11,040
Speaker 10: these people were not domiciled, and therefore it goes the

553
00:29:11,040 --> 00:29:13,880
Speaker 10: other way, because actually us live either even if they

554
00:29:13,920 --> 00:29:16,640
Speaker 10: were brought in illegally and on all, you know, through

555
00:29:16,640 --> 00:29:17,880
Speaker 10: an illegal slave trade.

556
00:29:18,000 --> 00:29:19,040
Speaker 4: Once they were there by.

557
00:29:19,080 --> 00:29:21,360
Speaker 17: Well, their intent is to return as soon as they can.

558
00:29:21,480 --> 00:29:24,720
Speaker 17: Let's say, so they're here, they're resident, and maybe under

559
00:29:24,720 --> 00:29:27,360
Speaker 17: your theory I mean, which says, well lawfulness for a

560
00:29:27,360 --> 00:29:30,560
Speaker 17: different purpose. But they're here, they're resident. Let's take your

561
00:29:30,560 --> 00:29:33,120
Speaker 17: assumption that they're not here unlawfully. Let's say they don't

562
00:29:33,160 --> 00:29:34,880
Speaker 17: have an intent to stay. They want to escape and

563
00:29:34,920 --> 00:29:37,400
Speaker 17: go back the second they can. Are they domo sol.

564
00:29:38,240 --> 00:29:39,520
Speaker 4: Under the nineteenth century law?

565
00:29:39,520 --> 00:29:41,200
Speaker 10: I mean, I think this is the flip side of

566
00:29:41,280 --> 00:29:44,400
Speaker 10: the hypothetical that we talked about earlier. Under nineteenth century law,

567
00:29:44,480 --> 00:29:46,560
Speaker 10: they are treated as domicide in the United States, so

568
00:29:46,600 --> 00:29:48,800
Speaker 10: it'd be astonishing. And in the debates in the congressional

569
00:29:48,880 --> 00:29:51,560
Speaker 10: four talk about not this specific case, but they say, look,

570
00:29:51,920 --> 00:29:54,040
Speaker 10: slaves who have been forced to come here and have

571
00:29:54,120 --> 00:29:57,120
Speaker 10: been here are lawfully domiciled here. I mean they don't

572
00:29:57,200 --> 00:29:59,600
Speaker 10: use the ways domicile like they have they use allegiance.

573
00:29:59,640 --> 00:30:00,560
Speaker 4: They say, they.

574
00:30:00,480 --> 00:30:02,800
Speaker 10: Don't have allegiance once they've been forced to come here,

575
00:30:02,800 --> 00:30:05,840
Speaker 10: they don't have allegiance. Any foreign are African potentate and

576
00:30:05,920 --> 00:30:07,640
Speaker 10: therefore the general equals.

577
00:30:07,680 --> 00:30:11,360
Speaker 17: Let that apply to human the children of illegally trafficked

578
00:30:11,400 --> 00:30:14,160
Speaker 17: people today, But the same reasoning will play.

579
00:30:14,280 --> 00:30:17,680
Speaker 10: It would turn on whether the parent the parents are

580
00:30:17,760 --> 00:30:19,840
Speaker 10: lawfully domiciled in the United States.

581
00:30:19,840 --> 00:30:23,600
Speaker 17: So if they're brought in illegally, but then they choose

582
00:30:23,640 --> 00:30:26,040
Speaker 17: to remain and they want to remain and they're domiciled,

583
00:30:26,440 --> 00:30:29,640
Speaker 17: you would say that their lawful presence is not dictated

584
00:30:29,800 --> 00:30:32,280
Speaker 17: by whether they were brought here lawfully or not. And

585
00:30:32,320 --> 00:30:36,120
Speaker 17: that's different from someone who say crosses the border and lawfully.

586
00:30:35,840 --> 00:30:39,600
Speaker 10: Yeah, I think turn on whether their presence is lawful.

587
00:30:39,920 --> 00:30:43,720
Speaker 10: In other words, obviously, maybe many other important things that could.

588
00:30:43,520 --> 00:30:44,880
Speaker 4: Be done to assist people like that.

589
00:30:44,920 --> 00:30:46,360
Speaker 10: The question is if they give birth to someone in

590
00:30:46,400 --> 00:30:49,040
Speaker 10: the United States, that person naturally a citizen, that would turn,

591
00:30:49,120 --> 00:30:51,400
Speaker 10: based on the original public media of the clause on

592
00:30:51,560 --> 00:30:52,840
Speaker 10: the lawfulness of their presence.

593
00:30:53,280 --> 00:30:54,040
Speaker 4: Are they dominicide?

594
00:30:54,120 --> 00:30:54,400
Speaker 5: General?

595
00:30:54,440 --> 00:30:57,280
Speaker 18: Can I ask you a question to follow up on

596
00:30:57,400 --> 00:31:01,760
Speaker 18: what Justice Gorsuch was exploring with you with respect to domicile.

597
00:31:02,120 --> 00:31:05,880
Speaker 18: Did I understand you to say that domicile is going

598
00:31:05,920 --> 00:31:10,000
Speaker 18: to be eventually or is controlled by Congress? Who is domiciled?

599
00:31:10,200 --> 00:31:13,080
Speaker 18: I'm struggling to figure out who is domiciled in your argument.

600
00:31:14,000 --> 00:31:16,880
Speaker 10: The domiciliaries are people who are lawfully present and have

601
00:31:16,960 --> 00:31:18,920
Speaker 10: an intent to remain permanently. So that's the kind of

602
00:31:18,920 --> 00:31:23,400
Speaker 10: black letter understanding of domicile. Now Congress can dictate that

603
00:31:23,440 --> 00:31:26,480
Speaker 10: certain classes of people legal entrance and so forth cannot

604
00:31:26,640 --> 00:31:30,680
Speaker 10: lawfully lack of legal capacity to form a legally binding Doctit.

605
00:31:30,560 --> 00:31:34,760
Speaker 18: Is that, So then doesn't it make the domicile for

606
00:31:34,800 --> 00:31:37,880
Speaker 18: the purpose of the Fourteenth Amendment turned then ultimately on

607
00:31:37,960 --> 00:31:42,360
Speaker 18: Congress's will in a way that the framers did not intend.

608
00:31:42,560 --> 00:31:46,760
Speaker 18: I mean, my understanding was the Framers put this citizenship

609
00:31:46,800 --> 00:31:52,160
Speaker 18: clause into the Constitution to prevent future Congresses from being

610
00:31:52,240 --> 00:31:54,440
Speaker 18: able to affect citizenship in this.

611
00:31:54,360 --> 00:31:56,080
Speaker 4: Way for sure.

612
00:31:57,800 --> 00:32:01,760
Speaker 10: Very briefly, no, I don't think so, because it is

613
00:32:01,880 --> 00:32:04,040
Speaker 10: up to the alien whether or not they want to

614
00:32:04,080 --> 00:32:05,080
Speaker 10: be domiciled here.

615
00:32:05,120 --> 00:32:09,920
Speaker 18: Now, there may be said Congress can make determinations as

616
00:32:09,920 --> 00:32:14,120
Speaker 18: to who counts as being domiciled here. So that's true,

617
00:32:14,200 --> 00:32:18,160
Speaker 18: then it ultimately would impact in your theory whether or

618
00:32:18,200 --> 00:32:21,440
Speaker 18: not this person can claim that they have citizenship for

619
00:32:21,480 --> 00:32:26,880
Speaker 18: Fourteenth Amendment purposes based on Congress's determination. And I just

620
00:32:26,920 --> 00:32:29,240
Speaker 18: thought that's what the fourteenth Amendment was trying to get

621
00:32:29,280 --> 00:32:30,280
Speaker 18: away from.

622
00:32:31,800 --> 00:32:35,600
Speaker 10: Yes, very brieflyat I just points you too, the discussion

623
00:32:35,600 --> 00:32:37,800
Speaker 10: in Professor Worman's and I guess brief where he talks

624
00:32:37,800 --> 00:32:41,440
Speaker 10: about this is not a new problem, going back even

625
00:32:41,480 --> 00:32:43,960
Speaker 10: to the British common law. There's a situation of people

626
00:32:44,000 --> 00:32:46,160
Speaker 10: who lack a safe conduct and are passing through the

627
00:32:46,240 --> 00:32:48,920
Speaker 10: King's domains without permission, and he says, the best reading

628
00:32:48,920 --> 00:32:50,440
Speaker 10: of the common laws, they are not in the protection

629
00:32:50,480 --> 00:32:52,239
Speaker 10: of the King, and they're not covered by the rory

630
00:32:52,280 --> 00:32:53,320
Speaker 10: of birthright citizenship.

631
00:32:53,600 --> 00:32:54,400
Speaker 5: Thank you, counsel.

632
00:32:55,400 --> 00:32:58,480
Speaker 12: If you mentioned in your briefing and also this morning,

633
00:32:58,520 --> 00:33:03,920
Speaker 12: the problem of birth tourism. Do you have any information

634
00:33:04,160 --> 00:33:07,880
Speaker 12: about how common that is or how significant a problem

635
00:33:08,000 --> 00:33:08,719
Speaker 12: problem it is.

636
00:33:09,360 --> 00:33:11,120
Speaker 4: It's a great question. No one knows for sure.

637
00:33:11,160 --> 00:33:13,480
Speaker 10: There's a March ninth letter from a number of members

638
00:33:13,560 --> 00:33:16,280
Speaker 10: of Congress to DHS saying, do we have any information

639
00:33:16,320 --> 00:33:20,600
Speaker 10: about this? The media reports indicate estimates could be over

640
00:33:21,400 --> 00:33:23,680
Speaker 10: a million or one point five million from the People's

641
00:33:23,720 --> 00:33:27,400
Speaker 10: Republic of China alone. The Congressional report that we cite

642
00:33:27,440 --> 00:33:30,400
Speaker 10: in our brief talks about certain hot spots like Russian

643
00:33:30,400 --> 00:33:34,000
Speaker 10: elites coming to Miami through these birth tourism companies. I mean,

644
00:33:34,840 --> 00:33:36,680
Speaker 10: here's the fact about it that I think is striking.

645
00:33:37,200 --> 00:33:39,960
Speaker 10: Media reported as early as twenty fifteen that, based on

646
00:33:40,120 --> 00:33:44,880
Speaker 10: Chinese media reports, there are five hundred five hundred birth

647
00:33:44,920 --> 00:33:46,800
Speaker 10: tourism companies in the People's.

648
00:33:46,440 --> 00:33:47,320
Speaker 4: Republic of China.

649
00:33:47,520 --> 00:33:50,920
Speaker 10: Who's what business is to bring people here to give

650
00:33:50,960 --> 00:33:53,040
Speaker 10: birth and return to to that nation.

651
00:33:53,160 --> 00:33:56,640
Speaker 19: Analysis before us, I think it's id quote with Justice

652
00:33:56,680 --> 00:33:59,400
Speaker 19: Clia said in his Homdan descent, where they had where

653
00:33:59,760 --> 00:34:03,640
Speaker 19: they're interpretation has these implications that could not possibly have

654
00:34:03,800 --> 00:34:07,360
Speaker 19: been approved by the nineteenth century framers of this amendment.

655
00:34:07,440 --> 00:34:10,480
Speaker 10: I think that shows that they've made a mess. Their

656
00:34:10,520 --> 00:34:12,080
Speaker 10: interpretation has made a mess of the provision.

657
00:34:12,280 --> 00:34:15,120
Speaker 5: Well, it certainly wasn't a problem in the nineteenth century.

658
00:34:15,800 --> 00:34:17,920
Speaker 10: No, But of course we're in a new world now,

659
00:34:17,960 --> 00:34:20,160
Speaker 10: is Justice Leader pointed out to where eight billion people

660
00:34:20,200 --> 00:34:23,120
Speaker 10: are one plane ride away from having a child who's

661
00:34:23,120 --> 00:34:23,800
Speaker 10: a US citizen.

662
00:34:23,960 --> 00:34:27,920
Speaker 5: Well, it's a new world. It's the same constitution, it is.

663
00:34:28,080 --> 00:34:30,839
Speaker 10: And as Justice Scalia said, I think in the case

664
00:34:30,880 --> 00:34:34,359
Speaker 10: that Justice Leader was referring to, you've got a cons

665
00:34:34,360 --> 00:34:36,920
Speaker 10: social provision that addresses certain evils, and it should be

666
00:34:36,960 --> 00:34:39,120
Speaker 10: extended to reasonly comparable evils. He said that about stash

667
00:34:39,120 --> 00:34:41,719
Speaker 10: story interpretation. I think the same principle applies here.

668
00:34:41,640 --> 00:34:43,160
Speaker 4: And I think we quote that in our brief Thank you,

669
00:34:43,360 --> 00:34:43,880
Speaker 4: Justice Thomas.

670
00:34:43,920 --> 00:34:48,200
Speaker 11: Any further general, you're getting a lot of questions about immigration,

671
00:34:48,680 --> 00:34:53,160
Speaker 11: and they harke it back, of course to the citizenship,

672
00:34:53,320 --> 00:34:57,640
Speaker 11: which is defined in or set out in the fourteenth Amendment.

673
00:34:58,200 --> 00:35:02,239
Speaker 11: How much of the debates around the fourteenth Amendment had

674
00:35:02,320 --> 00:35:03,800
Speaker 11: anything to do with immigration.

675
00:35:07,000 --> 00:35:10,160
Speaker 10: I think that that the principal focus of those debates

676
00:35:10,760 --> 00:35:13,000
Speaker 10: it has to do really not with immigrants, but with

677
00:35:13,360 --> 00:35:14,280
Speaker 10: the Indian tribes.

678
00:35:14,320 --> 00:35:16,560
Speaker 4: I mean, obviously the main goal that one pervading purpose

679
00:35:16,600 --> 00:35:17,160
Speaker 4: of this court.

680
00:35:17,040 --> 00:35:20,440
Speaker 10: Said in the slaughterhouse cases, was to establish the citizenship

681
00:35:20,480 --> 00:35:22,440
Speaker 10: with the freed slaves and their children. But they were

682
00:35:22,560 --> 00:35:27,560
Speaker 10: very concerned about the problem of something that they all

683
00:35:27,640 --> 00:35:29,520
Speaker 10: accepted as a given, which is that the children of

684
00:35:29,600 --> 00:35:33,799
Speaker 10: tribal Indians are not within the rule of birthright citizenship.

685
00:35:34,000 --> 00:35:34,840
Speaker 4: So I think that's what.

686
00:35:39,440 --> 00:35:41,759
Speaker 10: The folkus and we draw analogy to that to the

687
00:35:41,880 --> 00:35:45,080
Speaker 10: issue of temporary sojourners. And then but there are mentions

688
00:35:45,120 --> 00:35:47,239
Speaker 10: of temporary sojourny multiple places in.

689
00:35:50,280 --> 00:35:54,879
Speaker 11: Action, and there was just a sodama brought up Long

690
00:35:55,000 --> 00:36:00,440
Speaker 11: King Arc. There was no question in that case that

691
00:36:01,840 --> 00:36:03,560
Speaker 11: about domicile, was there.

692
00:36:04,560 --> 00:36:05,239
Speaker 4: I disagree.

693
00:36:05,880 --> 00:36:07,840
Speaker 10: The court says at the very beginning of its opinion,

694
00:36:07,920 --> 00:36:11,160
Speaker 10: here are the accepted facts. These are lawfully domiciled. Here,

695
00:36:11,400 --> 00:36:13,880
Speaker 10: when it states the question presented, it talks about domicile.

696
00:36:14,040 --> 00:36:16,440
Speaker 10: When it recites the legal principle. At page six ninety three,

697
00:36:16,480 --> 00:36:18,840
Speaker 10: it says domicile three times, and at page seven o

698
00:36:18,920 --> 00:36:20,400
Speaker 10: five at the end of the opinion says, here's the

699
00:36:20,440 --> 00:36:21,040
Speaker 10: single question.

700
00:36:21,120 --> 00:36:21,760
Speaker 4: We've decided.

701
00:36:22,120 --> 00:36:26,480
Speaker 10: We've decided that Chinese immigrants with a permanent domicile and

702
00:36:26,600 --> 00:36:29,360
Speaker 10: residence here are fall within the Royal birthright citizenship.

703
00:36:30,400 --> 00:36:31,000
Speaker 7: Just this alido.

704
00:36:32,880 --> 00:36:37,800
Speaker 14: Under the minimum definition of domicile, which I think existed

705
00:36:37,880 --> 00:36:41,080
Speaker 14: in eighteen sixty eight and continues to exist today, a

706
00:36:41,160 --> 00:36:46,400
Speaker 14: person's domicile is the place where he or she intends

707
00:36:46,520 --> 00:36:51,439
Speaker 14: to make a permanent home. Now, normally you would think

708
00:36:51,560 --> 00:36:55,000
Speaker 14: that a person who is subject to arrest at any

709
00:36:55,120 --> 00:37:00,200
Speaker 14: time and removal could not establish a domicile. We have

710
00:37:00,320 --> 00:37:05,759
Speaker 14: an unusual situation here because our immigration laws have been

711
00:37:06,560 --> 00:37:15,640
Speaker 14: ineffectively and in some instances unenthusiastically enforced by federal officials.

712
00:37:17,320 --> 00:37:21,359
Speaker 5: So there are people who are.

713
00:37:21,400 --> 00:37:25,640
Speaker 14: Subject to removal at any time if they are apprehended

714
00:37:25,680 --> 00:37:26,680
Speaker 14: and they go through the.

715
00:37:26,960 --> 00:37:29,239
Speaker 7: Proper procedures, but they have.

716
00:37:31,840 --> 00:37:35,719
Speaker 14: In their minds made a permanent home here and have

717
00:37:36,440 --> 00:37:41,279
Speaker 14: established roots. And that raises a humanitarian problem, and I

718
00:37:41,400 --> 00:37:45,160
Speaker 14: wonder if you could you could address that if I made.

719
00:37:45,040 --> 00:37:46,400
Speaker 4: One legal and one humanitarian.

720
00:37:46,480 --> 00:37:48,280
Speaker 10: The legal point is, if you look at those cases,

721
00:37:48,400 --> 00:37:51,080
Speaker 10: for example, Park Carson against Reid, Park against bar the

722
00:37:51,160 --> 00:37:53,719
Speaker 10: Es Court's decisions in Elkins and Tool against Marino, they

723
00:37:53,800 --> 00:37:57,560
Speaker 10: talk about the legal capacity to you know, to to

724
00:37:57,680 --> 00:38:00,480
Speaker 10: create a domicile excluding someone who may have this subjective

725
00:38:00,480 --> 00:38:04,520
Speaker 10: intent which otherwise would be determinative as being excluded. On

726
00:38:04,600 --> 00:38:06,759
Speaker 10: the humanitarian point, I would point out, as I said

727
00:38:06,760 --> 00:38:09,399
Speaker 10: at the beginning, Justice Aldo, that the United States rule

728
00:38:09,480 --> 00:38:14,240
Speaker 10: of nearly unrestricted birthright citizenship is an outlier among modern nations.

729
00:38:14,280 --> 00:38:17,399
Speaker 10: It's a very small minority of nations that have that rule.

730
00:38:17,480 --> 00:38:21,960
Speaker 10: For example, every every nation in Europe has a different rule.

731
00:38:22,000 --> 00:38:24,400
Speaker 10: And the notion that they have a huge humanitarian crisis

732
00:38:25,160 --> 00:38:27,759
Speaker 10: as a result of not having unrestricted birthright citizenship I

733
00:38:27,800 --> 00:38:30,319
Speaker 10: don't think is a strong argument, and I point out

734
00:38:30,400 --> 00:38:34,880
Speaker 10: obviously for you know, for reliance related reasons. This executive

735
00:38:34,960 --> 00:38:37,400
Speaker 10: order applies only prospectively, and we ask the Court to

736
00:38:37,480 --> 00:38:39,720
Speaker 10: rule only prospectively.

737
00:38:40,840 --> 00:38:41,600
Speaker 7: Just as sodomy or.

738
00:38:43,320 --> 00:38:44,160
Speaker 4: I agree with you what.

739
00:38:45,800 --> 00:38:49,840
Speaker 13: The European nation rule is. But England was always different,

740
00:38:50,080 --> 00:38:54,439
Speaker 13: wasn't it not until nineteen eighty three had changed. That's

741
00:38:54,520 --> 00:38:59,720
Speaker 13: not quite true. The Woe kim ark does a wonderful

742
00:38:59,800 --> 00:39:03,960
Speaker 13: job both laying out the English rule and you claim

743
00:39:04,040 --> 00:39:07,440
Speaker 13: it was different, But there isn't any treatises or scholars

744
00:39:07,480 --> 00:39:10,840
Speaker 13: who say it's different. English rule was always by birth.

745
00:39:11,160 --> 00:39:14,319
Speaker 13: Other people were not by other countries were not by birth.

746
00:39:15,000 --> 00:39:18,239
Speaker 13: Let me just go to the implications of what you're

747
00:39:18,320 --> 00:39:22,320
Speaker 13: asking us to do. You are asking us to overrule

748
00:39:22,520 --> 00:39:28,439
Speaker 13: Wan Kim arc Well, there, Wang Kim RK's parents were

749
00:39:29,080 --> 00:39:33,040
Speaker 13: domiciled in the US, but they owed loyalty to China.

750
00:39:33,719 --> 00:39:38,239
Speaker 13: They eventually returned to China, so they didn't have a

751
00:39:38,360 --> 00:39:43,040
Speaker 13: primary allegiance to the United States. So you're not asking that.

752
00:39:43,280 --> 00:39:48,680
Speaker 13: Are you asking us to overrule? Then our cases, one

753
00:39:48,760 --> 00:39:55,640
Speaker 13: of which said that a child of illegal aliens could

754
00:39:55,760 --> 00:40:01,520
Speaker 13: be was a citizen, you're asking us to overrule that?

755
00:40:02,920 --> 00:40:04,920
Speaker 4: No, First of all, we're not asking you over to

756
00:40:04,960 --> 00:40:08,960
Speaker 4: all WNG Kim, aren't we? But wet much of the reasoning.

757
00:40:09,400 --> 00:40:09,520
Speaker 13: Uh.

