Born in the USA: A Debate on the Meaning of the Constitution’s Citizenship Clauses

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society’s live webinar event, co-hosted by our student Federalist Society chapters. My name is Micah Wallen, and I am the Associate Director of Practice Groups here at The Federalist Society.

 

      Today, we are fortunate to have with us Nick Jaber and Stephen Sands, and I will leave it to Nick and Stephen to introduce our panelists today and the program, and then we will be good to start off. So Nick and Stephen, take it away.

 

Nicholas Jaber:  Thank you so much, Micah. My name is Nicholas Jaber, and I have the pleasure of serving as the President of the Chapman University Federalist Society chapter. It’s my immense pleasure to kick off this event and introduce two of our distinguished participants. First, we have the Honorable Andrew J. Guilford, and second, we have Dr. John C. Eastman.

 

      Judge Guilford will serve as our moderator this afternoon. Judge Guilford recently retired from the bench after serving as a federal judge for the United States District Court for the Central District of California. Judge Guilford joined the court in 2006 after being nominated by President George W. Bush.

 

      Dr. Eastman is currently the Henry Salvatori Professor of Law and Community Service and the Director of the Center of Constitutional Jurisprudence, as well as a former Dean at the Chapman University Fowler School of Law. Dr. Eastman’s reputation certainly precedes him. He’s been writing and speaking on the issues that are the subject of today’s debate for nearly 20 years, starting in 2003 with a brief he filed along with the former Attorney General Edwin Meese in the Hamdi v. Rumsfeld case involving a Taliban unlawful combatant. And Dr. Eastman has testified on the issue several times in Congress and in various state legislatures.

 

      So again, thank you all for being here. I will now invite the UCLA chapter president, Stephen Sands, to introduce Professor Volokh.

 

Stephen Sands:  Thank you, Nick. And good afternoon, everyone. I’m Stephen Sands, and I’m the President of the UCLA Federalist Society. Before I introduce Professor Volokh, I’d like to quickly thank the board of the Chapman Federalist Society, including Nick and Betsy for all of their help on this event. And I’d also like to thank my board, Richard, Hailey, and Eli, for all the work they put towards making this event possible.

 

      Now, it’s my pleasure to introduce to you a man who, to many of you, likely needs no introduction, Professor Eugene Volokh. Professor Volokh graduated from UCLA with a BS in math and computer science at age 15, then returned to UCLA several years later to get his JD. After law school, Professor Volokh clerked for Judge Alex Kozinski of the Ninth Circuit and then for Justice Sandra Day O’Connor on the Supreme Court. Professor Volokh then returned to UCLA for a third time, this time as professor, and he has remained at UCLA ever since. Professor Volokh is the Gary T. Schwartz Professor of Law at UCLA and is also the founder of The Volokh Conspiracy blog on Reason.com.

 

      I’ll now turn things over to Judge Guilford to introduce the debate topic.

 

Hon. Andrew Guilford:  Thank you very much. This is a very interesting and important topic. It has been for many years. May I say that as a district judge, it came through my courtroom a few times. I was involved with a few birth tourism cases, criminal proceedings generally against the masterminds of the programs. That raised issues for me. Is that the way these systems should operate?

 

      I think most intriguing and difficult for me was a case in another arena where an undocumented pregnant woman was before me for criminal sentencing. And she asked that I give a longer sentence than I was known to do so that she might have her baby in a United States jail. That was quite a dilemma for me to figure out. I made my decision, and I still wonder if it was the correct decision.

 

      Those are some of the issues that arise. And we are about to hear from two of the leading scholars in the country on this issue, again, an issue that been around for so many years, “Born in the USA: A Debate on the Meaning of the Constitution’s Citizenship Clauses.” And let us begin with Dr. Eastman. I note that Stephen is sitting there in the Supreme Court, so maybe we should have red and green lights. But I think that’s probably not the case, so it’ll simply be up to me if you go too long, John. Take it away.

 

Prof. John Eastman:  Well, there’s a lot to pack into here. I’ll see what I can do. There are several citizenship clauses in the Constitution. Both members of the House of Representatives and of the U.S. Senate have to be citizens for a certain period of time, and of course, the President has to be a natural-born citizen, unless he was one of the first presidents who got a grandfather clause that as long as they were a citizen at the time of the adoption of the Constitution, they would qualify. That clause has been inoperative since Andrew Jackson.

 

      But what does natural-born citizen mean? The phrase first appeared in the draft Constitution shortly after George Washington received a letter from John Jay, the future first Chief Justice of the United States, suggesting, quote, “whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government, and to declare expressly that the Commander in Chief of the American army shall not be given to, nor devolve on, any but a natural born citizen.” That was in July of 1787, and it worked its way into the Constitution late in August, late in the day in the Constitutional Convention.

