At Bench Memos, Ed Whelan asks: Will Birthright-Citizenship Case Be Decided on Statutory Grounds? (specifically, 8 U.S.C. § 1401(a), which repeats the language of the citizenship clause). As he summarizes the government’s position:
The meaning of section 1401(a) depends on what the Citizenship Clause actually means, not what Congress thought it meant in 1940 or 1952. By transplanting the phrase “subject to the jurisdiction thereof” from the Citizenship Clause to section 1401(a), Congress incorporated the meaning that phrase carries in the Constitution. …
The statute’s verbatim inclusion of the constitutional standard naturally incorporates the Clause’s objective meaning. If a statute had been enacted in the early 20th century guaranteeing “equal protection of the laws,” a court today would read it as forbidding segregation—even though Plessy v. Ferguson would have led the Congress that enacted it to assume, incorrectly, that separate can be equal.
He also summarizes the challengers’ arguments, and adds:
This SCOTUSblog post by Akhil Amar, Vikram Amar, and Jason Mazzone presents additional argument and evidence in support of the challengers’ argument that that the case can be decided on the basis of section 1401(a).
As the Chief has put it, “If it is not necessary to decide more, it is necessary not to decide more.” My guess is that the Chief will be part of a supermajority of the Court that rules that the [executive order] violates section 1401(a) and that declines to address the constitutional question.
I’m not sure what I think is the correct originalist view, but I agree it’s a plausible prediction.
RELATED: Also on the statutory question, see this amicus brief by Kristin Collins, Gerald Neuman, and Rachel
Rosenbloom in support of the challengers. They say:
The phrase “subject to the jurisdiction thereof,” used in the 1940 and 1952 Acts, is a legal term of art. Under well-established principles of statutory interpretation, the phrase must be given a particular meaning—specifically, its meaning at the time Congress enacted it. See, e.g., Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 275 (1994). Therefore “[t]he real question is …what was the prevailing understanding of this term of art under the law that Congress looked to when codifying it.” George v. McDonough, 596 U.S. 740, 752 (2022).
I agree that’s the right originalist question, but is the answer “what people at the time of the statute’s enactment thought that phrase in the Constitution meant” or “what it actually meant”?
Posted at 6:05 AM