758
00:40:09,800 --> 00:40:12,040
Speaker 10: And then as for those later cases starting in nineteen

759
00:40:12,040 --> 00:40:14,200
Speaker 10: sixty six, where the court makes sort of you know,

760
00:40:14,400 --> 00:40:16,160
Speaker 10: unreasoned references.

761
00:40:15,719 --> 00:40:19,320
Speaker 13: To wait a minute within top you loose the respondent

762
00:40:19,480 --> 00:40:23,239
Speaker 13: unlawfully overstayed her visa and gave birth to a child.

763
00:40:23,360 --> 00:40:26,759
Speaker 13: Here the court harland the second rope. The child is,

764
00:40:26,840 --> 00:40:31,440
Speaker 13: of course an American citizen. That person wasn't domicile to

765
00:40:31,480 --> 00:40:34,600
Speaker 13: her lawfully. So you're asking us to overrule that came.

766
00:40:34,640 --> 00:40:36,720
Speaker 4: I wouldn't call it. I wouldn't say we're asking to overrule.

767
00:40:36,800 --> 00:40:39,080
Speaker 10: We think that's similar to a drive by jurisdictional ruling,

768
00:40:39,080 --> 00:40:41,840
Speaker 10: where there's a simple statement that's not debated, there's no

769
00:40:41,920 --> 00:40:44,960
Speaker 10: further analysis of it. There's really an assumption there, and

770
00:40:45,080 --> 00:40:46,960
Speaker 10: we think that's similar to cases the Court just assumes

771
00:40:47,080 --> 00:40:48,280
Speaker 10: urisdiction without discision.

772
00:40:48,760 --> 00:40:53,680
Speaker 13: We ruled in Trends that Indians could not become citizens.

773
00:40:54,600 --> 00:40:59,839
Speaker 13: The government then after began to unnaturalize many Indians who

774
00:41:00,040 --> 00:41:03,120
Speaker 13: had been sworn in as citizens. You ask us to

775
00:41:03,280 --> 00:41:08,239
Speaker 13: concentrate only on the prospective nature of the citizen's order.

776
00:41:08,960 --> 00:41:14,440
Speaker 13: But the logic of your position, if accepted, is that

777
00:41:14,680 --> 00:41:18,279
Speaker 13: the next present, this president or the next president, or

778
00:41:18,360 --> 00:41:22,280
Speaker 13: a Congress or someone else could decide that it shouldn't

779
00:41:22,280 --> 00:41:26,719
Speaker 13: be perspective. There would be nothing limiting that according to

780
00:41:26,840 --> 00:41:28,360
Speaker 13: your theory, if.

781
00:41:28,280 --> 00:41:31,400
Speaker 4: As we ask, the Court confines it's ruling to prospective relief.

782
00:41:31,280 --> 00:41:34,080
Speaker 13: Only you do know what I'm saying to you, don't, Yeah,

783
00:41:34,200 --> 00:41:36,359
Speaker 13: that's what you're asking us for a relief right now.

784
00:41:36,880 --> 00:41:43,000
Speaker 13: I'm asking whether the logic of your theory would permit

785
00:41:43,120 --> 00:41:47,880
Speaker 13: what happened after the Court's decision in trend that the

786
00:41:47,960 --> 00:41:53,279
Speaker 13: government could move to unnaturalize people who were born here

787
00:41:54,560 --> 00:41:55,920
Speaker 13: of illegal residents.

788
00:41:56,600 --> 00:41:58,520
Speaker 4: No, we believe the court should do what it did

789
00:41:58,600 --> 00:42:01,279
Speaker 4: in Sessions against Morales and not worried there was such

790
00:42:01,520 --> 00:42:04,040
Speaker 4: a ruling that would have deprived people who are already.

791
00:42:03,800 --> 00:42:07,440
Speaker 10: Citizens a citizenship. And the courtier supplies prospectively only, and

792
00:42:07,480 --> 00:42:08,000
Speaker 10: we think that's.

793
00:42:07,920 --> 00:42:08,920
Speaker 4: The approa course here.

794
00:42:09,320 --> 00:42:11,280
Speaker 13: But that's not what we did in Trend.

795
00:42:12,760 --> 00:42:15,480
Speaker 10: We think that the Sessions provides the proper course here,

796
00:42:15,520 --> 00:42:17,080
Speaker 10: and that's what we're asking. We are not asking for

797
00:42:17,160 --> 00:42:20,480
Speaker 10: any retroactive relief justice, Kayan.

798
00:42:21,120 --> 00:42:25,960
Speaker 15: But general, I think even your brief concedes that the

799
00:42:26,040 --> 00:42:30,080
Speaker 15: position you're taking now is a revisionist one with respect

800
00:42:30,200 --> 00:42:35,319
Speaker 15: to a substantial part of our history. And I think

801
00:42:35,360 --> 00:42:39,120
Speaker 15: that that's in large part because of womkim Ark and

802
00:42:39,239 --> 00:42:41,640
Speaker 15: the way people have read that case, which of course

803
00:42:41,840 --> 00:42:45,160
Speaker 15: was in the late nineteenth century and have read it

804
00:42:45,280 --> 00:42:49,560
Speaker 15: ever since then. And what that case suggests is, I mean,

805
00:42:49,560 --> 00:42:52,399
Speaker 15: there's a very clear rationale. You say, oh, it says

806
00:42:52,440 --> 00:42:55,000
Speaker 15: the word domicile a bunch of times, which it does.

807
00:42:55,120 --> 00:42:58,279
Speaker 15: It's a long opinion, says a lot of things, but

808
00:42:58,480 --> 00:43:01,880
Speaker 15: the rationale of the case is really quite clear. It

809
00:43:02,000 --> 00:43:05,160
Speaker 15: says there was this common law tradition. It came from England.

810
00:43:05,640 --> 00:43:06,520
Speaker 13: We know what it was.

811
00:43:06,880 --> 00:43:11,319
Speaker 15: Everybody got citizenship by birth except for a few discrete categories,

812
00:43:11,640 --> 00:43:14,480
Speaker 15: which were the ones that the Chief Justice mentioned at

813
00:43:14,520 --> 00:43:19,280
Speaker 15: the beginning, and that tradition carried over to the United States.

814
00:43:19,760 --> 00:43:22,880
Speaker 15: And then what the fourteenth Amendment did was accept that

815
00:43:23,000 --> 00:43:27,960
Speaker 15: tradition and not attempt to place any limitations on it.

816
00:43:28,520 --> 00:43:31,440
Speaker 15: And so that was the clear rationale, a clear rationale

817
00:43:31,880 --> 00:43:37,160
Speaker 15: that is diametrically different from your rationale. And everybody took

818
00:43:37,320 --> 00:43:40,400
Speaker 15: wankham ark to say that, and to say that as

819
00:43:40,440 --> 00:43:44,080
Speaker 15: a result of that, of course, birthrate citizenship was the rule.

820
00:43:44,120 --> 00:43:47,480
Speaker 15: And I think everybody has believed that for a long

821
00:43:47,600 --> 00:43:52,040
Speaker 15: long time. And I guess my question is this, you

822
00:43:52,280 --> 00:43:55,520
Speaker 15: have a story about what about the reasons why we

823
00:43:55,600 --> 00:43:58,800
Speaker 15: should go back to what you view as the original meaning,

824
00:44:00,120 --> 00:44:05,359
Speaker 15: the long history of this country's understanding about birthright citizenship.

825
00:44:06,920 --> 00:44:09,120
Speaker 15: What would it take What do you think it should

826
00:44:09,280 --> 00:44:15,680
Speaker 15: take to accept that story in terms of the magnitude

827
00:44:15,760 --> 00:44:19,040
Speaker 15: of the evidence that we would need to see in

828
00:44:19,360 --> 00:44:23,239
Speaker 15: order to accept this revisionist theory and in order to

829
00:44:23,400 --> 00:44:27,520
Speaker 15: change what I think people have thought the rule was

830
00:44:28,160 --> 00:44:29,360
Speaker 15: for more than a century.

831
00:44:30,040 --> 00:44:31,600
Speaker 10: Let me make two points in response to that one

832
00:44:31,800 --> 00:44:35,480
Speaker 10: historical and one legal historical point. I disagree with the

833
00:44:35,480 --> 00:44:37,600
Speaker 10: way you've characterized the understanding of Wan Kim Mark, and

834
00:44:37,640 --> 00:44:41,759
Speaker 10: I point to something that's emphasizing Thearniki's Briefs, which is

835
00:44:42,080 --> 00:44:46,320
Speaker 10: in nineteen twenty one, Richard Flornoy, who becomes a senior

836
00:44:46,360 --> 00:44:49,399
Speaker 10: State Department official in the Roosevelt administration and pushes their

837
00:44:49,600 --> 00:44:52,839
Speaker 10: theory as the temporary sojourners, writes a law review article

838
00:44:52,880 --> 00:44:55,640
Speaker 10: in nineteen twenty one where he says, I think that

839
00:44:55,760 --> 00:44:59,160
Speaker 10: children of temporary visitors should be citizens, but he admits

840
00:44:59,239 --> 00:45:02,040
Speaker 10: that is not the understanding Walkamark. He admits Wonkamark did

841
00:45:02,080 --> 00:45:04,680
Speaker 10: not hold that, and he admits that there's an array

842
00:45:04,719 --> 00:45:07,360
Speaker 10: of authorities that go against him. He talks about careful

843
00:45:07,400 --> 00:45:10,960
Speaker 10: and reliable high authorities, and that's referring to the consensus

844
00:45:11,000 --> 00:45:12,920
Speaker 10: that we point out in pages twenty six twenty eight

845
00:45:12,920 --> 00:45:15,359
Speaker 10: of a brief. We've got twelve treatises from eighteen eighty

846
00:45:15,400 --> 00:45:17,840
Speaker 10: one to nineteen twenty two that ol say, including for

847
00:45:17,960 --> 00:45:21,319
Speaker 10: decades after Walkimmark, that's say, children of temporary sojourners are

848
00:45:21,360 --> 00:45:23,719
Speaker 10: not included. What happens when he nineteen twenty one in

849
00:45:23,760 --> 00:45:27,080
Speaker 10: the nineteen thirties, Well, mister Flornoi became a senior State's

850
00:45:27,160 --> 00:45:29,840
Speaker 10: Party official, and he adopted that as the policy of

851
00:45:29,920 --> 00:45:32,880
Speaker 10: the Roosevelt administrations. So their argument is basically saying there

852
00:45:32,920 --> 00:45:35,239
Speaker 10: wasn't this consensus going back to eighteen ninety eight.

853
00:45:35,440 --> 00:45:37,880
Speaker 4: The consensus, as their own author admits, goes entirely in

854
00:45:37,920 --> 00:45:41,600
Speaker 4: the opposite direction for fifty years, right, for fifty years

855
00:45:41,920 --> 00:45:44,360
Speaker 4: from the framing of the clause through the nineteen twenties,

856
00:45:44,400 --> 00:45:47,400
Speaker 4: maybe sixty years. The general understanding when it comes to

857
00:45:47,520 --> 00:45:48,400
Speaker 4: what's an issue.

858
00:45:48,200 --> 00:45:50,520
Speaker 10: Here and was not an issue in Walkam Mark is

859
00:45:50,680 --> 00:45:53,120
Speaker 10: the children of temporary visitors do not become.

860
00:45:52,920 --> 00:45:54,200
Speaker 4: Citizens under the clause.

861
00:45:55,080 --> 00:45:58,279
Speaker 10: And then the legal point you refer to the sort

862
00:45:58,280 --> 00:46:00,719
Speaker 10: of concept of temporary local lead Jens, and they rely

863
00:46:00,920 --> 00:46:03,640
Speaker 10: on the Schooner exchange this theory that you've got temporary

864
00:46:03,719 --> 00:46:06,000
Speaker 10: local allegiance. But if you actually look look at page

865
00:46:06,040 --> 00:46:08,560
Speaker 10: five seventy two of the Congressional record, right at the

866
00:46:08,600 --> 00:46:12,640
Speaker 10: beginning introducing the Civil Rights Act, Senator Trumbull says, I said,

867
00:46:12,960 --> 00:46:14,400
Speaker 10: not so much to any foreign power.

868
00:46:14,880 --> 00:46:17,560
Speaker 4: I wanted to say, bird born in the United States,

869
00:46:18,000 --> 00:46:20,720
Speaker 4: and you know, owing allegiance to the United States.

870
00:46:20,800 --> 00:46:23,200
Speaker 10: But I was aware that there's a quote a sort

871
00:46:23,239 --> 00:46:25,440
Speaker 10: of allegiance from persons temporary.

872
00:46:25,040 --> 00:46:27,200
Speaker 4: Resident in the United States whom we have no right

873
00:46:27,280 --> 00:46:30,759
Speaker 4: to make citizens. So Senator Trumble says, the reason I haven't.

874
00:46:30,480 --> 00:46:33,320
Speaker 10: Adopted the language and meaning that they say should be

875
00:46:33,400 --> 00:46:36,880
Speaker 10: packed into these provisions is that everybody knows that the

876
00:46:36,960 --> 00:46:38,360
Speaker 10: children of temporary visitors.

877
00:46:38,080 --> 00:46:39,000
Speaker 4: Should not be citizens.

878
00:46:39,560 --> 00:46:40,200
Speaker 5: Thank you, General.

879
00:46:41,000 --> 00:46:44,400
Speaker 16: As the scursuch, just to follow up on that point, General,

880
00:46:45,080 --> 00:46:48,960
Speaker 16: one interesting counterpoint about the understanding one ken ark that

881
00:46:49,120 --> 00:46:52,560
Speaker 16: followed with respect to temporary sojournals. I take you've got

882
00:46:52,719 --> 00:46:57,080
Speaker 16: your well taken points. But there was of course John

883
00:46:57,160 --> 00:47:01,560
Speaker 16: Marshall Harlan, the great dissenter, who descended in Wan kim

884
00:47:01,600 --> 00:47:05,920
Speaker 16: Mark and later gave a bunch of lectures, and he

885
00:47:06,320 --> 00:47:09,800
Speaker 16: posed the question about the sojourners. What supposed an English

886
00:47:09,880 --> 00:47:12,600
Speaker 16: father and mother went down to the hot springs to

887
00:47:12,640 --> 00:47:15,080
Speaker 16: get rid of the gout, and while there they have

888
00:47:15,120 --> 00:47:18,360
Speaker 16: a child. Now back in England, is that child this

889
00:47:18,520 --> 00:47:20,680
Speaker 16: is some of the United States born of the jurisdiction

890
00:47:20,800 --> 00:47:24,280
Speaker 16: thereof by a mere accident of birth. And he says,

891
00:47:25,000 --> 00:47:29,680
Speaker 16: under one kim Mark he is. And he continues, I

892
00:47:29,880 --> 00:47:33,080
Speaker 16: was one of the minority, and of course I was wrong.

893
00:47:34,160 --> 00:47:38,239
Speaker 16: Now I'm sure that was tongue in cheek, But now

894
00:47:38,520 --> 00:47:39,160
Speaker 16: what do you do with that?

895
00:47:39,680 --> 00:47:41,440
Speaker 4: I draw the I mean, I say two things and

896
00:47:41,520 --> 00:47:41,960
Speaker 4: responds to that.

897
00:47:42,080 --> 00:47:43,800
Speaker 10: First of all, he gave a speech, but we have

898
00:47:44,000 --> 00:47:46,920
Speaker 10: twelve uncontradicted treatises that say the opposite.

899
00:47:46,960 --> 00:47:49,080
Speaker 4: That that is not what Wonkamark means, and that's not

900
00:47:49,160 --> 00:47:50,040
Speaker 4: the meaning of the clause.

901
00:47:50,280 --> 00:47:52,359
Speaker 10: But also i'd make a more fundamental point me you're

902
00:47:52,400 --> 00:47:55,400
Speaker 10: looking at wankim mark one of the descent has this

903
00:47:55,920 --> 00:47:59,360
Speaker 10: dominant theme that really dom thing like you can't be

904
00:47:59,440 --> 00:48:02,480
Speaker 10: doing this because you can't make the we all agree

905
00:48:02,680 --> 00:48:05,360
Speaker 10: or it's obvious that the children of temporary resident temporary

906
00:48:05,440 --> 00:48:07,120
Speaker 10: visitors do not become citizens.

907
00:48:07,320 --> 00:48:09,200
Speaker 4: And how does the majority opinion address that?

908
00:48:09,280 --> 00:48:12,520
Speaker 10: It says domicile three times when it recites the legal rule,

909
00:48:12,600 --> 00:48:15,720
Speaker 10: it says permanent residents and domicile, and it decides to holding.

910
00:48:16,080 --> 00:48:18,359
Speaker 10: So the court should be bound by what it says.

911
00:48:18,440 --> 00:48:20,200
Speaker 10: This is what we're deciding again a page seventy five

912
00:48:20,200 --> 00:48:22,160
Speaker 10: and says this is the single question. Now there's been

913
00:48:22,200 --> 00:48:24,120
Speaker 10: a lot of discussion up to that point, but at

914
00:48:24,120 --> 00:48:26,520
Speaker 10: the very end they said the single question we've decided

915
00:48:27,000 --> 00:48:30,279
Speaker 10: is this citizenship says the children of Chinese immigrants with

916
00:48:30,400 --> 00:48:34,040
Speaker 10: a permanent residence and domicile in the United States.

917
00:48:34,480 --> 00:48:38,120
Speaker 16: Do you think Native Americans today are birthright citizens under

918
00:48:38,160 --> 00:48:39,879
Speaker 16: your test and your friends test?

919
00:48:40,760 --> 00:48:41,640
Speaker 5: I think so.

920
00:48:42,000 --> 00:48:44,520
Speaker 4: I mean, obviously they've been granted citizenship by statute.

921
00:48:44,680 --> 00:48:47,239
Speaker 16: Beside the statue, do you think they're birthright citizens now?

922
00:48:47,280 --> 00:48:49,880
Speaker 10: I think the clear understanding that everybody agrees and the

923
00:48:49,960 --> 00:48:52,440
Speaker 10: congressional debates is that the children of tribal Indians are

924
00:48:52,520 --> 00:48:53,120
Speaker 10: not birth right now.

925
00:48:53,160 --> 00:48:56,080
Speaker 16: I understand that's what they said. But your test is

926
00:48:56,200 --> 00:49:00,000
Speaker 16: the domicile of the parents, and that would be the test.

927
00:49:00,160 --> 00:49:01,759
Speaker 16: Do you have a supply today right?

928
00:49:03,160 --> 00:49:03,359
Speaker 5: Yes?

929
00:49:03,520 --> 00:49:07,880
Speaker 4: Yes, So a tribal Indian, for example, gives up allegiance.

930
00:49:07,400 --> 00:49:10,880
Speaker 16: To born today birthright citizens.

931
00:49:11,800 --> 00:49:14,920
Speaker 10: I think so on our test, very lawfully domiciled here,

932
00:49:15,560 --> 00:49:18,120
Speaker 10: and then I have to think that through. I'll take

933
00:49:18,160 --> 00:49:18,760
Speaker 10: that's my reaction.

934
00:49:18,840 --> 00:49:22,239
Speaker 16: I'll take the yes, that's all right, And then I

935
00:49:22,360 --> 00:49:25,240
Speaker 16: just want to ask you quickly about the INA adopted

936
00:49:25,320 --> 00:49:28,320
Speaker 16: in nineteen forty and nineteen fifty two. It uses the

937
00:49:28,400 --> 00:49:33,120
Speaker 16: same term as the citizenship clause, and one might have

938
00:49:33,160 --> 00:49:35,920
Speaker 16: a pretty good argument I'm sure you got some arguments

939
00:49:35,960 --> 00:49:37,880
Speaker 16: only long just these lines, that it should be understood

940
00:49:37,880 --> 00:49:40,840
Speaker 16: to mean whatever it meant in eighteen sixty eight. But

941
00:49:40,960 --> 00:49:43,360
Speaker 16: there was a lot of water over the dam between

942
00:49:43,440 --> 00:49:46,719
Speaker 16: those two things, and as your brief points out, by

943
00:49:46,760 --> 00:49:52,759
Speaker 16: the Roosevelt administration, there's a pretty strong juice solely move,

944
00:49:54,320 --> 00:49:57,520
Speaker 16: that is to say that the thin concept of jurisdiction

945
00:49:57,760 --> 00:50:02,120
Speaker 16: power over is enough a broader understanding of birth right.

946
00:50:02,840 --> 00:50:06,359
Speaker 16: Would there be an argument for reading that statue under

947
00:50:06,440 --> 00:50:10,120
Speaker 16: its original plane meaning at the time nineteen forty nineteen

948
00:50:10,200 --> 00:50:14,040
Speaker 16: fifty two, to perhaps have a different meaning than the Constitution.

949
00:50:14,560 --> 00:50:17,560
Speaker 10: We don't think that's the best interpretation, for give two reasons.

950
00:50:17,640 --> 00:50:20,400
Speaker 10: One is it would be very surprising if a statute

951
00:50:20,440 --> 00:50:23,720
Speaker 10: that says exactly the constitutional phrase under the jurisdiction thereof

952
00:50:23,719 --> 00:50:26,800
Speaker 10: were interpreted means something totally different, or to ossify a

953
00:50:27,040 --> 00:50:29,719
Speaker 10: then current misunderstanding of the clause. We think that the

954
00:50:30,200 --> 00:50:33,399
Speaker 10: best analogy here is probably state long arm statues. Take

955
00:50:33,440 --> 00:50:36,360
Speaker 10: a sort of non controversial example. State long arm statutes

956
00:50:36,440 --> 00:50:38,960
Speaker 10: routine they say we're going to exercise personal jurisdiction to

957
00:50:39,040 --> 00:50:42,120
Speaker 10: the extensive due process. It takes the constitutional standard and

958
00:50:42,160 --> 00:50:44,840
Speaker 10: it puts it in the statue, and nobody thinks that

959
00:50:44,880 --> 00:50:48,360
Speaker 10: those ossify you know, are limited to the precedent this

960
00:50:48,480 --> 00:50:49,279
Speaker 10: Court's presence at.

961
00:50:49,239 --> 00:50:50,040
Speaker 4: The time they are enacted.