 

      Now, previously, about a month before that letter, Alexander Hamilton had included a similar idea, though without the precise language, in his general sketch of a plan for the United States. He said, “No person shall be eligible to the office of President unless he be now a citizen, or hereafter be born a citizen of the United States.” So it’s the same idea there reflected. That’s about all we have from the debates in the Convention and in the ratifying debates as well. This was not a topic of concern or dispute.

 

      So what was Jay and perhaps Hamilton relying on when they offered that language? I think there are two sources, not just one. Professor Volokh in his Newsweek rebuttal to my Newsweek article says it obviously comes from the English common law, but there were two sources. There was the English common law of jus soli, all persons born in the King’s dominions, that is, on the King’s soil, were natural born subjects of the King, entitled to his protection and owing him a permanent allegiance.

 

      The other source was Emer de Vattel in his book The Law of Nations that had been published a few years before the Declaration of Independence. And how do we know that this was perhaps a source? Well, Charles Dumas sent three copies of the book from Europe to Ben Franklin in 1775. Franklin kept one copy. He deposited a second in the public library in Philadelphia, quote, “where the Continental Congress,” of which Jay was a member, “was meeting.” Franklin wrote in his note of thanks to Dumas that “it has been continually in the hands of the members of our Congress now sitting who are much pleased with the book.”

 

      And it’s in that book, as translated into English, that we get the phrase natural-born citizen rather than natural-born subject. And he says the natives or natural-born citizens are those born in the country of parents who are citizens, and that if he was born there of a stranger, it will only be the place of his birth and not his country. In other words, Vattel draws a distinction between the children of citizens and, we’ll later learn, perhaps the children of lawful permanent residents, and those who are temporary visitors or sojourners. And then when he was talking about whether it applied to children born abroad to citizens, he draws the same distinction between temporary visitors and those who had become permanent or perpetual inhabitants of their new adopted country.

 

      So which of these two sources is the more likely source of the meaning of the Article II requirement? Thomas Cronin in his chapter in the World Book Encyclopedia on the U.S., on the President of the United States, says, “No law or court decision has yet to find the exact meaning of natural born.” Christina Lohman, in a Gonzaga Law Review article in 2000 dealing with presidential eligibility then, acknowledges that there’s no evidence as to the meaning of the clause in the deliberations of the Constitutional Convention. But then she goes on to say that it’s presumed that it is derived from English common law without actually any support of why that presumption is valid.

 

      And why should that be the case? Well, let me take a stab at offering some reasons for the alternative. First, the Vattel phrase was routinely translated as natural-born citizen. That’s the phrase that is actually used in the Constitution, while the English phrase was natural-born subject. The former fits better with the idea of Republicanism that they were advancing. The latter is a throwback to feudalism, which they were rejecting.

 

      Second, Jay’s concern about the admission of foreigners into the administration of our national government; the only guide to the original intent behind the clause that we have, really, is simply not furthered by the English law of jus soli, at least not nearly as well.

 

      Imagine this hypothetical — we law professors like hypotheticals — which is actually a bit true in many of its particulars. Suppose Princess Charlotte, the third child of George III, and she would later become Queen of Württemberg in 1805, traveled to the United States during Jefferson’s presidency, whom she had met in Paris while Jefferson was there. Okay, that I made up. I don't know if whether she did, but she was certainly brought up learning French in the English court.

 

      But they actually fled to Vienna from Württemberg in 1800 to escape Napoleon’s army. But suppose instead they’d fled to America, and that she and her husband, who would soon become King Frederick of Württemberg, remained in the U.S. for the better part of a year, during which time she became pregnant and gave birth to a son. They go back to Germany, become king and queen. They end up dying by 1828.

 

      And suppose that this son ends up coming back to the United States. Fourteen years later, in 1842, and in part because of the weakness of President John Tyler, who, you will recall, became President after William Henry Harrison died shortly after he was elected into office, he decides to launch a bid for President of the United States, grandson of the English king that we revolted against and son of a German king. Would he have been eligible? Under the jus soli doctrine, the answer to that would be yes. Under Vattel’s doctrine, the answer would be no.

 

      And this is not a crazy thing. There’s some evidence that the reason Jay proposed what he did is that rumors were floating around that there was going to be some possibility of Baron von Steuben becoming President under the new regime. He, by the way, was the baron in the same Württemberg principality that Princess Charlotte would later become queen of.

 

      Or consider this other hypothetical. A Russian mother whose husband is a member of Russia’s ruling elite flies to Miami in the final months of her confinement to give birth on U.S. soil. As soon as her doctor clears her to travel, she and the baby return to Russia. There, the son follows his father’s footsteps and advances up the ladder of the Russian government. When he’s 40, he is sent to the United States, not as a diplomat, but to manage Russia’s stockholder interests in the Ukraine. That’s the country that Hillary Clinton approved a sale of a controlling interest to the Russians during her tenure as Secretary of State.

