The Trump administration appealed to the Supreme Court (filing), both on the merits and on further restriction of national injunctions yesterday (9/26). So they are, after all, serious about the issue on the merits. That prompted me to look deeper, to go back to the original sources. My impression from contemporary news was that the merits were clear-cut against the administration. But after digging in, the result is more interesting than I expected. (Previous installment on this topic: Birthright Citizenship.)

The Holding

Constitutional law 101: every case has a holding and dicta.

  • Holding = the legal rule that is binding precedent, necessary to resolve the dispute, and applied to the material facts of the case.
  • Dicta = commentary and reasoning by the judges. Dicta may be persuasive, but it is not binding.

And where do you find the holding in a ruling? It’s not always easy, as it is almost never explicitly stated that “the holding is…”.

In United States v. Wong Kim Ark, the court held:

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil (“sic”) and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.

The key phrase is “permanent domicil (“sic”) and residence in the United States”. At the time, the Chinese Exclusion Act barred Chinese from naturalization but did allow permanent residence. Since Congress has express constitutional authority over naturalization, the Act was upheld as constitutional, however repugnant.

Read narrowly, the holding is:

  1. Children born in the U.S.
  2. To parents who have permanent domicile (roughly equivalent to legal permanent residence at the time)
  3. Who are not diplomats
  4. Are U.S. citizens

That means the holding does not cover the children of temporary visitors or of immigrants residing unlawfully. Then where do all the broader interpretations come from?

Dicta or Broader Holding?

The majority’s reasoning leaned heavily on the broader common law principle of jus soli: that almost everyone born on sovereign soil is a subject of that sovereign, except children of diplomats or invading armies. That’s much more expansive than the narrow reading of the holding. Courts and commentators since then have largely treated this broader reasoning as the holding of Wong Kim Ark. This broader reading also aligns with what the nation needed at the time: a new nation spanning sea to shining sea, needed a large population to develop the land, thus needing immigrants!

The Unique Case of Wong Kim Ark

If we take the narrow reading of the holding, that children of legal permanent residents are citizens, and the dicta as broad, that nearly everyone born in the U.S. is a citizen, where does that lead us? Here’s the twist: for 127 years, all branches of government have since followed the dicta, not the holding, for the benefit of a nation seeking immigration. I haven’t found another Supreme Court case with such a long-lasting divergence! That reading was also self-serving for a nation eager to attract immigrants.

Usually, when courts or the executive branch overextend precedent, later courts correct it. But in this situation, it seems also the case no one had standing to sue. Why? Because it was a broader benefit. Who is concretely harmed when more people are recognized as citizens? Almost nobody can show the “concrete and particularized injury” required to litigate, even if they want to. That’s why the broader dicta prevailed in practice.

What’s Standing?

Standing determines who can bring a case. It prevents courts from issuing advisory opinions, keeps them focused on live controversies, and lessen the caseload on the court system. The Constitution’s “cases and controversies” clause is the basis for the justiciability doctrines, including standing.

In the context of birthright citizenship, nobody could show harm. Until now, because the government itself is trying to restrict it, creating many live controversies, and they got sued left and right.

Reliance Interest

Another key principle is reliance interest: people order their lives around settled laws, and courts are reluctant to disturb those settled expectations. Even wrongly decided precedents may be left standing if society has deeply relied on them.

Example:

  • Roe v. Wade was overturned partly because reliance interests were weaker; people can, at least going forward, plan around reproductive choices differently.
  • In contrast, Obergefell (same-sex marriage) created reliance interests in property, inheritance, adoption, and more, thus going to be much harder to unwind.

Birthright citizenship is also deeply entrenched, after all, it is the practice of 127 years. But reliance interests here may also be weaker than in Obergefell, since birthright citizenship shapes the rights of future people not yet born (i.e. they do not exist yet), rather than changing existing relationships.

The Common Law Tradition

The common law tradition is based on case laws and precedents, unlike civil law system that relies on detailed statutes and codes. For any system of law to work in the long run, it is fundamentally important that the governed treat the system as fair and legitimate. So from that aspect, the rule of law is always intertwined with legitimacy of the governmental institutions themselves. Lawyers and judges are the fabric of a system that keep it evolving and keep its legitimacy. Common law countries have been more stable (i.e. less revolutions), for big part, due to its built-in ability to evolve with society changes. After all, in the many hundreds of years of common law tradition in England and America, the society had changed drastically, and the law had evolved successfully with time.

Under this backdrop, if we treat the cases before the court, merely as a long series of continued institutional building exercise, then we would favor generally narrower rulings, narrower reading of holdings, because at one extreme, the holding applies only to the very specifics in a case. Later rulings can expand the holding incrementally, without needing to overturn prior precedents. Stare decisis lends stability and legitimacy to the whole system. Reading too broad, while may always later be trimmed with the argument the holding is dicta, tend to undermine the legitimacy of the whole system, particularly from the side who didn’t agree. Dicta, in this sense, are the second-tier contour, showing the direction of future evolution, providing guiding signals to the society, but nonetheless not binding.

Prediction of the Outcome of Birthright Citizenship Case

This may be the blockbuster case of the century. My best guess, given the Court’s current philosophy:

  1. Trump’s Executive Order struck down: The Court rules it exceeds executive authority under the “major questions” doctrine. Reliance interests strengthen this conclusion. (Conservatives and liberals both have reasons to agree here.)

  2. Holding of Wong Kim Ark reaffirmed: The Court may reaffirm Wong Kim Ark’s narrow holding, that children of legal permanent residents are citizens, not because it must, but to reinforce stare decisis and institutional legitimacy.

  3. Signal to Congress: The Court may hint that Congress, not the President, may attempt to regulate birthright citizenship for non-permanent residents. Depending on tone, even liberal justices may join for unanimity optics. I’m quite sure such would appear in some form in dicta.

  4. No change on national injunctions: Since the executive order itself is struck down, the lower courts’ nationwide injunctions appear justified. The Court likely avoids narrowing that tool here.

Reasoning:

  1. Court likes to rule narrow, kicking can to political branches and down the road, let it develop further in the political arena. This is the conservative legal doctrine of judicial minimalism.

  2. How Wong Kim Ark was interpreted feels pretty sloppy (not following holding but dicta), so the conservative Court may want to clean it up.

As to how the court would rule, if it is congress not the executive that tries to restrict birthright citizenship, I’ll entertain that when the actual controversy arises. I doubt anything regarding birthright citizenship can pass congress in the current polarized environment. This case, whatever the outcome, could become the new Roe v. Wade, a perennial culture war topic.