962
00:50:50,120 --> 00:50:54,560
Speaker 10: Everyone thinks that that phrase due process incorporates, you know,

963
00:50:54,760 --> 00:50:56,560
Speaker 10: the developing law of due process.

964
00:50:56,280 --> 00:50:58,680
Speaker 4: And minimum context and so forth, including from this court.

965
00:50:58,880 --> 00:50:59,719
Speaker 4: So we think that's the best.

966
00:50:59,800 --> 00:51:03,640
Speaker 10: Now, when you're looking at the constitutional phrase itself and

967
00:51:03,760 --> 00:51:07,360
Speaker 10: you take it out of a freighted context, the natural

968
00:51:07,440 --> 00:51:10,359
Speaker 10: interpretation to say this means this reflects the objective meaning

969
00:51:10,400 --> 00:51:12,720
Speaker 10: of the Constitution, and the objective meeting of the Constitution

970
00:51:12,840 --> 00:51:14,719
Speaker 10: is its original public meeting in eighteen sixty six.

971
00:51:14,840 --> 00:51:17,880
Speaker 16: Do you see notable counterpoints to that argument.

972
00:51:18,960 --> 00:51:20,400
Speaker 4: I'm sure there are arguments on the other side, and

973
00:51:20,480 --> 00:51:21,719
Speaker 4: you address them in their brief.

974
00:51:22,000 --> 00:51:23,759
Speaker 16: So you're really at the end of the day, then

975
00:51:23,920 --> 00:51:27,200
Speaker 16: this is a straight up constitutional ruling you want from

976
00:51:27,280 --> 00:51:29,120
Speaker 16: this court or when loser for.

977
00:51:29,120 --> 00:51:31,960
Speaker 4: A Yeah, we think that the statue of the Constitution

978
00:51:32,080 --> 00:51:32,719
Speaker 4: means the same thing.

979
00:51:32,760 --> 00:51:35,239
Speaker 10: If the court disagrees, obviously we prefer and a versus

980
00:51:35,280 --> 00:51:36,880
Speaker 10: ruling of the Court's going to do that on a

981
00:51:36,960 --> 00:51:39,279
Speaker 10: statutory basis, on a constitutional basis.

982
00:51:39,120 --> 00:51:42,400
Speaker 16: But I you've just disavowed that in your responses to

983
00:51:42,480 --> 00:51:44,759
Speaker 16: me by saying that that's not an available option.

984
00:51:44,880 --> 00:51:47,640
Speaker 4: It's the way. Yes, the Court will have.

985
00:51:47,640 --> 00:51:49,560
Speaker 10: To disagree with our statutory position, which is that it

986
00:51:49,640 --> 00:51:51,160
Speaker 10: means the same thing as the Constitution. But if the

987
00:51:51,200 --> 00:51:53,520
Speaker 10: Court were to do that, then the natural course would

988
00:51:53,520 --> 00:51:55,520
Speaker 10: probably be a rule of statutory grounds alone. Now we

989
00:51:55,560 --> 00:51:57,480
Speaker 10: think they mean the same thing, and we've got arguments

990
00:51:57,520 --> 00:51:59,720
Speaker 10: for that, including I think the analogy I just right reference.

991
00:52:00,960 --> 00:52:02,920
Speaker 5: This is kapitol general.

992
00:52:03,000 --> 00:52:05,080
Speaker 20: How should we think about the text of the Fourteenth

993
00:52:05,120 --> 00:52:08,480
Speaker 20: Amendment subject of the jurisdiction thereof as distinct from the

994
00:52:08,600 --> 00:52:12,439
Speaker 20: different language of the Civil Rights Act of eighteen sixty six,

995
00:52:12,640 --> 00:52:15,840
Speaker 20: which refers, as you know, to persons not subject to

996
00:52:15,880 --> 00:52:16,920
Speaker 20: any foreign power.

997
00:52:17,920 --> 00:52:23,520
Speaker 5: Those texts are, on their face different in.

998
00:52:23,600 --> 00:52:26,440
Speaker 20: The history that Justice Kagan referred to might have developed

999
00:52:26,760 --> 00:52:29,680
Speaker 20: quite a bit differently if the Fourteenth Amendments text had

1000
00:52:29,840 --> 00:52:33,000
Speaker 20: used the phrase that was in the Civil Rights Act.

1001
00:52:34,120 --> 00:52:36,400
Speaker 10: That's an excellent point, and this Court has held in

1002
00:52:36,520 --> 00:52:39,960
Speaker 10: multiple cases hurt against Hodge and General Building Contractors, has

1003
00:52:40,040 --> 00:52:42,600
Speaker 10: recognized that they are intended and they did mean the

1004
00:52:42,680 --> 00:52:45,520
Speaker 10: same thing. And that's powerfully reinforced by the congressional debates

1005
00:52:45,760 --> 00:52:48,120
Speaker 10: where you really what they're discussing is they said they

1006
00:52:48,160 --> 00:52:51,040
Speaker 10: were dissatisfied with the language and the Civil Rights Act

1007
00:52:51,160 --> 00:52:54,120
Speaker 10: because the phrase indians not text they thought was ambiguous,

1008
00:52:54,360 --> 00:52:56,640
Speaker 10: and so they switched to the affirmative statement as opposed

1009
00:52:56,680 --> 00:52:59,919
Speaker 10: to the negative statement, the affirm subject of the jurisdiction thereof.

1010
00:53:00,160 --> 00:53:02,480
Speaker 10: But there's express statements in the Congressional record ascension that

1011
00:53:02,719 --> 00:53:04,560
Speaker 10: we're doing the same thing, and that is what this

1012
00:53:04,680 --> 00:53:06,200
Speaker 10: Court's case law has reflected.

1013
00:53:06,320 --> 00:53:07,680
Speaker 5: Why didn't they say the same thing?

1014
00:53:08,760 --> 00:53:12,640
Speaker 10: Again, it appears they preferred these sort of positive formulations

1015
00:53:12,640 --> 00:53:14,920
Speaker 10: sunder the jurisdiction thereof, as opposed to not stuvage any

1016
00:53:14,960 --> 00:53:17,560
Speaker 10: foreign power. And again there's a deep concern and lengthy

1017
00:53:17,600 --> 00:53:20,759
Speaker 10: discussion of the potential ambiguity in the Civil Rights Acting.

1018
00:53:20,800 --> 00:53:23,600
Speaker 4: They want to eliminated ambiguity, but do the same thing.

1019
00:53:23,640 --> 00:53:26,360
Speaker 4: And I think that that's very strongly reflected in those debates.

1020
00:53:26,800 --> 00:53:29,600
Speaker 20: By the time of the nineteen forty and nineteen fifty

1021
00:53:29,680 --> 00:53:37,320
Speaker 20: two congressional actions where Congress repeats subject to the jurisdiction thereof.

1022
00:53:38,080 --> 00:53:42,239
Speaker 20: Given Wan kim ark, one might have expected Congress to

1023
00:53:42,440 --> 00:53:46,440
Speaker 20: use a different phrase if it wanted to try to

1024
00:53:46,600 --> 00:53:51,320
Speaker 20: disagree with one kim Mark on what the scope of

1025
00:53:51,719 --> 00:53:56,480
Speaker 20: birthright citizenship or the scope of citizenship should be. And

1026
00:53:56,640 --> 00:54:01,000
Speaker 20: yet Congress repeats that same language, knowing what the interpretation

1027
00:54:01,360 --> 00:54:03,440
Speaker 20: had been. So how are we to think about that?

1028
00:54:03,840 --> 00:54:06,160
Speaker 4: I think bake into that question is an understanding.

1029
00:54:06,160 --> 00:54:08,359
Speaker 10: I think that was reflected in Justice Kegan's earlier question

1030
00:54:08,520 --> 00:54:11,120
Speaker 10: that everybody understood that wonkm Mark commented that in the

1031
00:54:11,239 --> 00:54:14,399
Speaker 10: history I talked about, I think refutes that really there's

1032
00:54:14,400 --> 00:54:17,400
Speaker 10: a consensus that goes our way for decades and decades

1033
00:54:17,840 --> 00:54:21,160
Speaker 10: after the adoption of the amendment, after Walt cam Mark

1034
00:54:21,200 --> 00:54:23,760
Speaker 10: on the specific question of the children of temporary visitors,

1035
00:54:24,320 --> 00:54:26,600
Speaker 10: and it's really not until and again their author in

1036
00:54:26,640 --> 00:54:28,800
Speaker 10: nineteen twenty one is saying, hey, the other side is

1037
00:54:28,840 --> 00:54:29,520
Speaker 10: the new census.

1038
00:54:30,000 --> 00:54:34,120
Speaker 20: I'm sorry, sorry, go ahead, but there's executive branch interpretations

1039
00:54:34,200 --> 00:54:37,800
Speaker 20: and others. And if you're in Congress in nineteen forty,

1040
00:54:37,840 --> 00:54:42,360
Speaker 20: in nineteen fifty two and you want to limit the

1041
00:54:42,480 --> 00:54:46,080
Speaker 20: scope of wan kim Mark or to eliminate ambiguity, why

1042
00:54:46,160 --> 00:54:50,920
Speaker 20: do you repeat the same language rather than choosing something different.

1043
00:54:51,000 --> 00:54:53,560
Speaker 20: For example, you could use the language from the Civil

1044
00:54:53,680 --> 00:54:57,120
Speaker 20: Rights Act of eighteen sixty six or some similar formulation.

1045
00:54:57,480 --> 00:55:00,640
Speaker 20: If your idea in nineteen forty nine te teen fifty

1046
00:55:00,680 --> 00:55:05,560
Speaker 20: two was to not have ambiguity or not have an

1047
00:55:05,640 --> 00:55:07,239
Speaker 20: overly broad scope.

1048
00:55:07,160 --> 00:55:09,720
Speaker 10: I think I think if you look at the structure

1049
00:55:09,719 --> 00:55:12,440
Speaker 10: of that statute, where it's fourteen oh one A and

1050
00:55:12,560 --> 00:55:14,920
Speaker 10: then B through H A, it says, these are the

1051
00:55:14,960 --> 00:55:17,920
Speaker 10: people who are entitled the birthright citizenship. A is the

1052
00:55:18,040 --> 00:55:20,800
Speaker 10: constitutional standard, and then B through H or all the

1053
00:55:20,880 --> 00:55:23,080
Speaker 10: categories that Congress is super added to that. I think

1054
00:55:23,120 --> 00:55:26,719
Speaker 10: the natural inference is that Congress is codifying which was

1055
00:55:26,760 --> 00:55:29,400
Speaker 10: consciously doing in nineteen forty one, pulling all the naturalization

1056
00:55:29,600 --> 00:55:32,399
Speaker 10: rules and immigration rules together into one statute, and said,

1057
00:55:32,560 --> 00:55:35,400
Speaker 10: you go to one place. Here's who is a birthright citizen.

1058
00:55:35,600 --> 00:55:38,520
Speaker 10: A those who are guaranteed that right by the citizenship clause,

1059
00:55:38,760 --> 00:55:40,520
Speaker 10: and B through H are the ones that Congress has

1060
00:55:40,520 --> 00:55:43,120
Speaker 10: added through its naturalization power. So that inference, to me,

1061
00:55:43,320 --> 00:55:47,040
Speaker 10: says A is merely is not trying to change or

1062
00:55:47,120 --> 00:55:49,680
Speaker 10: alter the constitutional standards, just saying, hey, the baseline is

1063
00:55:49,719 --> 00:55:52,040
Speaker 10: that what the Constitution says, and we codify that, and

1064
00:55:52,080 --> 00:55:54,160
Speaker 10: then we move on to the new categories of.

1065
00:55:54,200 --> 00:55:58,680
Speaker 5: What relevance if any. Do you think section five of

1066
00:55:58,760 --> 00:56:01,880
Speaker 5: the Fourteenth Amendment here that gives Congress.

1067
00:56:01,560 --> 00:56:06,239
Speaker 20: The power to enforce the article the Fourteenth Amendment by

1068
00:56:06,280 --> 00:56:07,480
Speaker 20: appropriate legislation.

1069
00:56:07,600 --> 00:56:11,600
Speaker 5: Does that give Congress room here? Or do you not

1070
00:56:11,760 --> 00:56:12,040
Speaker 5: think so?

1071
00:56:12,960 --> 00:56:15,279
Speaker 10: I do think that a ruling in our favor would

1072
00:56:15,360 --> 00:56:17,200
Speaker 10: leave room for Congress. I don't think you'd have to

1073
00:56:17,280 --> 00:56:19,680
Speaker 10: rely on Section five. I think that Congress has its

1074
00:56:19,719 --> 00:56:22,600
Speaker 10: own inherent power to grant citizenship by statue. So if

1075
00:56:22,640 --> 00:56:24,320
Speaker 10: the Court were to rule in our favor for the

1076
00:56:24,360 --> 00:56:27,280
Speaker 10: classes of individuals that they say should be covered, Congress

1077
00:56:27,320 --> 00:56:28,279
Speaker 10: has a lattitue to do that.

1078
00:56:28,440 --> 00:56:31,120
Speaker 20: How much room do you think section five gives, if any?

1079
00:56:31,360 --> 00:56:34,600
Speaker 20: And it may not be any Congress to interpret the

1080
00:56:34,719 --> 00:56:39,480
Speaker 20: phrase subject to the jurisdiction thereof or to define that

1081
00:56:39,680 --> 00:56:41,799
Speaker 20: does is that relevant at all?

1082
00:56:42,160 --> 00:56:43,840
Speaker 10: It's a great question. I'm thinking about it for the

1083
00:56:43,880 --> 00:56:45,440
Speaker 10: first time. I assume it would be governed by the

1084
00:56:45,440 --> 00:56:48,239
Speaker 10: congruis and proportionality tests from this Court's case law. How

1085
00:56:48,280 --> 00:56:50,160
Speaker 10: that would apply here, I don't know, and I don't

1086
00:56:50,160 --> 00:56:52,240
Speaker 10: think it's presented because our contention is that the statue

1087
00:56:52,280 --> 00:56:54,320
Speaker 10: means exactly the same thing. If anything, is congruit and

1088
00:56:54,400 --> 00:56:56,440
Speaker 10: proportional what's not, and I think the court held that

1089
00:56:56,480 --> 00:56:57,680
Speaker 10: in the United States against Georgia.

1090
00:56:58,680 --> 00:57:03,239
Speaker 20: You've mentioned several times the practices of other countries, and

1091
00:57:03,360 --> 00:57:09,560
Speaker 20: that's obviously, as a policy matter, supports what you're arguing here.

1092
00:57:09,680 --> 00:57:13,120
Speaker 5: But obviously we try to interpret.

1093
00:57:14,200 --> 00:57:18,320
Speaker 20: American law with American precedent based on American history. That's

1094
00:57:18,320 --> 00:57:19,760
Speaker 20: certainly what I try to do, and I think you

1095
00:57:19,920 --> 00:57:23,240
Speaker 20: try to do. And so why should we be thinking

1096
00:57:23,280 --> 00:57:25,480
Speaker 20: about even though as a policy matter, I get the

1097
00:57:25,560 --> 00:57:30,040
Speaker 20: point thinking about, gee, European countries don't have this, or

1098
00:57:30,480 --> 00:57:33,000
Speaker 20: most other countries, many other countries in the world don't

1099
00:57:33,080 --> 00:57:36,480
Speaker 20: have this. Doesn't that I guess I'm not seeing the

1100
00:57:36,600 --> 00:57:41,120
Speaker 20: relevance as a legal constitutional interpretive matter necessarily, although I

1101
00:57:41,440 --> 00:57:44,960
Speaker 20: understand it's a very good point as a policy matter.

1102
00:57:44,880 --> 00:57:47,560
Speaker 10: Yeah, I largely agree with that, and you can view

1103
00:57:47,600 --> 00:57:50,520
Speaker 10: it as being raised preemptively defensively I'm going first, But

1104
00:57:50,640 --> 00:57:53,440
Speaker 10: obviously the other side there, Amiki say, you know, make

1105
00:57:53,520 --> 00:57:55,680
Speaker 10: a prediction end of the world type predictions, and our

1106
00:57:55,760 --> 00:57:58,640
Speaker 10: point is, you know, it's a very small minority because

1107
00:57:58,720 --> 00:58:02,280
Speaker 10: almost every country, certainly all all European countries have a

1108
00:58:02,320 --> 00:58:05,160
Speaker 10: different rule in the world hasn't ended there the.

1109
00:58:05,200 --> 00:58:07,680
Speaker 20: Other side last one. The other side relies heavily, of

1110
00:58:07,760 --> 00:58:14,400
Speaker 20: course on wankim ark and you disagree with their interpretation. Oftentimes,

1111
00:58:14,600 --> 00:58:17,880
Speaker 20: when you are dealing with a constitutional precedent like this,

1112
00:58:18,120 --> 00:58:21,080
Speaker 20: you might argue, we disagree with that interpretation, but if

1113
00:58:21,120 --> 00:58:24,960
Speaker 20: you adopt their interpretation or agree with their interpretation of

1114
00:58:25,040 --> 00:58:29,200
Speaker 20: that precedent, you should overrule it. And you haven't made

1115
00:58:29,240 --> 00:58:32,640
Speaker 20: that argument here, and I'm just giving you an opportunity

1116
00:58:32,680 --> 00:58:34,200
Speaker 20: to explain why you haven't.

1117
00:58:34,160 --> 00:58:37,320
Speaker 10: Because we think it's totally unambiguous in wankim market. The

1118
00:58:37,440 --> 00:58:41,760
Speaker 10: holding is relates to domiciled aliens, and so we strongly

1119
00:58:41,840 --> 00:58:44,320
Speaker 10: agree with the holding. We think domicile was the touchdowne

1120
00:58:44,480 --> 00:58:46,280
Speaker 10: and we think that's not a coincidence for the reason

1121
00:58:46,400 --> 00:58:48,160
Speaker 10: I and maybe speculate a little bit when I was

1122
00:58:48,160 --> 00:58:51,640
Speaker 10: talking to Justice Gorsitch about how the descent raises this,

1123
00:58:51,920 --> 00:58:54,200
Speaker 10: and then the majority is like, we're putting domicile in

1124
00:58:54,240 --> 00:58:56,080
Speaker 10: there so we know that the absurd conclusion that they

1125
00:58:56,200 --> 00:58:57,760
Speaker 10: say would come from this isn't there.

1126
00:58:58,000 --> 00:59:00,720
Speaker 4: But also domicile as kind of.

1127
00:59:00,760 --> 00:59:05,480
Speaker 10: The sort of relationship that creates this relationship of allegiance

1128
00:59:05,520 --> 00:59:07,400
Speaker 10: that makes you part of a political community if you're

1129
00:59:07,440 --> 00:59:10,680
Speaker 10: an alien from another country, that's deeply rooted in their

1130
00:59:10,760 --> 00:59:12,840
Speaker 10: understanding why they're doing it. They talk about domicil and

1131
00:59:12,920 --> 00:59:15,840
Speaker 10: yikuo against Hopkins in the eighteen ninety two in eighteen

1132
00:59:15,920 --> 00:59:18,000
Speaker 10: ninety three cases, and there's this deeply rood to understanding

1133
00:59:18,000 --> 00:59:19,840
Speaker 10: again that goes all the way back to the early

1134
00:59:19,960 --> 00:59:20,760
Speaker 10: nineteenth century.

1135
00:59:21,080 --> 00:59:22,800
Speaker 4: So we think that's a really important conception.

1136
00:59:22,920 --> 00:59:25,240
Speaker 10: So, I mean, we disagree with some of the dicta

1137
00:59:25,320 --> 00:59:27,000
Speaker 10: in walkim Mark that we discussed, and we think there's

1138
00:59:27,040 --> 00:59:29,200
Speaker 10: dicta that goes our way that the other side overlooks.

1139
00:59:29,480 --> 00:59:31,400
Speaker 4: And we're not asking the court to overrule dicta. We

1140
00:59:31,480 --> 00:59:32,560
Speaker 4: just say, don't follow.

1141
00:59:32,400 --> 00:59:35,440
Speaker 10: Erroneous dicta and don't apply to this brand new situation

1142
00:59:35,560 --> 00:59:37,120
Speaker 10: that was not decided in waltkim Mark.

1143
00:59:37,480 --> 00:59:37,800
Speaker 5: Thank you.

1144
00:59:38,480 --> 00:59:39,080
Speaker 4: That's the spare it.

1145
00:59:39,920 --> 00:59:41,920
Speaker 17: So, General, Sarah, want to zoom out a little bit

1146
00:59:42,280 --> 00:59:45,720
Speaker 17: and think about you solely and usanguinous. So, as I

1147
00:59:45,880 --> 00:59:48,080
Speaker 17: understand it, at the time of the fourteenth Amendment, those

1148
00:59:48,120 --> 00:59:50,640
Speaker 17: were the two dominant approaches. You know, you solely the

1149
00:59:50,720 --> 00:59:55,280
Speaker 17: English common law roughly following the soil, you sanguinous roughly,

1150
00:59:55,520 --> 01:00:00,760
Speaker 17: citizenship following the parents. Now you solely was very generous

1151
01:00:00,760 --> 01:00:03,280
Speaker 17: on the soil the English common law, and so it

1152
01:00:03,400 --> 01:00:06,200
Speaker 17: extended citizenship those to those born there who may not

1153
01:00:06,480 --> 01:00:11,240
Speaker 17: have been born of parent citizens. But use sanguinous. You know,

1154
01:00:11,400 --> 01:00:13,960
Speaker 17: if parents who are citizens and had a child abroad,

1155
01:00:14,720 --> 01:00:19,720
Speaker 17: then that child citizenship followed the parents. So one thing

1156
01:00:19,800 --> 01:00:23,320
Speaker 17: that's puzzling me about your argument when I think about

1157
01:00:23,320 --> 01:00:25,720
Speaker 17: the ratification of the fourteenth Amendment, in many ways it

1158
01:00:25,760 --> 01:00:28,920
Speaker 17: would have made sense for them, and you acknowledge the

1159
01:00:29,000 --> 01:00:31,800
Speaker 17: US sanguinous in citing Vittel, it would have made sense

1160
01:00:31,840 --> 01:00:33,680
Speaker 17: in some ways for them to say, Okay, we're going

1161
01:00:33,720 --> 01:00:35,840
Speaker 17: to follow if they wanted to accomplish what you're saying

1162
01:00:35,880 --> 01:00:38,400
Speaker 17: they wanted to accomplish, you could say, well, we're going

1163
01:00:38,480 --> 01:00:40,760
Speaker 17: to follow you sanguinous, because we're going to make it

1164
01:00:40,840 --> 01:00:44,680
Speaker 17: all right on parentage. But instead, I mean the fourteenth

1165
01:00:44,680 --> 01:00:47,280
Speaker 17: Amendment we're talking about subject to the jurisdiction thereof, But

1166
01:00:47,360 --> 01:00:50,080
Speaker 17: it also says born in the United States, So you

1167
01:00:50,200 --> 01:00:53,760
Speaker 17: have the use solely kind of point there, But you're

1168
01:00:53,840 --> 01:00:57,080
Speaker 17: saying it narrowed that point by tying it to the

1169
01:00:57,160 --> 01:01:00,120
Speaker 17: citizenship of the parents at least as to soil. But

1170
01:01:00,240 --> 01:01:03,320
Speaker 17: I take it you're not arguing that the United States

1171
01:01:03,400 --> 01:01:08,520
Speaker 17: citizens who have children born abroad would qualify for birthright citizenship.