 

      After meeting the 14 year residency requirement, all the while aggressively advocating Russian interests, would he be eligible to the office of President and Commander in Chief of our armies? Under the jus soli rule, the answer would be yes. Under Vattel’s, the answer is no. After all, aren’t we supposed to be concerned about the Russian influence these days?

 

      So I think when you look at the paucity of evidence we have, but instead look to what the purpose of the clause was, it’s Vattel’s doctrine rather than the doctrine of jus soli that actually furthers that purpose.

 

      We don’t have a definition of citizenship in the Constitution until nearly 100 years later with the Fourteenth Amendment. And that definition says all persons born on the soil — that would be the jus soli part — and subject to the jurisdiction thereof. That, I think, adds a second component, and I’m going to contend -- I don’t have enough time to do it right here, but I’m going to contend that that means more than not just being the children of diplomats who are exempt from our laws, our territorial jurisdiction, but it meant something broader.

 

      As the authors of the language told us during the debates over the Fourteenth Amendment, it meant subject to our complete jurisdiction, owing allegiance. That lines up with Vattel’s definition. It certainly doesn’t line up with the jus soli doctrine.

 

      And finally, there’s this. The jus soli doctrine not only required birth on the soil to be a king’s subject, but it mandated an unrenounceable, permanent allegiance to the king. We rejected that in the declaration of independence in explicit terms. That last paragraph of the Declaration says we hereby renounce all allegiance to the Crown. That was one of the most eloquent rejections of the doctrine of jus soli ever penned in human history. It’s hard to imagine that the same group or the same generation that adopted that rejection of jus soli simply assumed it when they adopted the Natural-Born Citizen Clause in the eligibility for President requirement.

 

      I think there’ll be a lot more that we can get into in question and answer, but that’s the basic case there that I wanted to make.

 

Hon. Andrew Guilford:  Thank you, Professor. And we turn to Professor Volokh.

 

Prof. Eugene Volokh:  Thank you. Thank you very much. This is a very interesting and important subject. I should say as a policy matter, I’m not a fan of birthright citizenship. I would support something if we were writing it from scratch, some kind of provision that excludes children of illegal aliens and excludes children of many legal aliens, like somebody who happens to be visiting here; perfectly plausible.

 

      But we have the text we have, and we have the legal history that we have. And the question is, what does that mean? So the Fourteenth Amendment specifically says all persons born or naturalized in the United States are citizens of the United States and of the state wherein they reside if they’re subject to the jurisdiction of the United States. So somebody’s born in the U.S., they’re born in the U.S., all persons.

 

      What does it mean to be subject to the jurisdiction? Well, that was a phrase that was not uncommonly used in the early American law. Here’s the Naturalization Act of 1790. “Any alien who shall have resided within the limits and under the jurisdiction of the U.S. for the term of two years may be admitted to become a citizen.” So aliens could be under the jurisdiction. And of course, that makes sense because when we think of jurisdiction, we just think of the power of the government to order us around.

 

      Well, I used to be an alien. I’m not a natural-born citizen. Just to be clear, I was born in what was then the Soviet Union. I have no ambitions for the presidency, and if I did, then I should be blocked from the presidency because of the text of the Natural-Born Citizen Clause. But we were aliens in the U.S. from 1975 until we got citizenship in ’84. Of course, we were subject to the jurisdiction of the U.S. And if my mother, for example, at the time, had another child, of course, the child would have been born within the jurisdiction of the U.S. One test is if we had committed any crimes, boy, we would have been rightly punished for it because we were under American jurisdiction.

 

      Here’s Chief Justice Marshall from a case called the Exchange. It isn’t talking about these particular provisions but uses the phrase jurisdiction and makes clear that merchants who are visiting and private individuals of a nation who are spending time in another nation are amenable to the jurisdiction of the country. That’s a normal use of jurisdiction. If you’re within a country and you are subject to the law of that country, you are under its jurisdiction.

 

      U.S. v. Wong Kim Ark, a case I think that Professor Eastman may disagree with or may think should be limited in certain ways, but it is the leading precedent on the subject, says that the Constitution needs to be interpreted in light of the English common law. And under the English common law, children born in England of such aliens in amity, which is to say aliens with whom sanctioned friendly relations as opposed to enemy aliens, were natural-born subjects.

 

      Some people were excluded because they weren’t within American jurisdiction, children of alien enemies born during an occupation. So if a part of American soil is occupied by a foreign country, that’s not within the U.S. jurisdiction as a practical matter. And for that matter, foreign ambassadors, children of foreign ambassadors, children of a foreign sovereign, perhaps even extended to the foreign sovereign’s immediate children as well, to look at Professor Easton’s hypothetical.

 

      By the common law of England, every person born within the dominions of the Crown, no matter of English or of foreign parents, and in the latter case, whether the parents were settled or merely temporarily sojourning, so temporarily visiting in the country, was an English subject. Natural-born subject means a British subject who has become a British subject at the moment of his birth.