1172
01:01:08,640 --> 01:01:11,600
Speaker 17: So it's it's kind of a narrower view of both

1173
01:01:11,680 --> 01:01:16,120
Speaker 17: the traditional youth solely rule and a narrow narrower view

1174
01:01:16,160 --> 01:01:18,040
Speaker 17: of the youth sanguinous rules. So why would they have

1175
01:01:18,160 --> 01:01:19,760
Speaker 17: done that? And if they were going to invent an

1176
01:01:19,920 --> 01:01:23,480
Speaker 17: entirely new kind of citizenship, like an American brand, why

1177
01:01:23,480 --> 01:01:25,840
Speaker 17: wouldn't we have seen more discussion of that in the debates.

1178
01:01:26,080 --> 01:01:28,200
Speaker 4: I think you do, and honestly, I think the right

1179
01:01:28,280 --> 01:01:30,280
Speaker 4: way to conceptualize it. It is much more.

1180
01:01:30,640 --> 01:01:34,080
Speaker 10: It is a modified you solely because even the British

1181
01:01:34,120 --> 01:01:36,120
Speaker 10: sources don't you say you're born here, you're a citizen.

1182
01:01:36,400 --> 01:01:38,440
Speaker 10: They say you're born here and you have to be

1183
01:01:38,600 --> 01:01:40,280
Speaker 10: under the protection of the sovereign. You have to have

1184
01:01:40,560 --> 01:01:43,760
Speaker 10: a relationship of allegiance. Allegiance is the word in Calvin's case,

1185
01:01:43,840 --> 01:01:44,160
Speaker 10: but they.

1186
01:01:44,040 --> 01:01:47,840
Speaker 17: Don't focus on the parents. It's the child, and your

1187
01:01:47,880 --> 01:01:50,320
Speaker 17: approach focuses on the parents' allegiance.

1188
01:01:50,600 --> 01:01:53,440
Speaker 4: Yeah, I'm not sure that that's true to this.

1189
01:01:53,480 --> 01:01:54,800
Speaker 17: And I'm going to ask your friend on the other

1190
01:01:54,840 --> 01:01:55,479
Speaker 17: side of that question.

1191
01:01:55,720 --> 01:01:57,600
Speaker 10: Let me let me point out then that there are

1192
01:01:57,680 --> 01:02:00,400
Speaker 10: two criteria. One is birth on the soil and the

1193
01:02:00,480 --> 01:02:03,440
Speaker 10: other is allegiance or allegiance we have as birth on

1194
01:02:03,480 --> 01:02:05,840
Speaker 10: the soil remains the same right, and so they are

1195
01:02:05,960 --> 01:02:07,520
Speaker 10: and that's why so much a Wan kim Mark is

1196
01:02:07,560 --> 01:02:10,440
Speaker 10: actually we agree with because they are adopting a modified

1197
01:02:10,480 --> 01:02:12,800
Speaker 10: British rule. They are not going the French rule. You

1198
01:02:12,880 --> 01:02:15,400
Speaker 10: know that Bettel talks about where it's like who's the citizen.

1199
01:02:15,480 --> 01:02:17,200
Speaker 10: That had to be done by statute, as you pointed out,

1200
01:02:17,240 --> 01:02:19,920
Speaker 10: which it was in fourteen oh one. But what they've

1201
01:02:19,960 --> 01:02:22,520
Speaker 10: got is they say birth in the United States and

1202
01:02:22,680 --> 01:02:25,840
Speaker 10: subject to the jurisdiction thereof that is talked about is allegiance, allegiance,

1203
01:02:25,880 --> 01:02:29,080
Speaker 10: allegiance in the congressional debates, but they were clearly not

1204
01:02:29,960 --> 01:02:35,880
Speaker 10: incorporating the British feudal monarchical conception of allegiance where it's indefeasible.

1205
01:02:35,920 --> 01:02:38,320
Speaker 10: I mean, going back to the early seventeen hundreds, our

1206
01:02:38,440 --> 01:02:41,360
Speaker 10: nation had reputed the notion that citizenship is indefeasible.

1207
01:02:41,560 --> 01:02:43,840
Speaker 4: The expatriation statutes.

1208
01:02:43,640 --> 01:02:46,440
Speaker 10: For the late seventeen hundreds reflect that, and again you

1209
01:02:46,480 --> 01:02:49,320
Speaker 10: look at the eighteen sixty eight Congressional report that we

1210
01:02:49,480 --> 01:02:53,920
Speaker 10: cite there. This is the same group of congressmen, Republican congressmen,

1211
01:02:54,000 --> 01:02:57,280
Speaker 10: and they say things like the US Constitution itself is

1212
01:02:57,440 --> 01:03:02,160
Speaker 10: proof that Blackstones of allegiance was not accepted.

1213
01:03:02,400 --> 01:03:05,240
Speaker 4: So they accept birth on US soil. But then they

1214
01:03:05,280 --> 01:03:07,400
Speaker 4: take the concept of allegiance and give.

1215
01:03:07,280 --> 01:03:10,560
Speaker 10: It its Republican democratic American understanding.

1216
01:03:10,640 --> 01:03:13,320
Speaker 4: And that's very very I think that makes a ton

1217
01:03:13,400 --> 01:03:13,760
Speaker 4: of sense.

1218
01:03:14,320 --> 01:03:17,080
Speaker 17: Okay, and let's talk about it's applications. So you know

1219
01:03:17,200 --> 01:03:20,120
Speaker 17: there are some I can imagine it being messy and

1220
01:03:20,200 --> 01:03:23,640
Speaker 17: some applications. So how what would you do with what

1221
01:03:23,760 --> 01:03:25,360
Speaker 17: the common law called foundlings?

1222
01:03:25,840 --> 01:03:26,000
Speaker 2: You know.

1223
01:03:26,200 --> 01:03:28,560
Speaker 17: The thing about this is then you have to adjudicate

1224
01:03:28,600 --> 01:03:30,680
Speaker 17: if you're looking at parents, and if you're looking at

1225
01:03:30,760 --> 01:03:34,480
Speaker 17: parents domicile, then you have to adjudicate both residents and

1226
01:03:34,560 --> 01:03:36,320
Speaker 17: intent to say, what if you don't know who the

1227
01:03:36,400 --> 01:03:36,840
Speaker 17: parents are.

1228
01:03:37,600 --> 01:03:38,200
Speaker 4: I think there are.

1229
01:03:38,160 --> 01:03:40,240
Speaker 10: Marginal cases that one I think has the benefit of

1230
01:03:40,280 --> 01:03:42,400
Speaker 10: being addressed in fourteen oh one f where it talks.

1231
01:03:42,280 --> 01:03:44,320
Speaker 17: About ye ye yeah, yeah, But what about the Constitution.

1232
01:03:44,840 --> 01:03:46,920
Speaker 10: Under the Constitution, it's it's domina I mean, look there,

1233
01:03:47,360 --> 01:03:50,800
Speaker 10: domicile is a constitutional standard in all kinds of other situations.

1234
01:03:50,840 --> 01:03:51,520
Speaker 13: Well, and it's hard.

1235
01:03:51,680 --> 01:03:53,720
Speaker 4: First jurisdiction, personal jurisdiction Star well.

1236
01:03:53,680 --> 01:03:55,720
Speaker 17: Yeah, and a personal jurisdiction, I mean thirteen thirty two

1237
01:03:55,760 --> 01:03:58,360
Speaker 17: diversity jurisdiction. And the thing is it has to be

1238
01:03:58,480 --> 01:04:02,920
Speaker 17: litigated because it turns on intent and both the virtue

1239
01:04:02,960 --> 01:04:05,840
Speaker 17: of both you solely and U sanguineous, whichever one you pick.

1240
01:04:05,920 --> 01:04:08,760
Speaker 17: It's a bright line rule. How would it work? How

1241
01:04:08,760 --> 01:04:11,200
Speaker 17: would you adjudicate these cases? You're not going to know

1242
01:04:11,360 --> 01:04:14,240
Speaker 17: at the time of birth for some people whether they

1243
01:04:14,400 --> 01:04:18,240
Speaker 17: have the intent to stay or not, including US citizens.

1244
01:04:18,320 --> 01:04:20,120
Speaker 17: By the way, I mean, what if you have someone

1245
01:04:20,240 --> 01:04:24,160
Speaker 17: who is living in Norway with their husband and family,

1246
01:04:24,240 --> 01:04:26,480
Speaker 17: but it's still a US citizen, comes home and has

1247
01:04:26,560 --> 01:04:29,000
Speaker 17: her child here and goes back. How do we know

1248
01:04:29,120 --> 01:04:31,360
Speaker 17: whether the child is a US citizen because the parent

1249
01:04:31,400 --> 01:04:32,560
Speaker 17: didn't have an intent to stay.

1250
01:04:32,800 --> 01:04:35,160
Speaker 4: I make two points, one practical, one legal.

1251
01:04:35,200 --> 01:04:37,400
Speaker 10: The practical point is on the terms of this executive order,

1252
01:04:37,480 --> 01:04:39,440
Speaker 10: you don't have to because the executive order turns on

1253
01:04:39,560 --> 01:04:43,240
Speaker 10: objectively verifiable things, which is immigration status. Are you lawfully

1254
01:04:43,320 --> 01:04:46,040
Speaker 10: present but temporarily present? Or are do you have an

1255
01:04:46,040 --> 01:04:49,000
Speaker 10: illegal status? So those kind of like you know, taking

1256
01:04:49,040 --> 01:04:52,120
Speaker 10: evidence so to speak on your subjective attent wouldn't be done.

1257
01:04:52,160 --> 01:04:55,080
Speaker 10: And as to the constitutional point, obviously, domicile is baked

1258
01:04:55,080 --> 01:04:57,800
Speaker 10: into a lot of constitutional and legal concepts and there

1259
01:04:57,840 --> 01:05:00,360
Speaker 10: may be situations where facts are determined. If you look

1260
01:05:00,360 --> 01:05:02,600
Speaker 10: at the guidance, the guidance and all the agencies did

1261
01:05:02,600 --> 01:05:04,360
Speaker 10: after this court and Costa said the agency could go

1262
01:05:04,440 --> 01:05:07,720
Speaker 10: for an issue guidance, the guidance provides I think, very

1263
01:05:07,920 --> 01:05:12,480
Speaker 10: very clear, objective, verifiable approaches to doing this, and so

1264
01:05:13,000 --> 01:05:15,400
Speaker 10: as a practical matter, I don't think it's presented by

1265
01:05:15,440 --> 01:05:16,240
Speaker 10: this executive order.

1266
01:05:16,440 --> 01:05:18,320
Speaker 4: Thank you, General Justice Jackson.

1267
01:05:20,040 --> 01:05:20,480
Speaker 21: Good morning.

1268
01:05:20,600 --> 01:05:20,880
Speaker 5: General.

1269
01:05:22,520 --> 01:05:27,720
Speaker 18: So I guess I am looking at your position in

1270
01:05:27,840 --> 01:05:32,320
Speaker 18: this case, and it boils down to requiring us to

1271
01:05:32,440 --> 01:05:36,080
Speaker 18: do at least these two things. One is believe that

1272
01:05:36,240 --> 01:05:41,000
Speaker 18: the Framers were not importing the common law rule and

1273
01:05:41,200 --> 01:05:46,600
Speaker 18: understanding of birthright citizenship. And the second is to believe

1274
01:05:47,000 --> 01:05:51,240
Speaker 18: that what they were doing was departing from that common

1275
01:05:51,320 --> 01:05:54,800
Speaker 18: law rule in the way that you suggest that is

1276
01:05:55,040 --> 01:05:59,200
Speaker 18: in the they were seeking to have this turn on domicile.

1277
01:06:00,240 --> 01:06:00,880
Speaker 21: I think you have a.

1278
01:06:01,040 --> 01:06:06,840
Speaker 18: Number of hurdles to accomplish those two things, one of

1279
01:06:06,920 --> 01:06:11,000
Speaker 18: which I think is that when we look at this

1280
01:06:11,600 --> 01:06:15,360
Speaker 18: Court's case Law No One, I think is mentioned Schooner's Exchange,

1281
01:06:16,240 --> 01:06:20,240
Speaker 18: But it appears that that was a eighteen twelve case

1282
01:06:20,480 --> 01:06:22,880
Speaker 18: in which it seems as though the Court had already

1283
01:06:23,000 --> 01:06:26,480
Speaker 18: accepted at the time of the ratification of the Fourteenth

1284
01:06:26,520 --> 01:06:32,440
Speaker 18: Amendment that the allegiance that you were talking about was

1285
01:06:32,720 --> 01:06:36,760
Speaker 18: the English common law rule, that, in other words, allegiance

1286
01:06:37,160 --> 01:06:43,160
Speaker 18: meant that you are covered by the laws of the jurisdiction,

1287
01:06:43,400 --> 01:06:46,160
Speaker 18: that you can rely on the jurisdiction's protection. That's what

1288
01:06:46,280 --> 01:06:50,320
Speaker 18: allegiance meant. Now you're saying today, no, no, allegiance meant

1289
01:06:50,560 --> 01:06:55,080
Speaker 18: something about loyalty or that kind of idea. But if

1290
01:06:55,200 --> 01:06:59,880
Speaker 18: the Supreme Court had prior to the Fourteenth Amendment established

1291
01:07:00,640 --> 01:07:04,760
Speaker 18: that allegiance meant the common law definition, I think your

1292
01:07:04,840 --> 01:07:07,919
Speaker 18: first hurdle is to help us understand why we would

1293
01:07:08,000 --> 01:07:13,320
Speaker 18: believe that when when the Fourteenth Amendment was ratified, the

1294
01:07:13,400 --> 01:07:18,440
Speaker 18: framers weren't just incorporating what we had previously said it meant.

1295
01:07:19,080 --> 01:07:22,360
Speaker 10: Page five seventy two the Congressional Record directly addresses this.

1296
01:07:22,520 --> 01:07:25,480
Speaker 10: They say, the concept of temporary and local allegiance from

1297
01:07:25,520 --> 01:07:27,960
Speaker 10: the Schooner Exchange is what is meant by our temporary

1298
01:07:27,960 --> 01:07:30,120
Speaker 10: and local jurisdiction. From the schooner exchange is what is

1299
01:07:30,240 --> 01:07:32,920
Speaker 10: meant by the word jurisdiction in the fourteenth Amendment. Senator

1300
01:07:32,960 --> 01:07:36,720
Speaker 10: Trumbull says, I thought about saying owing allegiance, but again, quote,

1301
01:07:36,920 --> 01:07:40,560
Speaker 10: there's a sort of allegiance from persons temporarily resident in

1302
01:07:40,600 --> 01:07:43,520
Speaker 10: the United States whom we have no right to make citizens.

1303
01:07:43,680 --> 01:07:45,520
Speaker 4: So expressly in conscience.

1304
01:07:45,520 --> 01:07:47,520
Speaker 18: Okay, well, where did reliance on school? What do we

1305
01:07:47,640 --> 01:07:50,760
Speaker 18: do with I mean, that's a debate, and it's a discussion,

1306
01:07:50,960 --> 01:07:54,200
Speaker 18: very valid. But then we have a subsequent debate between

1307
01:07:54,600 --> 01:07:58,520
Speaker 18: Fesenden and Wade where the same concept comes up, and

1308
01:07:58,640 --> 01:08:02,880
Speaker 18: it becomes clear, at least from Senator Wade's perspective, that.

1309
01:08:04,680 --> 01:08:05,200
Speaker 21: That's wrong.

1310
01:08:05,600 --> 01:08:08,520
Speaker 18: Sotor Peessenden, and I'm not sure whether these are senators.

1311
01:08:08,520 --> 01:08:09,160
Speaker 21: I apologize.

1312
01:08:09,400 --> 01:08:12,840
Speaker 18: Feessenden says, suppose a person is born here of parents

1313
01:08:12,880 --> 01:08:18,599
Speaker 18: from abroad temporarily in this country. Wade responds, the senator says,

1314
01:08:18,680 --> 01:08:21,320
Speaker 18: a person may be born here and not be a citizen.

1315
01:08:22,040 --> 01:08:25,439
Speaker 18: I know that is so in one instance, in the

1316
01:08:25,560 --> 01:08:28,920
Speaker 18: case of the children of foreign ministers who reside near

1317
01:08:29,040 --> 01:08:29,760
Speaker 18: the United.

1318
01:08:29,520 --> 01:08:31,800
Speaker 21: States, et cetera, et cetera.

1319
01:08:32,040 --> 01:08:36,800
Speaker 18: So it appears as though in that exchange at least

1320
01:08:36,920 --> 01:08:41,280
Speaker 18: Senator Wade believed that the English common law understanding of

1321
01:08:41,360 --> 01:08:46,360
Speaker 18: what it means to have allegiance to be a temporary

1322
01:08:46,439 --> 01:08:50,120
Speaker 18: person on the soil was what was being adopted.

1323
01:08:50,360 --> 01:08:53,920
Speaker 10: Yeah, that content or that exchange strongly supports us if

1324
01:08:53,960 --> 01:08:56,160
Speaker 10: you look at it in context. Senator Wade has introduced

1325
01:08:56,200 --> 01:08:59,439
Speaker 10: a version that says only birth on US soil and

1326
01:08:59,520 --> 01:09:03,439
Speaker 10: doesn't have any allegiance or jurisdictional element to it. And

1327
01:09:03,560 --> 01:09:05,920
Speaker 10: so Senator Fessenden stands up and says, well, that can't

1328
01:09:05,960 --> 01:09:09,800
Speaker 10: be right because you know, obviously what about the children

1329
01:09:09,840 --> 01:09:12,080
Speaker 10: of temporary visitors? It has this you know, it's another

1330
01:09:12,120 --> 01:09:14,400
Speaker 10: one of these statements that has this appeal to a

1331
01:09:14,439 --> 01:09:17,040
Speaker 10: background understanding that we all agree that the temporary visitors

1332
01:09:17,080 --> 01:09:20,000
Speaker 10: their children do not become citizens. And then Senator Wade

1333
01:09:20,040 --> 01:09:21,599
Speaker 10: has to kind of backtrack and say, well, what are

1334
01:09:21,720 --> 01:09:22,840
Speaker 10: the children of ambassadors?

1335
01:09:23,000 --> 01:09:26,200
Speaker 4: And in the end Congress does not adopt Senator Wade's proposal.

1336
01:09:26,479 --> 01:09:28,759
Speaker 4: So we think that you said you can draw inference

1337
01:09:28,800 --> 01:09:30,480
Speaker 4: of that the inference strongly supports.

1338
01:09:30,120 --> 01:09:32,840
Speaker 18: All right, Well, let me just ask you about why

1339
01:09:33,000 --> 01:09:36,679
Speaker 18: we wouldn't see in the fourteenth Amendment anything about parental allegiance.

1340
01:09:36,760 --> 01:09:39,600
Speaker 18: Several of my colleagues have talked about the fact that

1341
01:09:39,760 --> 01:09:43,080
Speaker 18: your view of this turns on what the status of

1342
01:09:43,120 --> 01:09:47,160
Speaker 18: the parents are and not the child, as would the

1343
01:09:47,720 --> 01:09:51,320
Speaker 18: born in the United States view of it. What can

1344
01:09:51,360 --> 01:09:55,160
Speaker 18: you help us understand why we wouldn't expect to see

1345
01:09:55,200 --> 01:09:58,040
Speaker 18: a mention of parents in the text of this amendment.

1346
01:09:58,160 --> 01:10:00,839
Speaker 10: I think it was well understood that, for example, children

1347
01:10:01,080 --> 01:10:05,960
Speaker 10: cannot newborns cannot form domicile. So it follows every nineteenth century.

1348
01:10:05,880 --> 01:10:08,600
Speaker 18: That assumes domicile is in the test. And I'm asking you,

1349
01:10:08,880 --> 01:10:12,360
Speaker 18: how do we know that Congress did adopt the test

1350
01:10:12,479 --> 01:10:14,080
Speaker 18: that you say it adopts.

1351
01:10:14,080 --> 01:10:16,760
Speaker 4: When you're looking at nineteenth century conceptions of allegiance, the

1352
01:10:16,840 --> 01:10:18,639
Speaker 4: notion that the allegiance again.

1353
01:10:18,640 --> 01:10:22,160
Speaker 10: You say domicile is instantiating the concept of allegiance for

1354
01:10:22,600 --> 01:10:25,559
Speaker 10: aliens as opposed to citizen. All of that, the nineteenth

1355
01:10:25,560 --> 01:10:29,960
Speaker 10: century understands the newborns domicile, its allegiance follows the allegiance

1356
01:10:29,960 --> 01:10:32,479
Speaker 10: of the parents. And I point out that their theory

1357
01:10:32,640 --> 01:10:35,320
Speaker 10: relies on parental allegiance as well, because they recognize the

1358
01:10:35,360 --> 01:10:40,479
Speaker 10: exceptions for you know, hostile invading armies, for tribal Indians,

1359
01:10:40,600 --> 01:10:45,040
Speaker 10: for ambassadors. Again, the child's allegiance status, even on their view,

1360
01:10:45,320 --> 01:10:46,479
Speaker 10: turns on the status of the town.