 

      Let me skip some of the quotes and we’ll get back to them later. This, of course, was also Blackstone’s use in the Commentaries. And I agree Vattel was read by the Framers. Blackstone was much more read by the Framers. Natural-born subjects are those who are born within the dominions of the Crown of England, the allegiance of the king, and that includes all men born within the king’s dominions. Immediately upon their birth, they are subjects. Children of aliens born in England are, generally speaking, natural-born subjects, unlike the rule in Europe.

 

      Nor was natural-born subjects somehow condemned as an English-ism that was to be rejected by American law. It’s true, eventually we shifted to language of citizen rather than subject. But look at the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777. It talks about how foreigners who come here are entitled to all the rights of a natural-born subject. They seem to be fine talking about subject, essentially interchangeably with the more republican term citizen.

 

      Kent’s Commentaries, of course, a very influential treatise in the, I want to say, 1840s by Chancellor Kent talked about how subject and citizen are convertible terms as a practical matter, and I think early law reflects that. It’s true that Vattel, the 1797 translation talked about natives or natural-born citizens being born of parents who are citizens, but he was a European talking about European civil law, not English common law.

 

      Generally speaking, when a question, I think, in American law is, do we follow the traditions of the English common law or the European civil law, the better bet is it’s the English common law. And that’s not just my view. That’s the Supreme Court’s view in Wong Kim Ark as well. But I think that’s a very sensible view.

 

      What’s more, Vattel was writing, of course, in French, and he didn’t use even the French version of the phrase natural-born citizens. He used the word indigene, indigenes. So the translations available in 1787 used the phrase natives or indigenes. So it’s not even that the people in Philadelphia, if they’d read Vattel — and again, the record suggests that the framing generation read Vattel some but not nearly as much as Blackstone — would have read Vattel in either English or French, they would not have seen the phrase natural-born citizens or its analogue. Maybe the 1979 translator, who as best I can tell is anonymous, maybe he was right in interpreting indigenes as the word for natural-born citizens, but we have no real evidence of that.

 

      So Rawle, another early commentator on the U.S. Constitution, William Rawle, he was a U.S. attorney early in the Republic, talked about every person born within the U.S., whether their parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution. There was some uncertainty about that, to be sure.

 

      In 1875 in the Minor v. Happersett decision, the Supreme Court noted that there was a dispute. It was always understood that children born to U.S. citizens were natural-born citizens, but some said that also citizens born outside -- I’m sorry, born within the jurisdiction without reference to citizenship, that they, too, were citizens. But that’s not something that they needed to decide. Of course, in 1898, Wong Kim Ark decision, the Supreme Court did decide that, and I think it decided it correctly.

 

      Let me close with a couple of points. One is, returning to Wong Kim Ark, there is a phrase -- the issue there, of course, was whether children of Chinese immigrants were to be treated as citizens from birth. And the Court says, “Look, you can debate whether or not we should decline to admit persons of the Chinese race to the state of citizenship as a policy matter.” I think that, of course, we should. Most people today think so. But at the time, there was a debate. And this is something that a sovereign nation should be able to decide. But whatever policy reasons there might be, we need to look at the preemptory and explicit language of the Fourteenth Amendment.

 

      So again, I’m not a fan of birthright citizenship. I’m also not a fan of the Natural-Born Citizen Clause for other reasons, but that’s not the question before us. The question is what the text means, of course, in light of the traditional understanding of those terms.

 

      Let me close with one last thing. So Professor Eastman gives these hypotheticals. What about this Russian who’s born in Miami, goes back there, has aged 40 years, comes to American, spends 14 years here, and then runs for President? I think the answer is he’s not going to get elected.

 

      It’s a pretty fair bet he won’t get elected because how do you get elected President of the U.S.? Generally speaking, you build a reputation in the U.S. as an American, as somebody connected to the nation. Sometimes, you work your way up through the political ladder. Sometimes, you work your way up through military. Sometimes, as with President Trump, you spend decades in the U.S. getting a lot of fame and notoriety as a businessman and as a reality show producer and host. That’s the way you get elected. And ultimately, it’s up to the voters to decide whom to vote for.

 

      So I’m not terribly worried that under my reading of the Natural-Born Citizen Clause some people who probably shouldn’t be President could get elected. Well, always, some people who shouldn’t be President could get elected if they persuade enough voters.

 

      And as to most people who do not really have much connection with the nation, who’ve only been here for 14 years, let’s say, who were not just born here but then spent most of their time overseas with these foreign allegiances, I think relying on the good sense of the American voters is probably a better bet than relying on a narrow interpretation of the Natural-Born Citizen Clause, one that had been rejected throughout much of American history and has been pretty conclusively rejected by the U.S. Supreme Court.