1361
01:10:46,600 --> 01:10:49,560
Speaker 18: What do we do with Professor Mueller's amicust brief and

1362
01:10:49,640 --> 01:10:53,799
Speaker 18: the historical record and the fact that even at times

1363
01:10:53,840 --> 01:10:57,760
Speaker 18: in this country where we understood that the parents were

1364
01:10:57,840 --> 01:10:59,920
Speaker 18: declared and in these in the United States, I'm talking

1365
01:11:00,040 --> 01:11:03,760
Speaker 18: about World War II in Japanese internments, babies born in

1366
01:11:03,920 --> 01:11:08,320
Speaker 18: that circumstance were given birthright citizenship. So it seems as

1367
01:11:08,400 --> 01:11:11,960
Speaker 18: though this concept of allegiance of the parents really wasn't

1368
01:11:12,479 --> 01:11:16,519
Speaker 18: driving birthright citizenship, at least at this period of our history.

1369
01:11:16,840 --> 01:11:19,479
Speaker 18: So saying this is wrong or they shouldn't have gotten

1370
01:11:19,560 --> 01:11:21,519
Speaker 18: birthright citizenship, Well, if.

1371
01:11:21,400 --> 01:11:23,360
Speaker 10: They were domiciled here, yes they should have. If they

1372
01:11:23,400 --> 01:11:24,880
Speaker 10: are temporarily present, then no.

1373
01:11:25,360 --> 01:11:30,320
Speaker 4: But the executive practice, we can say, how does.

1374
01:11:30,240 --> 01:11:35,080
Speaker 18: The temporary presence run with your concept of allegiance? I'm

1375
01:11:35,120 --> 01:11:36,360
Speaker 18: not sure I understand.

1376
01:11:36,479 --> 01:11:37,360
Speaker 21: So can you be clear?

1377
01:11:37,840 --> 01:11:42,960
Speaker 18: Are you saying that only people who are domiciled here

1378
01:11:43,000 --> 01:11:46,560
Speaker 18: as you define it can form the necessary loyalty to

1379
01:11:46,640 --> 01:11:47,400
Speaker 18: the United States.

1380
01:11:47,600 --> 01:11:51,200
Speaker 4: It's not allegiance is not a question of subjective loyalty. Okay, oh,

1381
01:11:51,280 --> 01:11:53,759
Speaker 4: it is something you owe. It's a reciprocal relationship between

1382
01:11:53,760 --> 01:11:56,000
Speaker 4: the citizen, whether they want it or not. They have that.

1383
01:11:56,040 --> 01:11:58,280
Speaker 10: Allegiance, and I think it's powerful on the basis of

1384
01:11:58,400 --> 01:12:01,120
Speaker 10: what domicile. That's what it says in so many words

1385
01:12:01,160 --> 01:12:03,040
Speaker 10: in the Venus and the Pizarro, it says, Look, if

1386
01:12:03,040 --> 01:12:05,679
Speaker 10: you're talking about an alien, if they're just temporarily passing through,

1387
01:12:06,439 --> 01:12:08,519
Speaker 10: no they don't have allegiance. But if they've made it

1388
01:12:08,600 --> 01:12:11,519
Speaker 10: the permanent home, they become part of our political community,

1389
01:12:11,720 --> 01:12:14,440
Speaker 10: and they are analogous or akin to citizens.

1390
01:12:14,479 --> 01:12:17,599
Speaker 18: All Right, just quickly, because I'm mindful of the time,

1391
01:12:18,600 --> 01:12:22,800
Speaker 18: What do you do with one one tim arcs statement

1392
01:12:23,320 --> 01:12:28,799
Speaker 18: that birthright traditionship is applying quote independently of a residence

1393
01:12:28,840 --> 01:12:33,920
Speaker 18: with intention to continue such residents, independently of any domaciliation.

1394
01:12:34,800 --> 01:12:37,240
Speaker 18: I know that they used domicile, it's a fact in

1395
01:12:37,320 --> 01:12:40,240
Speaker 18: the case, but that's not a part of their holding.

1396
01:12:40,360 --> 01:12:42,720
Speaker 21: It's not what the reasoning turns on.

1397
01:12:43,240 --> 01:12:43,439
Speaker 2: I R.

1398
01:12:43,760 --> 01:12:45,519
Speaker 4: Yeah, I believe you're quoting. For page six ninety three

1399
01:12:45,560 --> 01:12:47,559
Speaker 4: of that opinion. It goes on to say not citizen

1400
01:12:47,720 --> 01:12:51,160
Speaker 4: terms on that but the duty of obedience to our laws.

1401
01:12:51,280 --> 01:12:53,040
Speaker 10: It doesn't take the further step at that point and

1402
01:12:53,080 --> 01:12:55,839
Speaker 10: say therefore, if you have temporary local allegiance, you're a citizen.

1403
01:12:55,960 --> 01:12:58,519
Speaker 10: And immediately before that you have that page six ninety

1404
01:12:58,520 --> 01:12:59,840
Speaker 10: three Summary of the Courts.

1405
01:12:59,560 --> 01:13:04,760
Speaker 18: Holding where it's a wum can incorporates a domicile requirement.

1406
01:13:04,960 --> 01:13:07,920
Speaker 4: That is the holding. It's definitely clearly expression the holding right.

1407
01:13:08,040 --> 01:13:11,519
Speaker 18: One final thing perspective, you say, perspective, we're supposed to

1408
01:13:11,640 --> 01:13:13,759
Speaker 18: do this. Don't worry about the people who are already

1409
01:13:13,840 --> 01:13:16,800
Speaker 18: here and who would not qualify under your rule.

1410
01:13:18,000 --> 01:13:19,120
Speaker 21: How does this work?

1411
01:13:19,520 --> 01:13:23,400
Speaker 18: Are you suggesting that when a baby is born people

1412
01:13:23,560 --> 01:13:27,840
Speaker 18: have to have documents present documents? Is this happening in

1413
01:13:27,920 --> 01:13:32,120
Speaker 18: the delivery room? How are we determining when or whether

1414
01:13:32,640 --> 01:13:35,559
Speaker 18: a newborn child is a citizen of the United States

1415
01:13:35,680 --> 01:13:36,400
Speaker 18: under your rule?

1416
01:13:36,640 --> 01:13:39,000
Speaker 10: I think that's directly addressed in the SSA guidance that

1417
01:13:39,080 --> 01:13:41,519
Speaker 10: citing in our brief. What SSA says is there's currently

1418
01:13:41,600 --> 01:13:44,600
Speaker 10: a system where, for example, sec social Security numbers are

1419
01:13:44,680 --> 01:13:47,439
Speaker 10: generated based on the Firth certificate. They say, this can

1420
01:13:47,520 --> 01:13:50,440
Speaker 10: still be for the vast majority of institute is completely transparent.

1421
01:13:50,680 --> 01:13:51,519
Speaker 10: You will still get a it.

1422
01:13:51,840 --> 01:13:54,080
Speaker 18: You're not transparent. I'm just talking about the particulars because

1423
01:13:54,120 --> 01:13:56,679
Speaker 18: now you say your rule turns on whether the person

1424
01:13:56,840 --> 01:13:58,720
Speaker 18: intended to stay in the United States, and I think

1425
01:13:58,880 --> 01:14:01,679
Speaker 18: Justice Barrett brought this up. So we're bringing pregnant women

1426
01:14:01,800 --> 01:14:05,559
Speaker 18: in for depositions. What are we doing to figure this out?

1427
01:14:05,880 --> 01:14:05,960
Speaker 2: Now?

1428
01:14:06,080 --> 01:14:08,680
Speaker 10: As I pointed out earlier, the executive order turns on

1429
01:14:08,840 --> 01:14:12,680
Speaker 10: lawfulness of stats. So if you give birth to a

1430
01:14:12,760 --> 01:14:15,000
Speaker 10: baby in the hospital right now, it gets the birth

1431
01:14:15,040 --> 01:14:16,000
Speaker 10: certificate in the system.

1432
01:14:16,000 --> 01:14:18,040
Speaker 21: There's a computer system, so there's no opportunity.

1433
01:14:18,160 --> 01:14:21,120
Speaker 18: There's apparently no opportunity then for the person to prove

1434
01:14:21,400 --> 01:14:24,400
Speaker 18: or to say that they actually intended to stay in

1435
01:14:24,400 --> 01:14:25,680
Speaker 18: the United Absolutely.

1436
01:14:25,320 --> 01:14:28,040
Speaker 4: Not, the opposite is true. Their opportunity to dispute if

1437
01:14:28,040 --> 01:14:29,960
Speaker 4: they think they were wrongly denied, which would only happen

1438
01:14:30,000 --> 01:14:32,240
Speaker 4: in a tiny minority of cases. After this directly addressing

1439
01:14:32,280 --> 01:14:33,120
Speaker 4: that guy after.

1440
01:14:33,000 --> 01:14:35,880
Speaker 18: The fact, after their baby has been denied citizenship, then

1441
01:14:35,960 --> 01:14:38,120
Speaker 18: we can go through the process and the way.

1442
01:14:38,000 --> 01:14:40,519
Speaker 10: That I mean I'm summarizing because I'm not an expert computers,

1443
01:14:40,520 --> 01:14:42,960
Speaker 10: but there's a computer program that currently automatically generates a

1444
01:14:43,000 --> 01:14:45,120
Speaker 10: Social Security numbers to say he says, look a social

1445
01:14:45,160 --> 01:14:45,800
Speaker 10: Security number.

1446
01:14:46,040 --> 01:14:47,160
Speaker 4: Non citizens can have them.

1447
01:14:47,080 --> 01:14:50,040
Speaker 10: If they work authorizations. Who doesn't prove citizenship, We'll give

1448
01:14:50,040 --> 01:14:53,360
Speaker 10: you a social Security number, provided that there's the system

1449
01:14:53,439 --> 01:14:55,800
Speaker 10: automatically checks the immigration stats to the parents, which they

1450
01:14:55,840 --> 01:14:57,000
Speaker 10: are robust databases for.

1451
01:14:57,439 --> 01:15:01,320
Speaker 4: And then a here's no different to the vast majority

1452
01:15:01,360 --> 01:15:04,440
Speaker 4: of birthing parents. Thank you, Thank you, Counsel.

1453
01:15:15,760 --> 01:15:18,560
Speaker 21: Is Wan, mister Chief Justice, and may it please the

1454
01:15:18,640 --> 01:15:22,920
Speaker 21: Court Ask any American what our citizenship rule is, and

1455
01:15:22,960 --> 01:15:26,839
Speaker 21: they'll tell you everyone born here is a citizen alike.

1456
01:15:27,600 --> 01:15:30,400
Speaker 21: That rule was enshrined in the Fourteenth Amendment to put

1457
01:15:30,439 --> 01:15:33,280
Speaker 21: it out of the reach of any government official to destroy.

1458
01:15:34,320 --> 01:15:37,920
Speaker 21: When the government tried to strip mister Wangkim ARC's citizenship

1459
01:15:38,320 --> 01:15:41,559
Speaker 21: on largely the same grounds they raised today, this Court

1460
01:15:41,640 --> 01:15:46,680
Speaker 21: said no. Thirty years after ratification, this Court held that

1461
01:15:46,760 --> 01:15:51,320
Speaker 21: the Fourteenth Amendment embodies the English common law rule virtually

1462
01:15:51,560 --> 01:15:55,200
Speaker 21: everyone born on US soil is subject to its jurisdiction

1463
01:15:55,720 --> 01:15:59,320
Speaker 21: and is a citizen. It excludes only those cloaked with

1464
01:15:59,400 --> 01:16:03,560
Speaker 21: a fiction of extra territoriality, because they are subject to

1465
01:16:03,680 --> 01:16:07,639
Speaker 21: another sovereign's jurisdiction even when they're in the United States.

1466
01:16:08,400 --> 01:16:11,880
Speaker 21: A closed set of exceptions to an otherwise universal rule.

1467
01:16:13,160 --> 01:16:16,160
Speaker 21: My friend has now clearly said that the government is

1468
01:16:16,240 --> 01:16:19,400
Speaker 21: not asking you to overrule wonkim Ark. That is a

1469
01:16:19,520 --> 01:16:25,400
Speaker 21: fatal concession because wonkim Ark's controlling rule of decision precludes

1470
01:16:25,640 --> 01:16:30,320
Speaker 21: their parental domicile requirement. That dissent understood that, and the

1471
01:16:30,400 --> 01:16:34,440
Speaker 21: majority tells us six times in the opinion that domicile

1472
01:16:34,600 --> 01:16:39,439
Speaker 21: is irrelevant under common law. Lynch versus Clerk was already

1473
01:16:39,520 --> 01:16:43,080
Speaker 21: the dominant American case on citizenship, and it held that

1474
01:16:43,200 --> 01:16:47,599
Speaker 21: the US born daughter of temporary visitors from Ireland who

1475
01:16:47,720 --> 01:16:50,320
Speaker 21: took the baby back to Ireland with them, that that

1476
01:16:50,520 --> 01:16:54,920
Speaker 21: daughter was a US citizen. Authorities, including Lincoln's Attorney General

1477
01:16:55,400 --> 01:17:00,880
Speaker 21: and Kent's commentaries, embraced Lynch, and Kent specifically talked about

1478
01:17:01,000 --> 01:17:05,680
Speaker 21: temporary sojourner's children being US citizens. Justice Field said in

1479
01:17:05,800 --> 01:17:10,439
Speaker 21: eighteen eighty four that that reflected the general understanding. That

1480
01:17:10,760 --> 01:17:14,760
Speaker 21: understanding was confirmed by Congress with its nineteen forty Act

1481
01:17:16,040 --> 01:17:20,160
Speaker 21: the Fourteenth Amendments. Fixed bright line rule has contributed to

1482
01:17:20,280 --> 01:17:23,040
Speaker 21: the growth and thriving of our nation. It comes from

1483
01:17:23,160 --> 01:17:27,960
Speaker 21: text and history, It is workable, and it prevents manipulation.

1484
01:17:29,400 --> 01:17:32,840
Speaker 21: The executive order fails on all those counts, swaths of

1485
01:17:32,880 --> 01:17:37,439
Speaker 21: American laws would be rendered senseless. Thousands of American babies

1486
01:17:37,479 --> 01:17:40,960
Speaker 21: will immediately lose their citizenship, And if you credit the

1487
01:17:41,000 --> 01:17:45,719
Speaker 21: government's theory, the citizenship of millions of Americans past, present,

1488
01:17:45,840 --> 01:17:49,080
Speaker 21: and future could be called into question. All of this

1489
01:17:49,240 --> 01:17:51,680
Speaker 21: tells us the government's theory is wrong. I welcome the

1490
01:17:51,720 --> 01:17:52,439
Speaker 21: court's questions.

1491
01:17:53,560 --> 01:17:58,920
Speaker 11: There are five exceptions to citizenship that you do accept.

1492
01:18:00,640 --> 01:18:03,240
Speaker 21: Yes, depending on how many you count, Justice Thomas, how

1493
01:18:03,320 --> 01:18:03,840
Speaker 21: you count them?

1494
01:18:04,800 --> 01:18:09,599
Speaker 11: What is the underlying rule of law that you use

1495
01:18:09,760 --> 01:18:11,680
Speaker 11: to connect these five exceptions?

1496
01:18:12,439 --> 01:18:15,640
Speaker 21: Sure so, as I just said, all of the exceptions

1497
01:18:15,720 --> 01:18:20,200
Speaker 21: involve situations where that US born child is not subject

1498
01:18:20,280 --> 01:18:25,640
Speaker 21: to the jurisdiction of the United States, because that extra territoriality,

1499
01:18:25,720 --> 01:18:29,839
Speaker 21: the fiction of extra territoriality, the interaction of another sovereign

1500
01:18:30,920 --> 01:18:34,960
Speaker 21: between the United States is jurisdiction, and that person applies

1501
01:18:35,000 --> 01:18:38,280
Speaker 21: to the child as well as to the parent. Everyone

1502
01:18:38,320 --> 01:18:41,280
Speaker 21: else born in the United States is subject to the

1503
01:18:41,400 --> 01:18:45,960
Speaker 21: United States is jurisdiction. To answer Justice Barrett's question to

1504
01:18:46,080 --> 01:18:49,960
Speaker 21: my friend, that's what sets those exceptions apart from other

1505
01:18:50,160 --> 01:18:51,080
Speaker 21: US born persons.

1506
01:18:52,400 --> 01:18:56,280
Speaker 12: We've heard a lot of talk about long Kymark and

1507
01:18:57,240 --> 01:19:01,720
Speaker 12: you dismiss the use of the word domicile in it.

1508
01:19:02,120 --> 01:19:07,680
Speaker 12: It appears in the opinion twenty twenty different times, and

1509
01:19:09,880 --> 01:19:15,639
Speaker 12: including in the question presented and in the actual legal holding.

1510
01:19:16,120 --> 01:19:18,640
Speaker 12: And the government doesn't want it to be of a

1511
01:19:18,760 --> 01:19:21,800
Speaker 12: rule because it relies on willing to rely on that

1512
01:19:21,960 --> 01:19:26,280
Speaker 12: particular fact in that case. Isn't it at least something

1513
01:19:26,360 --> 01:19:31,439
Speaker 12: to be concerned about to say that, since discussed twenty

1514
01:19:31,479 --> 01:19:35,160
Speaker 12: different times and has that significant role in the opinion,

1515
01:19:35,240 --> 01:19:37,560
Speaker 12: that you can just dismiss it as irrelevant.

1516
01:19:38,320 --> 01:19:41,559
Speaker 21: Well, mister Chief Justice, I think we have to look

1517
01:19:41,640 --> 01:19:44,679
Speaker 21: at what controlling rule of decision is in wankm Mark.

1518
01:19:45,280 --> 01:19:48,120
Speaker 21: Justice Gray takes pains in the majority opinion to set

1519
01:19:48,200 --> 01:19:51,800
Speaker 21: out his analysis. He first starts with a premise that

1520
01:19:52,040 --> 01:19:55,640
Speaker 21: in construing the Fourteenth Amendments citizenship clause, we look to

1521
01:19:55,680 --> 01:19:59,320
Speaker 21: the English common law that was the rule that applied

1522
01:19:59,479 --> 01:20:03,479
Speaker 21: from the era on, at least for the colonists and

1523
01:20:03,640 --> 01:20:08,280
Speaker 21: for European immigrants. He then says, look, Chief Justice Marshall

1524
01:20:08,400 --> 01:20:11,280
Speaker 21: tells us in the Schooner exchange, what subject to the

1525
01:20:11,360 --> 01:20:15,280
Speaker 21: jurisdiction means again looking to the English common law under

1526
01:20:15,320 --> 01:20:18,360
Speaker 21: English common law, if you are born in the dominions

1527
01:20:18,439 --> 01:20:22,000
Speaker 21: of the sovereign, you owe natural allegiance, and those who

1528
01:20:22,080 --> 01:20:25,400
Speaker 21: are present in the dominions of the sovereign owe temporary

1529
01:20:25,479 --> 01:20:28,520
Speaker 21: allegiance for as long as they're present. The only exceptions,

1530
01:20:28,520 --> 01:20:32,599
Speaker 21: again at common law, were ambassadors, people born on foreign ships,

1531
01:20:33,240 --> 01:20:36,240
Speaker 21: and people who are born during periods of foreign occupation.

1532
01:20:37,160 --> 01:20:40,599
Speaker 21: He then gets to the government's favorite page six ninety three,

1533
01:20:41,240 --> 01:20:44,320
Speaker 21: where he says, look, we have had this rule in

1534
01:20:44,400 --> 01:20:47,880
Speaker 21: the United States as to citizenship, at least for white Americans,

1535
01:20:48,320 --> 01:20:52,920
Speaker 21: from before independence. The purpose of the fourteenth Amendment was

1536
01:20:53,080 --> 01:20:59,240
Speaker 21: to embrace that universal rule of birthright citizenship, to embrace

1537
01:20:59,400 --> 01:21:03,720
Speaker 21: and incorporate the common law exceptions, with the single additional

1538
01:21:03,800 --> 01:21:07,280
Speaker 21: exception of the pre existing exception for tribal Indians that

1539
01:21:07,360 --> 01:21:10,519
Speaker 21: we had in the United States, which is an analogous exception,

1540
01:21:11,479 --> 01:21:14,960
Speaker 21: and that's the closed set of exceptions. You can't make

1541
01:21:15,120 --> 01:21:18,080
Speaker 21: sense of the holding in the case without looking to

1542
01:21:18,160 --> 01:21:20,720
Speaker 21: the controlling rule of decision, which is the common law.

1543
01:21:21,080 --> 01:21:24,000
Speaker 21: And I think my friend agrees that under English common law,

1544
01:21:24,800 --> 01:21:28,480
Speaker 21: domicile was not relevant, and the children born to temporary

1545
01:21:28,600 --> 01:21:32,679
Speaker 21: visitors in the territory of the sovereign were always considered

1546
01:21:32,720 --> 01:21:33,519
Speaker 21: birthright citizens.

1547
01:21:33,520 --> 01:21:36,040
Speaker 15: Well, mswe, I mean everything you say strikes me is yeah,

1548
01:21:36,120 --> 01:21:38,160
Speaker 15: that's the way I read it too. But then what

1549
01:21:38,400 --> 01:21:41,759
Speaker 15: are those twenty domicile.

1550
01:21:41,360 --> 01:21:42,320
Speaker 21: Words doing there?

1551
01:21:42,800 --> 01:21:45,800
Speaker 15: Like you can take some of them and say, I

1552
01:21:45,840 --> 01:21:48,000
Speaker 15: don't know, they were just summarizing the facts of the case,

1553
01:21:48,080 --> 01:21:50,920
Speaker 15: but not all of them. And why did they keep

1554
01:21:51,000 --> 01:21:54,320
Speaker 15: on like why did they sprinkle that in the opinion?