 

Hon. Andrew Guilford:  The stage is yours, Professor Eastman.

 

Prof. John Eastman:  Okay, so a couple of things. One, I do want to take up Wong Kim Ark because the issue there was -- and the Court, 28 times in the opinion, including in the questions presented, acknowledges that the Chinese parents had become lawfully and permanently domiciled in the United States. They weren’t citizens. They weren’t allowed to become citizens. But they had become permanent domiciliaries. They were no longer temporary visitors or sojourners. And I think that necessarily has to confine the scope of the holding of the case.

 

      I agree with Eugene that the dicta in the case is much broader, but we all know the problem with dicta. It’s not the issue presented, and therefore, they can make some pretty bad mistakes because it’s not briefed. Let me just give you one. Justice Gray, who writes the majority opinion in Wong Kim Ark, relies on Justice Joseph Story, who most think is one of the early dispositive interpreters of the Constitution in his Commentaries on the Constitution. Gray relies on him, saying that persons who are born in a country are generally deemed citizens and subjects of that country.

 

      But Gray omits the very next sentence in Justice Story’s treatise, which is a reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere, that is, traveling in the country, or who were abiding there for temporary purposes as for health or curiosity or occasional business. Joseph Story acknowledged that it would be difficult to assert that in the present state of the public law internationally, such a qualification is universally established. Great Britain still had the rule of jus soli in place. Justice Gray’s omission of that qualification seems to imply that the opposite is universally established. And it clearly was not the case. In his Conflict of Laws, he goes further and draws the distinction between those who were permanent residents and those who were temporary sojourners.

 

      Now, what about the language of the Fourteenth Amendment itself and the subject to the jurisdiction phrase? Eugene has pointed out the common meaning that we all attribute to that phrase, but for them, there were two different and distinct meanings. There was what they called partial or territorial jurisdiction. That’s the phrase that’s synonymous with subject to the jurisdiction of our laws. Anybody who is visiting here, save for foreign diplomats that have sovereign immunity, anyone who is visiting here subjects themselves to our laws while they are within our borders.

 

      But there was another meaning, a complete meaning, a complete allegiance owing jurisdiction. And when in the context of what was going to become of Native Americans under the Fourteenth Amendment citizenship clause, Senator Howard, the author of the language, was asked point blank. They’re clearly subject to our civil and military jurisdiction, i.e., subject to our laws. Will they become citizens? And he says no because they are not subject to our complete jurisdiction. They owe us no allegiance. They owe allegiance, in fact, to a different sovereign, their native tribe, which was a domestic sovereign rather than a foreign sovereign.

 

      But if anything, the case for Native American citizenship should be stronger rather than weaker than a foreign visitor coming here. The Supreme Court of the United States, the first time it looked at the clause said exactly the same thing. The clause was designed to prevent the children of diplomats and counsels and ambassadors — on that, we all agree — but also the children of citizens of a foreign state while temporarily visiting in the United States.

 

      That’s the Supreme Court’s statement, dicta, in Slaughter-House Cases, but that statement of dicta becomes a holding a decade later. It was also the same position taken by the leading constitutional treatise writer on the Fourteenth Amendment, Thomas Cooley, who said that same thing. What was meant was a complete jurisdiction, not a temporary or partial jurisdiction.

 

      And by the way, looking at the slides that Eugene was showing, if you look actually more carefully at the slide from Chancellor Kent, he acknowledges the same thing. He’s got in there in his definition the word allegiance, and that’s the critical thing that distinguishes this complete jurisdiction from the temporary or partial jurisdiction that is comparable or synonymous with subject to the rule of law or subject to the laws here.

 

      So which did they mean? The Supreme Court had it right in Happersett. There was -- views were all over the map on this. There are a couple of early state court decisions, one out of New York called Lynch v. Clark in the 1830s that applies the English common law doctrine of jus soli in an inheritance fight in New York. But interestingly, there was a provision in the New York State Constitution that mandated that application of English common law unless and until changed by the legislature. So that court didn’t have any ability to do anything other than apply the English common law.

 

      Another case that existed before that New York Constitution was the case of John English. And the issue there was whether a child born in New York during the Revolutionary War was a citizen. And there was a factual dispute on whether he had been born before the 4th of July, in which case he was clearly a British subject, or whether he was born in Manhattan after September 1776 when the British occupied it, in which case he would be under the foreign army exception to the doctrine, or had he been born in the several months period in between when it was U.S. soil?

 

      And interestingly, the Court does not settle it on that factual question by saying if he was born in that period, he is necessarily a citizen. It says instead, if he was born in that period, we would have to know something about the allegiance that the father retained because if he retained his allegiance to England as a British loyalist, then the son’s allegiance and citizenship follows that of the father. That’s a rejection of jus soli in a case that is often touted for adopting the principle of jus soli right at the beginning.

 

      So I think all of these things combine. And also the fundamental rejection of jus soli, at least the back half of it, the perpetual allegiance piece that we accomplish in the Declaration of Independence and then fight a second war over that issue, the War of 1812, we rejected at least portions of jus soli.

 

      It’s hard to see why we would keep -- and this is a throwback to feudalism, that the king owns the dominions, and therefore, you owe a permanent allegiance to the king. We rejected that. We adopted not jus soli and not even jus sanguinis, the continental rule that the citizenship necessarily follows that of the parents. We adopted a version of consent, bilateral consent. The regime offers a citizenship to people that want to join the regime, and the people decide whether to accept it or not.

 

      The adoption of jus soli, particularly in the modern context of illegal immigrants, allows people to lay claim to the United States citizenship without that bilateral consent. I think it’s fundamentally at odds with the consent principle of the Declaration, and I think the evidence is strong and persuasive that the Fourteenth Amendment certainly rejected that doctrine.

 

Hon. Andrew Guilford:  Thank you, John. Eugene, any response?

 

Prof. Eugene Volokh:  I don’t want to talk at length. I think the evidence that we’ve discussed points pretty strongly in the direction that born in the U.S. is born in the U.S., and subject to the jurisdiction means the kind of jurisdiction that all of us are subject to when we are here, unless, for example, we’re a diplomat and have diplomatic immunity, or unless we are subject to a foreign occupation, in which case, practically, the government cannot jurisdict, speak the law.

 

      But if I could just identify a couple of big picture things, first of all, to the extent you care about precedent, it’s quite true that Wong Kim Ark involved permanent resident -- or excuse me, child of permanent residents. And I didn’t mention it because that was the fact of the case. It’s also true, as I think Professor Eastman acknowledges, that the logic of that case was a lot broader than that. It actually specifically quoted the passage that I quoted, specifically quoted an English treatise by English law that says that it applies even to children -- that natural born includes children of people who are just temporary visitors.

 

      And certainly, to the extent you focus much on the subject of the jurisdiction and suggest, well, if you are a foreign citizen, you’re not subject to the jurisdiction, it’s hard to say why you’re subject to jurisdiction if you’re a permanent resident but not if you are a temporary resident. So it seems to me that if you come to America, you’re subject to America’s jurisdiction, including if you’re an illegal alien. You’re subject to being deported or being prosecuted if you enter illegally, perfectly proper. And if you say, “Wait, I’m not subject to your jurisdiction,” the answer is, “Sure, you are.” The flip side is you’re subject to the jurisdiction for Fourteenth Amendment purposes as well. So that’s one point about Wong Kim Ark.

 

      The second point is, again, just returning to who -- understanding who we are. That’s not really who I am. I’m a Russian by birth, by native language. I’m American now, but I’m not an Englishman, certainly. But the Framers were Englishmen. The American Constitution was created in the shadow of the English common law.

 

      In a sense, you might think of the American Revolution as a second English civil war. These were people who thought of themselves as Englishmen on both sides, who shared a common culture, shared a common legal culture, obviously, tried to erect a regime that’s very different in many respects, a republic, not a monarchy, but when they used terms, they were much more likely to borrow those terms from English law than from continental law.

 

      They were much more likely to borrow natural-born citizen from the English phrase in Blackstone, who, again, was just extraordinarily influential on the Framers, as everyone would agree, even though he was an English jurist. When he talked about natural-born subject, much more likely to borrow it from him than from Emer Vattel who was writing in French and who used the French term indigene.

 

      So I’m with Blackstone. I’m with the logic of Wong Kim Ark. I think this is the dominant view in American law, and I think it’s correctly done.

 

Hon. Andrew Guilford:  All right. Thank you, Professor. I think we now come to questions and answers. I have a few questions, but I’d also like to hear from our audience. And I guess reflecting the interest in this subject, we reached up to 210 participants. I think the best way to take questions from the audience is to simply have them hit the Q&A button and write in questions, unless someone has a correction on that?

 

Micah Wallen:  Absolutely. We’ll now turn to questions. If anybody would like to ask a question and they joined by computer, all you have to do is press the “raise hand” function and it’ll automatically line you up in a queue. We’ll go through each of you one at a time. And also, if you joined by phone, all you have to do is press *9, and then that will also line you up in that queue. As soon as I unmute you, you’ll hear a prompt, and then you may proceed with your question.

 

Hon. Andrew Guilford:  Okay. Let me begin reflecting one that I see here in the Q&A section about Ted Cruz. And the question is, would he qualify under the Natural-Born Citizenship Clause to be President? And I’d like to expand on that. Of course, it’s not only Ted Cruz. McCain had his qualifications questioned. And I might be the oldest person on this panel, and I remember Goldwater had his qualifications questioned because he was born in Arizona before it was a state. So this goes way back.