1555
01:21:54,680 --> 01:21:57,639
Speaker 21: Well, I think again that those were the stipulated facts

1556
01:21:57,720 --> 01:22:01,439
Speaker 21: in the case, and it's clear we have textual evidence

1557
01:22:01,720 --> 01:22:04,640
Speaker 21: in the majority opinion that they were simply saying this

1558
01:22:04,800 --> 01:22:09,080
Speaker 21: is an off foresiory application of that controlling rule that

1559
01:22:09,200 --> 01:22:13,320
Speaker 21: comes from the English common law. Justice Gray writes again,

1560
01:22:13,479 --> 01:22:16,240
Speaker 21: after setting out the English common law rule and the exceptions,

1561
01:22:16,280 --> 01:22:19,400
Speaker 21: with the single additional exception for children of members of

1562
01:22:19,479 --> 01:22:23,400
Speaker 21: Indian tribes, that the amendment, in clear words and manifest

1563
01:22:23,479 --> 01:22:27,479
Speaker 21: intent includes the children born within the territory of the

1564
01:22:27,600 --> 01:22:30,760
Speaker 21: United States of all other persons of whatever race or

1565
01:22:30,800 --> 01:22:34,840
Speaker 21: color domiciled within the United States, And as was pointed

1566
01:22:34,880 --> 01:22:40,320
Speaker 21: out earlier, the very next part of that same paragraph,

1567
01:22:40,880 --> 01:22:45,800
Speaker 21: he cites to Webster talking about Thrasher's case, and he

1568
01:22:45,920 --> 01:22:50,440
Speaker 21: says people who were born in this country. Oh allegiance

1569
01:22:50,880 --> 01:22:55,439
Speaker 21: independently of a residence within I'm sorry, foreign nationals. Oh

1570
01:22:55,560 --> 01:22:59,839
Speaker 21: allegiance independently of a residence with intention to continue such residents,

1571
01:23:00,000 --> 01:23:05,200
Speaker 21: independently of any domiciliation, and independently of taking any oath

1572
01:23:05,320 --> 01:23:09,599
Speaker 21: of allegiance, which is totally contrary to both the government's

1573
01:23:09,640 --> 01:23:13,680
Speaker 21: theory of dual allegiance or partial allegiance and to the

1574
01:23:13,760 --> 01:23:14,880
Speaker 21: theory of domiciliation.

1575
01:23:15,400 --> 01:23:18,960
Speaker 14: I mean, I would I might agree with you if

1576
01:23:19,040 --> 01:23:23,280
Speaker 14: domicile had simply been sprinkled in the opinion.

1577
01:23:23,960 --> 01:23:27,439
Speaker 7: But in wan kim Ark. It's a long opinion.

1578
01:23:27,560 --> 01:23:30,600
Speaker 14: But it begins by saying, here's the question, and it

1579
01:23:30,880 --> 01:23:34,960
Speaker 14: ends by coming back to the question, and it says,

1580
01:23:35,760 --> 01:23:39,080
Speaker 14: here's the question stated at the beginning of the opinion, namely,

1581
01:23:39,120 --> 01:23:42,080
Speaker 14: whether a child born in the United States are parents

1582
01:23:42,120 --> 01:23:44,320
Speaker 14: of Chinese descent who at the time of his birth

1583
01:23:44,400 --> 01:23:47,160
Speaker 14: are subjects of the Emperor of China but had a

1584
01:23:47,280 --> 01:23:51,479
Speaker 14: permanent domicile and residents in the United States, and are

1585
01:23:51,520 --> 01:23:55,200
Speaker 14: they are carrying on business? And he states the diplomatic exception,

1586
01:23:55,320 --> 01:23:58,599
Speaker 14: and he says, for the reasons above stated, this Court

1587
01:23:58,760 --> 01:24:02,120
Speaker 14: is of the opinion that question must be answered in

1588
01:24:02,200 --> 01:24:06,439
Speaker 14: the affirmative, So why put domicile in? Sometimes it's hard

1589
01:24:06,479 --> 01:24:08,160
Speaker 14: to figure out what is the holding of the case.

1590
01:24:08,240 --> 01:24:10,720
Speaker 14: Here he tells us, this is the holding of the case.

1591
01:24:10,760 --> 01:24:15,679
Speaker 14: Why put domicile in there? It's just something It's something irrelevant.

1592
01:24:15,080 --> 01:24:16,120
Speaker 7: That he wanted to throw in.

1593
01:24:16,240 --> 01:24:19,439
Speaker 14: It's like, you know, whether a child born in the

1594
01:24:19,600 --> 01:24:23,479
Speaker 14: United States or of parents of Chinese descent who once

1595
01:24:23,640 --> 01:24:28,240
Speaker 14: resided at a particular address in San Francisco, who attempted

1596
01:24:28,280 --> 01:24:29,479
Speaker 14: to enter the country at.

1597
01:24:29,439 --> 01:24:32,160
Speaker 7: The Port of San Francisco. Why put it in if

1598
01:24:32,200 --> 01:24:32,960
Speaker 7: it's irrelevant?

1599
01:24:33,560 --> 01:24:36,800
Speaker 21: Well, Justice leto all I can. I'll give you two responses.

1600
01:24:36,880 --> 01:24:39,280
Speaker 21: The first is that, again, it was a stipulated fact.

1601
01:24:40,360 --> 01:24:44,120
Speaker 21: The second is that, regardless of what the judgment in

1602
01:24:44,200 --> 01:24:47,400
Speaker 21: the case was, which again was an off fortiori application

1603
01:24:47,600 --> 01:24:50,519
Speaker 21: of the rule of decision, the rule of decision in

1604
01:24:50,640 --> 01:24:55,000
Speaker 21: wonkim Ark has binding presidential effect. Even if you think

1605
01:24:55,439 --> 01:24:59,519
Speaker 21: that wonkim Arc decided the case based on the stipulated facts,

1606
01:25:00,000 --> 01:25:02,840
Speaker 21: you have to follow that controlling rule of decision. And

1607
01:25:03,600 --> 01:25:06,240
Speaker 21: if you follow that rule, you get to the same

1608
01:25:06,320 --> 01:25:10,519
Speaker 21: result for people without domicile. Wankm Mark says six times

1609
01:25:11,160 --> 01:25:13,400
Speaker 21: in the first parts of the opinion, as well as

1610
01:25:13,439 --> 01:25:16,760
Speaker 21: on the page the government focuses on that domicile is

1611
01:25:17,000 --> 01:25:17,959
Speaker 21: not relevant.

1612
01:25:19,600 --> 01:25:21,439
Speaker 16: On that, what do we do with the fact that

1613
01:25:21,800 --> 01:25:27,320
Speaker 16: after walkim Mark, at least some authorities took the view

1614
01:25:27,360 --> 01:25:33,479
Speaker 16: that the non domicillary question wasn't decided, remained open, and

1615
01:25:33,640 --> 01:25:38,240
Speaker 16: even continued to press the view that domicile is required. Now,

1616
01:25:38,320 --> 01:25:39,880
Speaker 16: I know you've got a lot of good stuff on

1617
01:25:39,960 --> 01:25:42,760
Speaker 16: your side too, but what do we do with the

1618
01:25:42,840 --> 01:25:47,080
Speaker 16: fact that many sound legal authorities thought it remained in

1619
01:25:47,160 --> 01:25:50,080
Speaker 16: open question, even if one of them wasn't John Marshall Harlan.

1620
01:25:51,720 --> 01:25:55,679
Speaker 21: I liked your example from Justice Harlan's lecture here in DC.

1621
01:25:56,400 --> 01:25:58,880
Speaker 21: So here's what I would say. All of the government's

1622
01:25:58,920 --> 01:26:03,960
Speaker 21: citations in their brief generally either were rejected by wonkim

1623
01:26:04,000 --> 01:26:06,360
Speaker 21: Mark expressly if they predated wonecast.

1624
01:26:06,840 --> 01:26:09,960
Speaker 16: If we're trying to understand how the legal community understood

1625
01:26:10,520 --> 01:26:13,880
Speaker 16: what happened in wonk Mark, seems to me it's a mess.

1626
01:26:14,360 --> 01:26:16,680
Speaker 16: So maybe you can persuade me otherwise.

1627
01:26:17,200 --> 01:26:20,560
Speaker 21: I think I can justice course it. First, As to

1628
01:26:20,640 --> 01:26:24,080
Speaker 21: the post wonk Mark authorities, the government sites each one

1629
01:26:24,160 --> 01:26:27,679
Speaker 21: of them is inconsistent with wonk Mark's reasoning or doesn't

1630
01:26:27,760 --> 01:26:31,200
Speaker 21: mention it at all. Most of them are have very

1631
01:26:31,240 --> 01:26:34,680
Speaker 21: little reasoning at all. And in contrast, what we have

1632
01:26:34,840 --> 01:26:39,160
Speaker 21: on our side post Wonki Mark is numerous federal court

1633
01:26:39,240 --> 01:26:43,720
Speaker 21: decisions around the time of wonky Mark between ratification and

1634
01:26:43,800 --> 01:26:47,840
Speaker 21: Wonka Mark that said that domicile is not relevant. They

1635
01:26:47,920 --> 01:26:50,880
Speaker 21: cited Lynch versus Clark, which again was about the daughter

1636
01:26:50,960 --> 01:26:54,840
Speaker 21: of temporary sojournals. We have the sixth edition of Kent,

1637
01:26:54,960 --> 01:26:57,200
Speaker 21: which was cited in wonkim Mark, and of course was

1638
01:26:57,280 --> 01:27:01,000
Speaker 21: then cited after wangkam Mark was decided by many authorities,

1639
01:27:01,160 --> 01:27:05,439
Speaker 21: again discussing temporary sojourners. Anyone who wanted to know what

1640
01:27:05,560 --> 01:27:08,599
Speaker 21: the law of citizenship was under the fourteenth Amendment after

1641
01:27:08,720 --> 01:27:11,559
Speaker 21: wankim Mark would go to the sixth edition of Kent

1642
01:27:11,800 --> 01:27:14,360
Speaker 21: where he says in that footnote on page thirty eight

1643
01:27:15,000 --> 01:27:18,920
Speaker 21: that the rule was Lynch versus Clark and temporary sojourner's

1644
01:27:19,000 --> 01:27:22,960
Speaker 21: children are US citizens. We have members of Congress speaking

1645
01:27:23,040 --> 01:27:26,320
Speaker 21: on the record on debates on immigration laws where they

1646
01:27:26,360 --> 01:27:30,519
Speaker 21: were finally passing these immigration restrictions that Senator Cowan wanted,

1647
01:27:31,280 --> 01:27:34,280
Speaker 21: and they all stated either that Lynch was the rule

1648
01:27:34,800 --> 01:27:37,920
Speaker 21: that Attorney General Bates had stated the rule again citing

1649
01:27:38,000 --> 01:27:41,679
Speaker 21: Lynch or Kent and stating the rule that everyone born

1650
01:27:41,720 --> 01:27:46,400
Speaker 21: in the US is a citizen and saying, look, children

1651
01:27:46,520 --> 01:27:50,600
Speaker 21: of Chinese immigrants, these immigrants were unwelcome, These immigrants that

1652
01:27:50,720 --> 01:27:53,280
Speaker 21: Congress is now trying to bar from entering the United

1653
01:27:53,320 --> 01:27:56,519
Speaker 21: States if they are children born in the United States

1654
01:27:56,600 --> 01:28:00,360
Speaker 21: are citizens. We have an eighteen ninety six so a

1655
01:28:00,400 --> 01:28:02,719
Speaker 21: couple of years before wonkym work, but in eighteen ninety

1656
01:28:02,800 --> 01:28:06,960
Speaker 21: six State Department regulation which said the US born children

1657
01:28:07,040 --> 01:28:11,559
Speaker 21: of foreign nationals are US citizens, accepting only the children

1658
01:28:11,600 --> 01:28:15,080
Speaker 21: of ambassadors. And then you have Marshall Woodworth, who is

1659
01:28:15,120 --> 01:28:17,840
Speaker 21: a US attorney, who writes in a Larry View article

1660
01:28:18,720 --> 01:28:22,960
Speaker 21: that he's talking specifically about temporary sojourner's children, and he says,

1661
01:28:24,200 --> 01:28:26,920
Speaker 21: I don't think that's a good rule from a policy perspective,

1662
01:28:27,080 --> 01:28:28,679
Speaker 21: but that's the general rule.

1663
01:28:29,200 --> 01:28:29,679
Speaker 7: Miss Line.

1664
01:28:29,680 --> 01:28:33,519
Speaker 14: Can I, yes, Loti Smith, Can I offer a possible

1665
01:28:34,040 --> 01:28:39,479
Speaker 14: explanation for why Justice Gray made a point of putting

1666
01:28:39,680 --> 01:28:43,479
Speaker 14: domicile in what he said was the holding of the case.

1667
01:28:44,439 --> 01:28:45,160
Speaker 2: And it is this.

1668
01:28:47,400 --> 01:28:51,840
Speaker 14: Wan kim Arc and his parents had they come to

1669
01:28:51,960 --> 01:28:56,360
Speaker 14: the United States from Europe could have been naturalized, but

1670
01:28:56,520 --> 01:28:59,600
Speaker 14: because they were Chinese, they could not be naturalized. And

1671
01:28:59,720 --> 01:29:04,960
Speaker 14: they had done everything that they could to make themselves

1672
01:29:05,120 --> 01:29:10,000
Speaker 14: Americans by establishing a domicile in the United.

1673
01:29:09,720 --> 01:29:12,559
Speaker 7: States, and so that's what this was about.

1674
01:29:12,720 --> 01:29:17,760
Speaker 14: He couldn't get naturalized because of a racist law, but

1675
01:29:17,920 --> 01:29:22,240
Speaker 14: they had done everything they could to become part of

1676
01:29:22,400 --> 01:29:26,320
Speaker 14: the American society at the time. At the same time,

1677
01:29:26,840 --> 01:29:32,599
Speaker 14: there were many, many men who were horribly exploited, brought

1678
01:29:32,640 --> 01:29:36,639
Speaker 14: to the United States to work on the Transcontinental Railroad,

1679
01:29:36,720 --> 01:29:38,560
Speaker 14: to work in minds.

1680
01:29:40,479 --> 01:29:41,880
Speaker 7: They were watching work to death.

1681
01:29:42,400 --> 01:29:46,439
Speaker 14: They were treated horrifically, but they were not They were

1682
01:29:46,520 --> 01:29:50,720
Speaker 14: overwhelmingly men. There wasn't an indication that they would stay here.

1683
01:29:50,840 --> 01:29:52,599
Speaker 14: They could stay here, they didn't.

1684
01:29:52,439 --> 01:29:53,439
Speaker 7: Have permanent homes.

1685
01:29:53,840 --> 01:29:58,240
Speaker 14: And the opinion is drawing a distinction between those two

1686
01:29:58,479 --> 01:30:01,919
Speaker 14: categories of peace people who would have been well understood

1687
01:30:01,960 --> 01:30:03,639
Speaker 14: at the time when Wan Kim Mark.

1688
01:30:03,640 --> 01:30:07,320
Speaker 21: Was decided no justice leto. I don't think that's a

1689
01:30:07,360 --> 01:30:12,000
Speaker 21: plausible explanation for why domiciles mentioned in Wankim Mark, because

1690
01:30:12,040 --> 01:30:15,519
Speaker 21: again the controlling rule of decision, based on the English

1691
01:30:15,560 --> 01:30:19,240
Speaker 21: common law and cases from Schooner Exchange to Lynch versus

1692
01:30:19,320 --> 01:30:22,880
Speaker 21: Clerk to state versus manual, which was the North Carolina

1693
01:30:23,439 --> 01:30:25,960
Speaker 21: decision that said, look, the rule in the United States

1694
01:30:26,040 --> 01:30:29,920
Speaker 21: from independence on has been the English common law rule.

1695
01:30:30,720 --> 01:30:34,479
Speaker 21: It's that explanation would be inconsistent if Miss.

1696
01:30:34,360 --> 01:30:38,519
Speaker 18: Wall isn't that explanation. I take Justice Alito's point, and

1697
01:30:38,600 --> 01:30:41,400
Speaker 18: I think he actually makes a good one in the

1698
01:30:41,520 --> 01:30:47,680
Speaker 18: sense that it could be that Justice Gray emphasized domicile

1699
01:30:48,479 --> 01:30:53,160
Speaker 18: to help the public accept the outcome of this case.

1700
01:30:54,400 --> 01:30:58,920
Speaker 18: You're suggesting that the emphasis on domicile was not a

1701
01:30:59,000 --> 01:31:02,760
Speaker 18: part of the rule, meaning he wasn't saying you had

1702
01:31:02,880 --> 01:31:06,680
Speaker 18: to be like a foreigner who is doing everything they

1703
01:31:06,800 --> 01:31:10,000
Speaker 18: can and who can't be naturalized. But he might have

1704
01:31:10,160 --> 01:31:15,639
Speaker 18: emphasized those facts in this case precisely because Chinese immigrants

1705
01:31:15,680 --> 01:31:19,240
Speaker 18: were unwanted, precisely because he had to get this out

1706
01:31:19,320 --> 01:31:22,240
Speaker 18: into the public and people were going to say, WHOA

1707
01:31:22,960 --> 01:31:25,640
Speaker 18: You're saying, these people have to this baby has to

1708
01:31:25,680 --> 01:31:28,880
Speaker 18: be a citizen. And so one could imagine that it

1709
01:31:29,000 --> 01:31:33,360
Speaker 18: was important from a standpoint of helping people accept this

1710
01:31:33,479 --> 01:31:38,000
Speaker 18: citizen rule under these circumstances, to emphasize that these particular

1711
01:31:38,160 --> 01:31:43,560
Speaker 18: people in this case were in Justice Alito's first category.

1712
01:31:44,560 --> 01:31:47,960
Speaker 21: I think that is very possible, Justice Jackson, and as

1713
01:31:48,040 --> 01:31:49,880
Speaker 21: evidence of that, I would point to the fact that

1714
01:31:50,400 --> 01:31:52,800
Speaker 21: if you look at the briefing in wonk him Arc,

1715
01:31:53,439 --> 01:31:56,439
Speaker 21: you'll see that even though the parties had stipulated in

1716
01:31:56,960 --> 01:32:02,200
Speaker 21: the district court that Wanki Mark's parents were domiciled in

1717
01:32:02,280 --> 01:32:05,479
Speaker 21: the United States, when the case came to the Supreme Court,

1718
01:32:05,560 --> 01:32:09,839
Speaker 21: the government's brief argued that it was impossible for Chinese

1719
01:32:10,479 --> 01:32:14,280
Speaker 21: immigrants to have domicile because they expressed the view that

1720
01:32:14,479 --> 01:32:18,920
Speaker 21: was common among people who opposed immigration by Chinese nationals

1721
01:32:19,200 --> 01:32:21,720
Speaker 21: to the United States. There was a common view that

1722
01:32:21,960 --> 01:32:26,720
Speaker 21: Chinese people were inherently temporary sojourners in the country. And

1723
01:32:26,840 --> 01:32:29,559
Speaker 21: so I do think it's possible Justice Alito and Justice

1724
01:32:29,640 --> 01:32:33,160
Speaker 21: Jackson that he was trying to dispel that notion and

1725
01:32:33,280 --> 01:32:34,360
Speaker 21: tell the government.

1726
01:32:34,280 --> 01:32:36,960
Speaker 18: That at least it reads as though he's trying to

1727
01:32:37,960 --> 01:32:42,360
Speaker 18: calm everyone down. These particular people were domiciled, But we're

1728
01:32:42,600 --> 01:32:45,840
Speaker 18: following the English common law rule, and when you look

1729
01:32:45,880 --> 01:32:49,679
Speaker 18: at the English Commons law rule, domicile is not a factor.

1730
01:32:50,360 --> 01:32:53,760
Speaker 21: That's right. I think you know who knows why the

1731
01:32:53,880 --> 01:32:57,200
Speaker 21: majority opinion mentioned domicile we know as a stipulated fact.

1732
01:32:57,520 --> 01:32:59,920
Speaker 21: We know the government tried to renege on that stipul

1733
01:33:00,960 --> 01:33:04,400
Speaker 21: and rely on this assumption on the part of anti

1734
01:33:04,520 --> 01:33:10,240
Speaker 21: Chinese advocates at that time that Chinese people couldn't form

1735
01:33:11,600 --> 01:33:14,519
Speaker 21: a domicile in the United States, and he followed the

1736
01:33:14,560 --> 01:33:15,719
Speaker 21: English common law rules.

1737
01:33:18,200 --> 01:33:20,040
Speaker 17: I just wanted to ask you a question about how

1738
01:33:20,080 --> 01:33:23,920
Speaker 17: the exceptions fit within the general rule. You've called them exceptions,

1739
01:33:24,120 --> 01:33:26,280
Speaker 17: and some of the common law sources call them exceptions.

1740
01:33:26,320 --> 01:33:29,200
Speaker 17: So I take that point. But if we think of

1741
01:33:29,320 --> 01:33:32,720
Speaker 17: you solely as tied to the territory, and we look

1742
01:33:32,760 --> 01:33:36,640
Speaker 17: at the exceptions as territorial in a sense, then they

1743
01:33:36,720 --> 01:33:39,519
Speaker 17: seem kind of like natural outgrowths of that rule. And

1744
01:33:39,640 --> 01:33:41,920
Speaker 17: this is what I mean, and this is where I

1745
01:33:42,000 --> 01:33:44,599
Speaker 17: want your help with how the exceptions played out in practice.