 

      I don't know if other people remember Goldwater, but maybe focusing on Cruz here, maybe McCain, maybe Goldwater. What did the people -- what do our panelists have to say about their eligibility for President or how the natural-born citizenship issue applies to them?

 

Prof. John Eastman:  Most of the scholarship that’s been done on the meaning of the Natural-Born Citizenship Clause is about this question, not the one that Eugene and I have been debating here this morning. And that turns on whether you had to be native born on the U.S. soil, or whether you would also qualify as a natural-born citizen if you were a citizen from the time of your birth by virtue of the fact that you were born to U.S. citizens even though born abroad. And then there was also some question of whether it had to be both parents instead of just one, or at least the father, rather than just passing citizenship by the mother.

 

      Ted Cruz’s circumstance was, of course, that he was born of a citizen mother in Canada and a non-citizen, neither Canadian nor U.S. but Cuban, father. And the question was resolved at the time, as it was with Senator McCain, although a slightly different version of this, that because he was a citizen at the time of his birth under the immigration statutes at the time, that he was not subsequently naturalized but was a citizen from birth. And that’s the meaning that’s been given to it. It, of course, begs the question, who’s a citizen, which Eugene and I have been debating.

 

      The same thing was true for Senator McCain who had been born in the Panama Canal Zone, and that raised two issues. Was that U.S. territory or to be deemed U.S. territory, in which case it would qualify like Goldwater in the Arizona territory, or was he, like Cruz, eligible as citizenship from birth because of immigration statute? The problem with that line of argument, the immigration statute that Cruz relied on doesn’t get adopted until a couple of years after McCain is born, so that can’t be the basis. But Congress quickly shoved that under the rug in a resolution that was offered by Barak Obama, who seemed very keen on avoiding any discussion about citizenship controversies during that presidential election.

 

Hon. Andrew Guilford:  Professor Volokh?

 

Prof. Eugene Volokh:  Yeah, I agree with Professor Eastman on this. But just to step back, Congress had from the early Republic declared that children of American parents, even born overseas, are citizens from birth. And of course, that’s a perfectly sensible thing for an aspiring commercial republic like the U.S. You don’t want to be in a position where Americans go overseas, live there, working for American businesses, and then their children, who they want to raise as Americans, lack American citizenship. You don’t want that to happen. So as a result, Congress, early on, said they’re citizens from birth.

 

      So if you interpret natural-born citizen as somebody who is a citizen from birth as opposed to naturalized, which is somebody who became a citizen afterwards, then you’d say so long as somebody was a citizen under U.S. law at the time of birth, whether the law is the Fourteenth Amendment as to people born there. Obviously, Ted Cruz is not a Fourteenth Amendment citizen, but he may be a citizen under that statute.

 

      And I think that’s a perfectly sensible interpretation of natural-born citizen to say that so long as you’re a citizen under either the Fourteenth Amendment or congressional act at the time of birth, you are therefore a natural-born citizen. So I think that’s the sensible view, and it doesn’t affect the question that we’re discussing.

 

Hon. Andrew Guilford:  All right. How might we get the next question?

 

Micah Wallen:  Absolutely. We’ll now go to our first caller in the queue.

 

Devin Watkins:  Hello. My name is Devin Watkins. I tend to agree somewhat more with Eugene in that English common law, I think, is more the foundation of the jurisdictional question here. My question has to do with English common law and specifically the exception for invading soldiers. Calvin’s Case, which laid out this exception, used the logic and reasoning that when people enter the country, they have a temporary allegiance to the Crown that they accept when they enter the country, and that the king accepts them into the country.

 

      That doesn’t seem to apply, to me, to people who enter the country illegally, without knowledge of the government, and in violation of the laws of the government. They don’t make that kind of acceptance of the laws in having the government accept them into the nation that a person entering the country legally would. So even under Eugene’s interpretation where it’s English common law that is priority, would people who enter the country illegally not be subject to the jurisdiction thereof?

 

Prof. Eugene Volokh:  First, the question asks illegally without knowledge of the government. My understanding is throughout much of early American history and much of British history, lots of people entered the country without knowledge of the government. People, I’m sure, crossed the Canadian and Mexican border, often without even knowing that they were crossing the border. And once they came into the U.S., they were subject to American law. And you say, “Oh, I thought I was still in Mexico.” “Sorry, you’re on this side of the border. You are subject to our jurisdiction.”

 

      So I think the lack of knowledge of the government I don't think matters; likewise, enter the country illegally. Recall, some illegal aliens enter the country illegally. Some enter it legally but then violate American law in overstaying their visa. So I’m not sure that should matter much, but just to stress that not all of this is about illegal entry. But you enter the country illegally, you are subject to possible punishment. You are subject to deportation. But you are subject to the jurisdiction of the country too. The country gets to say what happens to you if you do certain things.