1746
01:33:45,400 --> 01:33:50,240
Speaker 17: If you look at Indian reservations as unique places because

1747
01:33:50,680 --> 01:33:55,160
Speaker 17: Indians were quasi sovereigns, separate nations in the American system,

1748
01:33:55,960 --> 01:34:01,160
Speaker 17: if you look at occupied alien territory as territory that's

1749
01:34:01,240 --> 01:34:03,840
Speaker 17: outside the jurisdiction of the United States. And then if

1750
01:34:03,880 --> 01:34:07,439
Speaker 17: you look at the diplomatic exception, almost like diplomats and

1751
01:34:07,520 --> 01:34:10,600
Speaker 17: their children have little bubbles around them, like the embassy

1752
01:34:10,840 --> 01:34:13,599
Speaker 17: is really the territory of that country, and even when

1753
01:34:13,640 --> 01:34:16,800
Speaker 17: they're traveling around, they're all not subject to the jurisdiction

1754
01:34:16,960 --> 01:34:21,000
Speaker 17: by virtue of this territorial fiction. Are those just applications

1755
01:34:21,040 --> 01:34:25,799
Speaker 17: of the rule? And if they are, then what happens

1756
01:34:25,920 --> 01:34:30,080
Speaker 17: to alien enemies like the German spies and ex parte Querin,

1757
01:34:30,600 --> 01:34:34,080
Speaker 17: or what happens to Indians who are actually not on

1758
01:34:34,200 --> 01:34:38,320
Speaker 17: the reservation but maybe born, say in Baton Rouge. How

1759
01:34:38,400 --> 01:34:40,719
Speaker 17: does the rule apply in those situations? Does it travel

1760
01:34:40,800 --> 01:34:43,080
Speaker 17: with the person or is it tied in some sense

1761
01:34:43,160 --> 01:34:43,679
Speaker 17: to the land.

1762
01:34:44,360 --> 01:34:48,800
Speaker 21: Sure, so let me answer each part in turn. So

1763
01:34:49,040 --> 01:34:52,160
Speaker 21: the thing that all of the exceptions have in common, again,

1764
01:34:52,520 --> 01:34:57,240
Speaker 21: is this sense that the person has this fiction of

1765
01:34:57,320 --> 01:35:02,120
Speaker 21: extra territori extra territoriality around them. Let's set aside the

1766
01:35:02,200 --> 01:35:04,600
Speaker 21: Indian tribal exception for a moment and come back to it.

1767
01:35:05,280 --> 01:35:09,240
Speaker 21: So the example of enemy aliens, for example X Party

1768
01:35:09,280 --> 01:35:13,600
Speaker 21: Kieran is one that is answered by justice story in

1769
01:35:13,720 --> 01:35:18,120
Speaker 21: both English and in Rice. And the touchstone under the

1770
01:35:18,200 --> 01:35:22,720
Speaker 21: American application of English common law was that in wartime

1771
01:35:23,000 --> 01:35:28,360
Speaker 21: the touchstone is whether there's a foreign occupation of us territory,

1772
01:35:29,160 --> 01:35:29,960
Speaker 21: and that's just an.

1773
01:35:29,920 --> 01:35:32,759
Speaker 17: Interupt for one second. Sure, and that is territorial. Sometimes

1774
01:35:32,880 --> 01:35:34,759
Speaker 17: it just seemed to me that the rule varied. Sometimes

1775
01:35:34,800 --> 01:35:37,880
Speaker 17: it was stated as enemy alien and sometimes it was

1776
01:35:37,960 --> 01:35:39,639
Speaker 17: focused on occupied territory.

1777
01:35:39,960 --> 01:35:43,320
Speaker 21: Sure, So the rule, I don't think there's a separate

1778
01:35:43,400 --> 01:35:47,080
Speaker 21: rule for enemy aliens. And the government's briefs describe the

1779
01:35:47,280 --> 01:35:50,080
Speaker 21: exception as an enemy alien exception. I don't think that

1780
01:35:50,360 --> 01:35:53,120
Speaker 21: is the best way to think about it. Rice and

1781
01:35:53,200 --> 01:35:57,800
Speaker 21: English tell you that when the British forces are occupying

1782
01:35:57,880 --> 01:36:02,280
Speaker 21: Casting in Maine is subject to US jurisdiction there because

1783
01:36:02,560 --> 01:36:06,680
Speaker 21: Britain is ruling, is governing Casting Maine. And just as

1784
01:36:06,680 --> 01:36:10,320
Speaker 21: story explains, look if the US then retakes that territory,

1785
01:36:10,920 --> 01:36:14,120
Speaker 21: people babies who were born to US citizens by what

1786
01:36:14,240 --> 01:36:19,639
Speaker 21: he called postlimony become US citizens. So that's the way

1787
01:36:19,680 --> 01:36:23,720
Speaker 21: to think about any wartime situation, enemy aliens or otherwise.

1788
01:36:24,520 --> 01:36:27,920
Speaker 21: As we heard earlier, Professor Muller's A meek us brief

1789
01:36:28,000 --> 01:36:31,719
Speaker 21: tells us how we've thought about enemy aliens in wartime.

1790
01:36:32,160 --> 01:36:34,880
Speaker 21: Even in World War Two, when the United States was

1791
01:36:35,000 --> 01:36:39,280
Speaker 21: detaining Japanese nationals who were deemed enemy aliens in the

1792
01:36:39,400 --> 01:36:43,599
Speaker 21: United States, when those enemy aliens had babies in these

1793
01:36:43,720 --> 01:36:48,679
Speaker 21: detention camps, everyone agreed that those babies were US citizens,

1794
01:36:48,760 --> 01:36:51,479
Speaker 21: And Professor Muller goes on to explain that, you know,

1795
01:36:51,520 --> 01:36:54,639
Speaker 21: there are many cases of those US citizens going onto

1796
01:36:54,720 --> 01:36:58,200
Speaker 21: a lifetime of government service to the United States. Everyone

1797
01:36:58,280 --> 01:37:01,280
Speaker 21: agrees those babies are US citizens like everyone else. So

1798
01:37:01,479 --> 01:37:06,000
Speaker 21: again the touchstone for enemy aliens is so what about Indians?

1799
01:37:06,360 --> 01:37:08,960
Speaker 17: What about the Indian who's off the reservation or born

1800
01:37:09,040 --> 01:37:09,919
Speaker 17: off of a reservation.

1801
01:37:10,080 --> 01:37:13,800
Speaker 21: Sure, so to start with the basics, the I'll refer

1802
01:37:13,920 --> 01:37:16,120
Speaker 21: to the Indian tribal exception, just to use the term

1803
01:37:16,200 --> 01:37:20,640
Speaker 21: of art. The Indian tribal exception versus Wilkins tells us

1804
01:37:21,160 --> 01:37:25,960
Speaker 21: comes from the constitutionally unique status of Indian tribes in

1805
01:37:26,040 --> 01:37:29,639
Speaker 21: the Indian Commerce Clause. We know that tribes are treated

1806
01:37:30,120 --> 01:37:34,479
Speaker 21: as basically quasi sovereign nations. We know that from the

1807
01:37:34,560 --> 01:37:37,679
Speaker 21: Marshal trilogy of cases. We know from Worcester versus Georgia,

1808
01:37:38,040 --> 01:37:42,080
Speaker 21: where Chief Justice Marshall said that the tribes are essentially

1809
01:37:42,479 --> 01:37:44,400
Speaker 21: a distinct political community.

1810
01:37:44,439 --> 01:37:46,400
Speaker 17: Well, I understand all that. So, just at our hundrance

1811
01:37:46,439 --> 01:37:49,120
Speaker 17: of time, just to try to to how I understand

1812
01:37:49,200 --> 01:37:52,320
Speaker 17: why the Indians are treated differently for purposes of the law.

1813
01:37:52,479 --> 01:37:55,160
Speaker 17: But I want to know is it tied to territory

1814
01:37:55,320 --> 01:37:57,599
Speaker 17: or is it tied to the status of someone as

1815
01:37:57,640 --> 01:38:00,800
Speaker 17: a member of a tribe, Because if you're looking at

1816
01:38:00,840 --> 01:38:03,479
Speaker 17: it because of the special relationship of Indians to the

1817
01:38:03,600 --> 01:38:06,679
Speaker 17: United States as a matter of the Constitution, et cetera, well,

1818
01:38:06,800 --> 01:38:09,320
Speaker 17: I mean citizens of France are citizens of a different

1819
01:38:09,400 --> 01:38:10,200
Speaker 17: sovereign as well.

1820
01:38:10,800 --> 01:38:14,759
Speaker 21: Sure, so Elk versus Wilkins doesn't really answer that question.

1821
01:38:15,960 --> 01:38:18,439
Speaker 21: The court says there are two ways to look at this.

1822
01:38:19,439 --> 01:38:22,880
Speaker 21: Either you look at it as the tribal member is

1823
01:38:23,000 --> 01:38:26,160
Speaker 21: like an ambassador, or you can look at it like

1824
01:38:26,680 --> 01:38:30,719
Speaker 21: there's a territoriality issue where people are born on tribal

1825
01:38:30,840 --> 01:38:34,519
Speaker 21: lands and therefore they're essentially I think, he says. Justice

1826
01:38:34,560 --> 01:38:36,479
Speaker 21: Gray says, at one point, we might as well be

1827
01:38:36,520 --> 01:38:38,200
Speaker 21: talking about someone who's born in Mexico.

1828
01:38:38,400 --> 01:38:40,160
Speaker 16: Well, there's a lot of in Elk, and some of

1829
01:38:40,200 --> 01:38:42,479
Speaker 16: it's not terribly helpful for you, it seems to me

1830
01:38:42,640 --> 01:38:49,439
Speaker 16: because just as Gray again strikes again, says that they

1831
01:38:49,520 --> 01:38:53,479
Speaker 16: may be subject in some degree or respect to the

1832
01:38:53,600 --> 01:38:56,920
Speaker 16: United States, so there's some jurisdiction. He says, they're born

1833
01:38:57,000 --> 01:39:01,720
Speaker 16: with the in the geographic limits, they are a geographical

1834
01:39:01,840 --> 01:39:05,720
Speaker 16: sense born in the United States. But because they are

1835
01:39:05,800 --> 01:39:10,160
Speaker 16: not completely subject to the jurisdiction of the United States,

1836
01:39:10,200 --> 01:39:14,519
Speaker 16: and oh allegiance distinct from the United States, that's what

1837
01:39:14,680 --> 01:39:18,800
Speaker 16: takes them outside. And that language, it sure sounds a

1838
01:39:18,960 --> 01:39:23,559
Speaker 16: lot like the Solicitor General's presentation today to.

1839
01:39:23,640 --> 01:39:26,880
Speaker 21: The contrary justice course such I embrace that part of

1840
01:39:27,120 --> 01:39:30,759
Speaker 21: Elk versus Wilkins as holding justice. Gray of course wrote

1841
01:39:30,800 --> 01:39:31,760
Speaker 21: both Wonk Kim Martin.

1842
01:39:31,840 --> 01:39:33,559
Speaker 16: I know, and it's a struggle.

1843
01:39:33,680 --> 01:39:35,840
Speaker 21: Sure, let me try to help you out with that.

1844
01:39:37,040 --> 01:39:41,599
Speaker 21: So you know, the government tries to make it seem

1845
01:39:41,640 --> 01:39:44,479
Speaker 21: as though what sets the exceptions apart, what defines the

1846
01:39:44,600 --> 01:39:49,080
Speaker 21: exceptions is that the government has some maximum theoretical power.

1847
01:39:50,240 --> 01:39:54,960
Speaker 21: The government could have exercise plenary regulatory power over the tribes,

1848
01:39:55,479 --> 01:39:59,400
Speaker 21: and therefore that's the same situation as a foreign national

1849
01:39:59,720 --> 01:40:03,280
Speaker 21: in the United States. But that's actually not true because remember,

1850
01:40:03,760 --> 01:40:09,600
Speaker 21: if there's always this background notion, whatever the parameters of

1851
01:40:09,760 --> 01:40:13,360
Speaker 21: the relationship between the United States government and tribal nations,

1852
01:40:13,479 --> 01:40:18,799
Speaker 21: at that time of ratification, there was this constitutionally distinct

1853
01:40:19,360 --> 01:40:24,160
Speaker 21: status of the tribes and tribal members setting them excluding

1854
01:40:24,240 --> 01:40:28,080
Speaker 21: from apportionment which came was renewed in the fourteenth Amendment.

1855
01:40:28,600 --> 01:40:31,960
Speaker 21: And that's not true foreign nationals. If the government were

1856
01:40:32,200 --> 01:40:35,920
Speaker 21: right that the question is what's the maximum theoretical power

1857
01:40:36,000 --> 01:40:38,720
Speaker 21: the government has, there'd be no ambassador exception, because of

1858
01:40:38,800 --> 01:40:41,760
Speaker 21: course the United States could decide in some instance to

1859
01:40:41,840 --> 01:40:45,040
Speaker 21: go ahead and prosecute an ambassador. There would be intra

1860
01:40:45,160 --> 01:40:50,000
Speaker 21: sovereign comedy considerations there. That's how you define the exceptions.

1861
01:40:50,200 --> 01:40:54,320
Speaker 21: And as Wang King Mark says, versus Wilkins has no

1862
01:40:54,479 --> 01:40:56,880
Speaker 21: bearing on the question of foreign nationals.

1863
01:40:57,840 --> 01:41:02,400
Speaker 13: Miss Swang, on the earlier answer you gave to Justice

1864
01:41:02,479 --> 01:41:08,240
Speaker 13: Corsage on the temporary sojournals cases, those were distinct cases, correct,

1865
01:41:08,360 --> 01:41:12,200
Speaker 13: where the parents had come to the US and didn't

1866
01:41:12,280 --> 01:41:15,480
Speaker 13: want to give citizenship to their kids, took them out immediately.

1867
01:41:15,600 --> 01:41:15,920
Speaker 7: Correct.

1868
01:41:16,920 --> 01:41:18,760
Speaker 21: I'm sorry, just as sonoma Ar, I'm not sure which

1869
01:41:18,920 --> 01:41:19,920
Speaker 21: cases you're referring to.

1870
01:41:20,120 --> 01:41:24,400
Speaker 13: All right, oh, that we can look at okay, And miss.

1871
01:41:24,280 --> 01:41:27,840
Speaker 14: Wang, would you agree that the citizenship test in the

1872
01:41:27,880 --> 01:41:31,720
Speaker 14: Fourteenth Amendment is the same as the test in the

1873
01:41:31,840 --> 01:41:35,600
Speaker 14: eighteen sixty six Civil Rights Act, So the.

1874
01:41:35,880 --> 01:41:39,560
Speaker 21: Words are obviously different. What Wogkim Mark tells us, and

1875
01:41:39,680 --> 01:41:43,240
Speaker 21: what the debates tell us is that the framers, they

1876
01:41:43,240 --> 01:41:45,599
Speaker 21: would say it was the same Congress, obviously framing both.

1877
01:41:46,000 --> 01:41:48,559
Speaker 21: Congress was trying to do the same thing with both

1878
01:41:48,600 --> 01:41:51,559
Speaker 21: the eighteen sixty six Act and with the fourteenth Amendment.

1879
01:41:51,880 --> 01:41:54,439
Speaker 21: They wanted to capture the common law exceptions and the

1880
01:41:54,520 --> 01:41:57,880
Speaker 21: Indian tribal exception. They started out with the two separate

1881
01:41:57,920 --> 01:42:02,040
Speaker 21: phrases not subject to any foreign power plus excluding Indians

1882
01:42:02,120 --> 01:42:04,760
Speaker 21: not taxed, And as Justice Gray described it in his

1883
01:42:04,840 --> 01:42:07,680
Speaker 21: majority opinion, one can mark they decided to switch to

1884
01:42:07,760 --> 01:42:09,759
Speaker 21: the affirmative phrase subject to the jurisdiction.

1885
01:42:10,240 --> 01:42:12,799
Speaker 14: Yeah, well, do they mean the same thing? And wouldn't

1886
01:42:12,840 --> 01:42:17,080
Speaker 14: it be very odd if the citizenship tests in the

1887
01:42:17,200 --> 01:42:21,800
Speaker 14: fourteenth Amendment were broader than the citizenship tests in the

1888
01:42:21,920 --> 01:42:25,920
Speaker 14: eighteen sixty six Civil Rights Act, particularly in the light

1889
01:42:26,000 --> 01:42:30,479
Speaker 14: of fact that the eighteen sixty six Civil Rights Act

1890
01:42:31,000 --> 01:42:33,960
Speaker 14: was re enacted after the adoption of the fourteenth Amendment

1891
01:42:34,040 --> 01:42:36,240
Speaker 14: and remained in place until nineteen forty.

1892
01:42:36,920 --> 01:42:39,519
Speaker 21: Sure, the framers were trying to do the same thing

1893
01:42:39,640 --> 01:42:40,599
Speaker 21: with the language in both.

1894
01:42:40,720 --> 01:42:43,400
Speaker 14: Okay, So then I think we can turn to the

1895
01:42:43,520 --> 01:42:47,040
Speaker 14: language of the eighteen sixty six Civil Rights Act, because

1896
01:42:47,200 --> 01:42:51,000
Speaker 14: it's more straightforward, you know, subject to the jurisdiction there

1897
01:42:51,400 --> 01:42:54,719
Speaker 14: is like the you know, the puzzle wrapped in an enigma,

1898
01:42:54,840 --> 01:42:59,439
Speaker 14: wrapped in a mystery. But not subject to any foreign

1899
01:42:59,600 --> 01:43:04,480
Speaker 14: power is pretty straightforward. So let me give you these examples.

1900
01:43:06,320 --> 01:43:10,040
Speaker 14: A boy is born here to an Iranian father who

1901
01:43:10,160 --> 01:43:14,200
Speaker 14: has entered the country illegally. That boy is automatically an

1902
01:43:14,240 --> 01:43:18,000
Speaker 14: Iranian national at birth, and he has a duty to

1903
01:43:18,120 --> 01:43:22,320
Speaker 14: provide military service to the Iranian government. Is he not

1904
01:43:23,240 --> 01:43:25,360
Speaker 14: subject to any foreign power?

1905
01:43:26,240 --> 01:43:28,439
Speaker 21: Not within the meaning of the eighteen sixty six Act,

1906
01:43:28,960 --> 01:43:31,760
Speaker 21: Justice alido. And that's clear from wonkim Ark. And it's

1907
01:43:31,800 --> 01:43:34,880
Speaker 21: clear from the debates what the framers meant by the

1908
01:43:34,920 --> 01:43:37,680
Speaker 21: phrase not subject any foreign power was referring to the

1909
01:43:37,720 --> 01:43:42,200
Speaker 21: ambassador exception. If it meant what the government contends, basically,

1910
01:43:42,320 --> 01:43:45,479
Speaker 21: not a subject of any foreign power, that you were,

1911
01:43:45,640 --> 01:43:49,519
Speaker 21: that another country considers you a you sanguineous citizen, then

1912
01:43:50,200 --> 01:43:53,680
Speaker 21: lawful permanent residence all foreign national, ordinary.

1913
01:43:53,360 --> 01:43:59,160
Speaker 14: Public, ordinary public meaning of that would certainly encompass that boy,

1914
01:43:59,280 --> 01:43:59,760
Speaker 14: would it not.

1915
01:44:00,800 --> 01:44:02,960
Speaker 21: Justice alito? If you think that the language of the

1916
01:44:03,000 --> 01:44:06,280
Speaker 21: eighteen sixty six Act was ambiguous, as wankim Mark says,

1917
01:44:06,840 --> 01:44:09,240
Speaker 21: the shift to the language of the fourteenth Amendment, which

1918
01:44:09,320 --> 01:44:12,720
Speaker 21: is the operative text, certainly clears up any ambiguity.

1919
01:44:13,439 --> 01:44:16,920
Speaker 14: What I said about a boy born to an Iranian

1920
01:44:17,000 --> 01:44:21,880
Speaker 14: father is true of children born here to parents who

1921
01:44:21,920 --> 01:44:25,719
Speaker 14: were nationals of other countries. If I'm correct, It's true

1922
01:44:25,800 --> 01:44:29,479
Speaker 14: to a child who's born here to Russian parents. It's

1923
01:44:29,640 --> 01:44:33,240
Speaker 14: true to a child who's born here to Mexican parents.

1924
01:44:33,320 --> 01:44:37,240
Speaker 14: They're automatically citizens, are nationals of those countries and have

1925
01:44:37,400 --> 01:44:40,880
Speaker 14: a duty of military service. It sure seems like that

1926
01:44:42,120 --> 01:44:45,519
Speaker 14: that makes them subject to a foreign power.

1927
01:44:46,120 --> 01:44:48,560
Speaker 21: But again, Justice Alito, that would have meant that the

1928
01:44:48,960 --> 01:44:55,920
Speaker 21: children of Irish, Italian and other immigrants, which Wankmark refers

1929
01:44:55,960 --> 01:44:59,000
Speaker 21: to and the debate the framers refer to, would not

1930
01:44:59,240 --> 01:45:03,600
Speaker 21: have been citizen either. Because if the only test is

1931
01:45:03,640 --> 01:45:07,920
Speaker 21: whether that US born child is considered a citizen by

1932
01:45:07,960 --> 01:45:11,640
Speaker 21: another country under their u sanguinous laws, then no, no

1933
01:45:11,840 --> 01:45:14,559
Speaker 21: foreign nationals children would be well.

1934
01:45:15,160 --> 01:45:18,360
Speaker 14: In all of those cases, the parents could be naturalized,

1935
01:45:18,439 --> 01:45:23,320
Speaker 14: and then the children would be derivatively nationalized naturalized when the.

1936
01:45:24,840 --> 01:45:31,760
Speaker 7: When the parents were naturalized. Wan kim Arc, I'm sorry,

1937
01:45:32,439 --> 01:45:34,000
Speaker 7: deft uh.

1938
01:45:34,479 --> 01:45:39,040
Speaker 14: Wan kim Arc has a passage explaining how this Court

1939
01:45:39,120 --> 01:45:44,160
Speaker 14: should treat dicta, and it quotes something that John Marshall said.

1940
01:45:44,280 --> 01:45:47,840
Speaker 14: It is well, this is quoting from Wang kim Arc.

1941
01:45:48,000 --> 01:45:50,519
Speaker 14: It is well to bear in mind the oft quoted

1942
01:45:50,560 --> 01:45:54,439
Speaker 14: words of Chief Justice Marshall. It is a maxim not maxim,

1943
01:45:54,600 --> 01:45:58,320
Speaker 14: not to be disregarded that general expressions in every opinion

1944
01:45:58,400 --> 01:46:01,080
Speaker 14: are to be taken in connection with the case in

1945
01:46:01,240 --> 01:46:05,040
Speaker 14: which those expressions are used. If they go beyond the case,

1946
01:46:05,640 --> 01:46:09,400
Speaker 14: they may be respected, but ought not to control the

1947
01:46:10,600 --> 01:46:14,880
Speaker 14: judgment in a subsequent suit when the very point is

1948
01:46:15,000 --> 01:46:20,080
Speaker 14: presented for a decision. So does that fall within the

1949
01:46:20,200 --> 01:46:21,800
Speaker 14: you know what's good for the goose is good for

1950
01:46:21,880 --> 01:46:26,040
Speaker 14: the gander rule. That's how wan kim Arc treats what

1951
01:46:26,280 --> 01:46:30,479
Speaker 14: was said in the Slaughterhouse case cases. Should we apply

1952
01:46:30,600 --> 01:46:33,679
Speaker 14: that same rule to wang kim Arc itself.

1953
01:46:35,040 --> 01:46:38,360
Speaker 21: Wankim Ark tells you what to make of the Slaughterhouse dicta.

1954
01:46:38,920 --> 01:46:42,400
Speaker 21: It was dicta. The issue of citizenship was not at

1955
01:46:42,479 --> 01:46:46,960
Speaker 21: play in Slaughterhouse. And in contrast, the parts of the

1956
01:46:47,120 --> 01:46:50,080
Speaker 21: holding of the parts of the decision that I alluded

1957
01:46:50,120 --> 01:46:54,439
Speaker 21: to are the controlling rule of decision. Again, we looked

1958
01:46:54,479 --> 01:46:57,519
Speaker 21: at the English common law in construing the fourteenth Amendment.

1959
01:46:58,280 --> 01:47:01,240
Speaker 7: Thank you Counsel Justus Thomas. Anything further does as lead

1960
01:47:01,280 --> 01:47:03,160
Speaker 7: over just a couple more questions.

1961
01:47:03,240 --> 01:47:03,880
Speaker 5: So, if.

1962
01:47:05,920 --> 01:47:11,280
Speaker 14: Those who are framed and adopted in the fourteenth Amendment

1963
01:47:11,400 --> 01:47:16,479
Speaker 14: had wanted to limit the citizenship tests to just those

1964
01:47:17,520 --> 01:47:24,679
Speaker 14: specific groups that you concede thought outside the birthright citizenship rule,

1965
01:47:25,200 --> 01:47:28,679
Speaker 14: why didn't they refer specifically to those groups?

1966
01:47:29,760 --> 01:47:31,600
Speaker 7: Why did they adopt the general rule? They could have

1967
01:47:31,640 --> 01:47:34,000
Speaker 7: set all persons born or naturalized.

1968
01:47:33,479 --> 01:47:37,160
Speaker 14: In the United States, excluding Indians, not taxed and those

1969
01:47:37,320 --> 01:47:41,400
Speaker 14: ineligible under common law, are citizens of the United States

1970
01:47:42,000 --> 01:47:44,479
Speaker 14: and of the state wherein they reside. Or they could

1971
01:47:44,479 --> 01:47:47,400
Speaker 14: have set all persons born are naturalized in the United States,

1972
01:47:48,080 --> 01:47:51,520
Speaker 14: excluding Indians, not taxed, and the children of foreign ambassadors

1973
01:47:51,560 --> 01:47:54,960
Speaker 14: are foreign invaders are citizens of the United States and

1974
01:47:55,120 --> 01:47:56,719
Speaker 14: of the state wherein they reside.

1975
01:47:56,760 --> 01:47:59,040
Speaker 7: But they didn't do that. They adopted the general rule.

1976
01:47:59,200 --> 01:47:59,600
Speaker 7: So what's the.

1977
01:48:01,560 --> 01:48:03,720
Speaker 21: I would say. The Wankan work tells us what the

1978
01:48:04,120 --> 01:48:07,519
Speaker 21: explanation is that the framers of the Fourteenth Amendment, after

1979
01:48:07,680 --> 01:48:12,599
Speaker 21: overriding President Johnson's veto, wanted to adopt a universal rule

1980
01:48:12,680 --> 01:48:16,439
Speaker 21: with a closed set of exceptions and they believed that

1981
01:48:16,760 --> 01:48:19,640
Speaker 21: subject to the jurisdiction of the United States did that,

1982
01:48:19,920 --> 01:48:23,679
Speaker 21: and that term does describe both the universal general rule

1983
01:48:24,160 --> 01:48:27,520
Speaker 21: and the common law exceptions, with the sole additional American

1984
01:48:28,040 --> 01:48:29,679
Speaker 21: exception for tribal Indians.

1985
01:48:30,640 --> 01:48:33,479
Speaker 4: Thank you, that's is so, mar Miss Swang.

1986
01:48:34,040 --> 01:48:39,559
Speaker 13: I don't I've not quite understood the Solicitor General's argument

1987
01:48:40,520 --> 01:48:50,320
Speaker 13: that lawful domicile somehow changes the US's dominion over a

1988
01:48:50,439 --> 01:48:57,599
Speaker 13: person or allegiance. Even in Justice Alito's examples, if your

1989
01:48:58,479 --> 01:49:03,200
Speaker 13: parents are Iranian, if you get permanent lawful permanent residency here,

1990
01:49:03,600 --> 01:49:07,320
Speaker 13: that child still by their laws when it leaves the

1991
01:49:07,479 --> 01:49:10,160
Speaker 13: United States must serve in the Iranian army.

1992
01:49:10,280 --> 01:49:10,599
Speaker 7: Correct.

1993
01:49:12,240 --> 01:49:14,880
Speaker 21: Well, I don't know the answer to that. What I

1994
01:49:14,960 --> 01:49:17,960
Speaker 21: can tell you is that under Wong kim Arc, the

1995
01:49:18,080 --> 01:49:23,280
Speaker 21: Court says, we don't care about problems of dual nationality.

1996
01:49:23,800 --> 01:49:27,280
Speaker 21: We don't look to other countries' laws in construing our

1997
01:49:27,400 --> 01:49:28,320
Speaker 21: fourteenth Amendment.

1998
01:49:29,360 --> 01:49:35,559
Speaker 13: Well, it was undisputed there that Wang kim Ark's parents

1999
01:49:37,120 --> 01:49:38,599
Speaker 13: owed loyalties to China.

2000
01:49:38,720 --> 01:49:39,000
Speaker 4: Correct.

2001
01:49:39,120 --> 01:49:42,240
Speaker 13: Sure, Yes, what I'm saying is, even if you become

2002
01:49:43,080 --> 01:49:46,360
Speaker 13: a permanent residence, you're not a US citizen, So your

2003
01:49:46,560 --> 01:49:51,519
Speaker 13: primary loyalty still remains with your citizenship country wherever you

2004
01:49:51,640 --> 01:49:52,040
Speaker 13: came from.

2005
01:49:52,960 --> 01:49:55,080
Speaker 21: That's right. Justice. So Toma R. I take your point.

2006
01:49:55,120 --> 01:50:00,599
Speaker 13: Now you understand what I'm saying. And during temporary whether

2007
01:50:00,680 --> 01:50:04,920
Speaker 13: it's lawful or unlawful, temporary presidence in the United States,

2008
01:50:05,600 --> 01:50:09,439
Speaker 13: you are subject to the US laws. Correct, that's right.

2009
01:50:10,080 --> 01:50:13,360
Speaker 21: The question that the fourteenth Amendment asks is whether the

2010
01:50:13,560 --> 01:50:16,920
Speaker 21: US born child is subject to US jurisdiction when they're.

2011
01:50:16,760 --> 01:50:20,160
Speaker 13: Born, meaning are they within the US territory.

2012
01:50:19,840 --> 01:50:22,519
Speaker 21: Exactly other than the people covered by that closed set

2013
01:50:22,520 --> 01:50:23,160
Speaker 21: of exceptions.

2014
01:50:23,200 --> 01:50:24,320
Speaker 13: Oh, thank you, that's right.

2015
01:50:24,960 --> 01:50:28,719
Speaker 21: In other words, the government's rule, which really is looking

2016
01:50:28,800 --> 01:50:32,200
Speaker 21: at whether someone has a divided allegiance because they're a

2017
01:50:32,400 --> 01:50:35,960
Speaker 21: citizen of another country, would exclude the children of all

2018
01:50:36,160 --> 01:50:40,120
Speaker 21: foreign nationals. And that isn't what they're saying exactly.

2019
01:50:40,600 --> 01:50:45,360
Speaker 13: So the only way that allegiance, lawful or unlawful, has

2020
01:50:45,439 --> 01:50:47,599
Speaker 13: no play in this question.

2021
01:50:48,200 --> 01:50:51,000
Speaker 21: I would say that the relevance of allegiance is the

2022
01:50:51,120 --> 01:50:54,160
Speaker 21: relevance under the English common law rule that's embodied in

2023
01:50:54,200 --> 01:50:57,920
Speaker 21: the fourteenth Amendment, all persons born in the territory of

2024
01:50:57,960 --> 01:51:00,400
Speaker 21: the sovereign owe natural allegiance.

2025
01:51:00,439 --> 01:51:06,040
Speaker 13: Except for the limited three limited exceptions precisely this, I

2026
01:51:06,120 --> 01:51:08,280
Speaker 13: think I'd like to take you back to the first

2027
01:51:08,400 --> 01:51:12,200
Speaker 13: question that Justice Alito asked General Souer, and it was

2028
01:51:12,280 --> 01:51:14,840
Speaker 13: this question of what do we do if we think

2029
01:51:14,880 --> 01:51:17,880
Speaker 13: we have a new problem that didn't exist at the

2030
01:51:17,960 --> 01:51:19,960
Speaker 13: time of the fourteenth Amendment.

2031
01:51:20,400 --> 01:51:23,479
Speaker 15: I don't think actually that the US government argues the

2032
01:51:23,560 --> 01:51:28,320
Speaker 15: case this way, But let's put the US government's arguments

2033
01:51:28,360 --> 01:51:32,280
Speaker 15: aside and just ask something like, well, everything that you're

2034
01:51:32,400 --> 01:51:37,240
Speaker 15: saying would suggest an answer to the question of people

2035
01:51:37,320 --> 01:51:40,880
Speaker 15: who are the children of people who are temporarily in

2036
01:51:41,000 --> 01:51:45,400
Speaker 15: the US but here lawfully. Is there any way that

2037
01:51:45,560 --> 01:51:49,080
Speaker 15: there might be a different answer with respect to the

2038
01:51:49,200 --> 01:51:53,880
Speaker 15: children of people who are here unlawfully because of this

2039
01:51:54,240 --> 01:51:59,360
Speaker 15: new problem issue that Justice Alito has raised.

2040
01:52:00,360 --> 01:52:03,080
Speaker 21: No, there is no difference. And of course, the government's

2041
01:52:03,200 --> 01:52:06,160
Speaker 21: arguments as to people who are unauthorized immigrants in this

2042
01:52:06,240 --> 01:52:10,320
Speaker 21: country all runs through and hinges on their domicile requirement.

2043
01:52:10,960 --> 01:52:12,960
Speaker 21: The first thing I would say in response is that,

2044
01:52:13,200 --> 01:52:16,040
Speaker 21: once again it's crystal clear from wankim Mark and from

2045
01:52:16,080 --> 01:52:19,240
Speaker 21: the debates that the framers of the Fourteenth Amendment meant

2046
01:52:19,320 --> 01:52:23,000
Speaker 21: to have a universal common law rule of citizenship subject

2047
01:52:23,080 --> 01:52:27,519
Speaker 21: to the closed set of exceptions, and we can't take

2048
01:52:27,760 --> 01:52:32,840
Speaker 21: the current administrations policy considerations into account to try to

2049
01:52:33,000 --> 01:52:37,320
Speaker 21: re engineer and radically reinterpret the original meaning of the

2050
01:52:37,360 --> 01:52:40,800
Speaker 21: fourteenth Amendment. The second point I would make is that

2051
01:52:41,040 --> 01:52:45,080
Speaker 21: in fact, the framers did consider the concept and the

2052
01:52:45,280 --> 01:52:49,840
Speaker 21: actual problems of immigration that were coming up at that time.

2053
01:52:50,439 --> 01:52:55,040
Speaker 21: In addition to this notable exchange between Senator and Cowen

2054
01:52:55,439 --> 01:52:59,880
Speaker 21: Senator Cowen and Senator Kanness, where Cowen says, if we

2055
01:53:00,720 --> 01:53:04,240
Speaker 21: have this citizenship clause as part of the Constitution, we

2056
01:53:04,320 --> 01:53:08,360
Speaker 21: are going to encourage these gypsy what he called gypsies

2057
01:53:08,640 --> 01:53:14,080
Speaker 21: Roma in Pennsylvania, whom he characterized as invaders, trespassers, and

2058
01:53:14,160 --> 01:53:17,320
Speaker 21: law breakers. Will encourage them to come into our country

2059
01:53:17,640 --> 01:53:21,360
Speaker 21: because there's children will be citizens, he says. Senator Conness,

2060
01:53:21,560 --> 01:53:24,400
Speaker 21: in your state of California, you will be facing a

2061
01:53:24,560 --> 01:53:29,519
Speaker 21: mass flood of Chinese immigration if we adopt the citizenship rule.

2062
01:53:29,680 --> 01:53:34,040
Speaker 21: And Senator Konness, himself an Irish immigrant, says yes, and

2063
01:53:34,200 --> 01:53:37,040
Speaker 21: I am voting for that because I believe in citizenship

2064
01:53:37,080 --> 01:53:40,920
Speaker 21: by virtue of birth without regard to parentage. And the

2065
01:53:41,000 --> 01:53:44,720
Speaker 21: third point I would make is a historical one, which

2066
01:53:44,800 --> 01:53:48,240
Speaker 21: is that recall that at the time the framers are

2067
01:53:48,400 --> 01:53:53,880
Speaker 21: thinking about birthright citizenship, there're just been fifteen or twenty

2068
01:53:54,000 --> 01:54:01,000
Speaker 21: years of unprecedented immigration from Ireland, where the No Nothing

2069
01:54:01,120 --> 01:54:05,160
Speaker 21: Party was dominant in the eighteen fifties, just a decade earlier,

2070
01:54:06,000 --> 01:54:10,160
Speaker 21: and they were vehemently opposed to Irish immigration. They believed

2071
01:54:10,200 --> 01:54:14,920
Speaker 21: Irish Catholic immigrants were unassimilable and could never become Americans.

2072
01:54:15,400 --> 01:54:19,640
Speaker 21: But even the No Nothing Party members of Congress believed

2073
01:54:19,920 --> 01:54:23,040
Speaker 21: that the children born in the United States to those

2074
01:54:23,200 --> 01:54:27,840
Speaker 21: Irish immigrants were citizens like anyone else. That's the intuition

2075
01:54:29,000 --> 01:54:32,240
Speaker 21: that the framers of the fourteenth Amendment had, contrary to

2076
01:54:32,320 --> 01:54:36,640
Speaker 21: the government. The government's arguments. Now, they wanted to grow

2077
01:54:36,720 --> 01:54:39,000
Speaker 21: this country. They wanted to make sure we had a

2078
01:54:39,080 --> 01:54:43,840
Speaker 21: citizenry to populate the military, to settle the country. And

2079
01:54:44,000 --> 01:54:49,040
Speaker 21: they also had an intuition that was consistent with the

2080
01:54:49,200 --> 01:54:55,120
Speaker 21: founding aversion to inherited rights and disabilities.

2081
01:54:55,720 --> 01:54:56,000
Speaker 13: Thank you.

2082
01:54:57,120 --> 01:55:01,320
Speaker 5: This is course, this is capital on lynchv.

2083
01:55:01,520 --> 01:55:05,760
Speaker 20: Clark, which you cite several times in the brief in today,

2084
01:55:05,920 --> 01:55:09,560
Speaker 20: which I appreciate. The government's response is that that decision

2085
01:55:09,680 --> 01:55:12,720
Speaker 20: was questioned at the time and went unmentioned in congressional

2086
01:55:12,760 --> 01:55:15,080
Speaker 20: debates about the fourteenth Amendment. I just want to get

2087
01:55:15,160 --> 01:55:18,360
Speaker 20: your response to that point on Lynch.

2088
01:55:18,680 --> 01:55:22,920
Speaker 21: Sure not true. Though Lynch was not specifically mentioned by

2089
01:55:23,040 --> 01:55:26,040
Speaker 21: name in the fourteenth Amendment debates, it was a couple

2090
01:55:26,120 --> 01:55:28,920
Speaker 21: months earlier in the debates on the eighteen sixty six Act,

2091
01:55:29,880 --> 01:55:35,600
Speaker 21: where Senator Trumbull, I'm sorry, Senator Lawrence talks about the

2092
01:55:35,680 --> 01:55:39,000
Speaker 21: great case of Lynch versus Clerk, where it was conclusively

2093
01:55:39,080 --> 01:55:42,080
Speaker 21: shown that all children born here are citizens without any

2094
01:55:42,120 --> 01:55:44,760
Speaker 21: regard to the political condition or allegiance of their parents.

2095
01:55:45,200 --> 01:55:47,760
Speaker 21: And then, of course they discussed the children of temporary

2096
01:55:47,760 --> 01:55:49,760
Speaker 21: sojournals elsewhere without mentioning Lynch.

2097
01:55:51,320 --> 01:55:54,000
Speaker 20: I just want to isolate a point that you've mentioned,

2098
01:55:54,080 --> 01:55:58,920
Speaker 20: which is if the fourteenth Amendment used the phrase not

2099
01:55:59,160 --> 01:56:03,640
Speaker 20: subject to any foreign power to give them much tougher argument,

2100
01:56:03,800 --> 01:56:09,920
Speaker 20: And then earlier I think you indicated that they that's

2101
01:56:10,000 --> 01:56:12,960
Speaker 20: what they meant, even though they didn't say it. I

2102
01:56:13,120 --> 01:56:16,280
Speaker 20: just want to give you a chance to unpack that,

2103
01:56:16,360 --> 01:56:18,840
Speaker 20: because I think that's sure. If it's said that, I

2104
01:56:18,880 --> 01:56:20,600
Speaker 20: think our history would be a little different, and I

2105
01:56:20,680 --> 01:56:23,480
Speaker 20: think the text even put aside the history because that

2106
01:56:23,560 --> 01:56:25,760
Speaker 20: speculation the text would be quite a bit different.

2107
01:56:26,040 --> 01:56:29,440
Speaker 21: Sure, So let me answer in three parts. The first

2108
01:56:29,560 --> 01:56:33,640
Speaker 21: is that Wanki Mark tells us that the court already

2109
01:56:33,680 --> 01:56:35,960
Speaker 21: dealt with this and said, look, the Framers were trying

2110
01:56:36,000 --> 01:56:38,280
Speaker 21: to do the same thing with the language of the

2111
01:56:38,320 --> 01:56:41,280
Speaker 21: eighteen sixty six Act to the extent you think that

2112
01:56:41,400 --> 01:56:45,280
Speaker 21: the language is ambiguous or not as good, Let's look

2113
01:56:45,280 --> 01:56:48,440
Speaker 21: at the operative text, subject to the jurisdiction thereof. The

2114
01:56:48,560 --> 01:56:50,640
Speaker 21: second point I would make is that it's clear from

2115
01:56:50,680 --> 01:56:53,760
Speaker 21: the debates that the Framers, in using the phrase not

2116
01:56:53,840 --> 01:56:57,440
Speaker 21: subject to any foreign power, we're thinking about ambassadors. And

2117
01:56:57,760 --> 01:57:01,040
Speaker 21: I believe that Senator Wighed at one point says, well,

2118
01:57:01,120 --> 01:57:03,920
Speaker 21: I wanted to start with a phrase all persons born

2119
01:57:03,960 --> 01:57:06,800
Speaker 21: in the United States are US citizens, but then I thought,

2120
01:57:06,920 --> 01:57:09,440
Speaker 21: oh wait, we have these temporary visitors. In fact, the

2121
01:57:09,480 --> 01:57:11,720
Speaker 21: government points to this quote. So so there are these

2122
01:57:11,760 --> 01:57:14,600
Speaker 21: temporary visitors. We can't make citizens. They're children. We can't

2123
01:57:14,600 --> 01:57:17,880
Speaker 21: make their children's citizens. That's ambassadors. And that's very clear

2124
01:57:17,920 --> 01:57:18,120
Speaker 21: from you.

2125
01:57:18,200 --> 01:57:20,320
Speaker 20: So if that had been the text, your argument would

2126
01:57:20,360 --> 01:57:24,200
Speaker 20: be that was understood to be narrower than its text

2127
01:57:24,240 --> 01:57:24,760
Speaker 20: would read.

2128
01:57:25,040 --> 01:57:26,440
Speaker 5: Yes, but that's not the text.

2129
01:57:26,560 --> 01:57:28,640
Speaker 21: So I guess we don't need to deal with that, sure,

2130
01:57:28,760 --> 01:57:30,720
Speaker 21: And that brings me back to my third point, which

2131
01:57:30,800 --> 01:57:34,360
Speaker 21: is you can't read not subject to any foreign power

2132
01:57:34,440 --> 01:57:37,200
Speaker 21: the way the government urges you to without making the

2133
01:57:37,320 --> 01:57:41,920
Speaker 21: children of all foreign nationals non citizens. And that's clearly

2134
01:57:42,040 --> 01:57:43,160
Speaker 21: not what the Framers were doing.

2135
01:57:44,480 --> 01:57:47,800
Speaker 20: Justice Alito and Justice Kagan raised an interpretive question that

2136
01:57:47,920 --> 01:57:50,840
Speaker 20: I think is important, which is are the exceptions you've

2137
01:57:50,920 --> 01:57:52,600
Speaker 20: used the word closed many times?

2138
01:57:53,360 --> 01:57:54,440
Speaker 5: Okay, this is the war room.

2139
01:57:54,480 --> 01:57:55,640
Speaker 7: We're back at five o'clock.

2140
01:57:56,640 --> 01:57:58,760
Speaker 6: We're going to be back at nine o'clock tonight to

2141
01:57:58,840 --> 01:57:59,920
Speaker 6: cover for a cover.

2142
01:58:00,040 --> 01:58:00,160
Speaker 12: Rich