 

      And the notion of  -- it’s true that you might no have allegiance in the sense of love for the country, but in the legal sense, you were somebody who was subject to the jurisdiction. And again, under Blackstone’s rule, if you are the child of French parents who are loyal subjects of the French king, you still were subject to the allegiance to the king of England because you were under his protection and you were subject to his laws.

 

      So I think the same thing applies here. There are these traditional exceptions for invading soldiers who it’s not just they entered the country without knowledge of the government and entered it illegally, they entered it and they carry with them the power of a foreign nation to the point where if they have occupied a part of the territory, America’s writ or England’s writ does not run there anymore.

 

      There are children of foreign diplomats who really are outside of the jurisdiction in that they have diplomatic immunity, and then eventually in the U.S. was added the notion of American Indians, who were seen as not just citizens of a foreign country, but who were seen as having an independent sovereignty with at least quasi-sovereignty within the United States. Those are long talked about as the very limited exceptions to this principle, and I don’t see any exception that turns on whether you entered the country legally or otherwise.

 

Prof. John Eastman:  And here, I’ll agree with Eugene, but I’m going to draw a distinction. Anybody that comes within the borders, save for an invading army and a diplomat with sovereign immunity, is subject to our laws. And I would say that meant subject to our territorial jurisdiction. And we see that distinction in the language of the Fourteenth Amendment itself. The Citizenship Clause talks about being subject to the jurisdiction. The Equal Protection Clause says anyone within the jurisdiction, which is much more explicitly a territorial or a geographic phrase rather than the ambiguity in the Citizenship Clause.

 

      So the question remains. Did they mean merely territorial jurisdiction, which would have only those two exceptions, and somehow, although it’s hard to fit logically into this, the Native Americans as well because Native Americans were subject to our territorial jurisdiction. If they committed a crime off the reservation, they were prosecuted for that crime. They weren’t exempt from it like a diplomat or like an invading army. And yet, they were nevertheless explicitly not covered by the Citizenship Clause. I think that example right there just proves that what the Citizenship Clause means is merely territorial jurisdiction.

 

      And one last piece on this. The other word I think that’s important, often overlooked in this, the last half of the Citizenship Clause, “All persons born or naturalized in the United States and subject to the jurisdiction are citizens of the United States and of the state in which they reside.” That word reside that ends the clause indicates that there is something that is not just a temporary sojourner, somebody who happens to be passing through, but there is something greater than that. When they’re passing through, they’re subject to our laws. They’re subject to our territorial jurisdiction. But they don’t have that added thing that comes with a permanent domicile here.

 

      And there are lots of examples of treatise writers and Supreme Court language that draws that distinction, and in the debates on the Fourteenth Amendment itself, between sojourners and permanent. It wasn’t much of a focus because we were doing everything we could to populate the country as quickly as we could, so they weren’t looking for ways to keep people out or to limit immigration. But the couple of times it does arise, that distinction seems fairly critical.

 

Prof. Eugene Volokh:  Well, I will say Wong Kim Ark, to be sure, not on an issue that they had to specifically deal with, reverted to English law that specifically talked about — and voted favorably the English law — specifically talked about whether the parents were settled or merely temporarily sojourning in the country was an English subject. So maybe they were wrong on that, but that seems to me that’s the strongest point on the temporary sojourn.

 

Prof. John Eastman:  That’s right, but beyond the actual facts of the case, permanently domiciled here, that language has to be taken as dicta. And I think you’ll agree with me that the Supreme Court has never held that the children of temporary visitors, whether lawful or unlawful, present in the United States are citizens. We've taken the dicta in Wong Kim Ark as though it were having already settled this issue, but it really didn’t get settled for quite some time.

 

      We have issues with the Passport Office giving out passports to children who were born in the United States who by definition under Wong Kim Ark’s dicta would be citizens, and yet, the Passport Office insists on knowing of the status of the parents at the time of their birth before they deem them to be citizens. That change in the passport rules doesn’t happen until 1967. So we’ve got a long period of time where the dicta of Wong Kim Ark is not viewed as controlling, and never has the Supreme Court actually issued a holding that makes it controlling in these other circumstances.

 

Prof. Eugene Volokh:  Well, John, so let’s talk about the holding. So let me ask you this. Is your view that permanent residents are within the jurisdiction of the U.S. or subject to the jurisdiction, but other residents, other non-citizens are not subject to the jurisdiction?

 

Prof. John Eastman:  So I’ve gone back and forth on this over the 20 years I’ve been looking at it. My initial thought was Wong Kim Ark was wrongly decided by even recognizing the allegiance of Chinese parents who by treaty were never allowed to become citizens. But that treaty also says on one hand that we recognize their human right to expatriate. That’s the same human right that we claim in our Declaration of Independence.

 

      Now, there’s a difference between the right to expatriate and the right to join another political community. We claim that we recognize their right to expatriate, but then in another part of the treaty that the Chinese put in, we say, “but we will never allow you to reject your subjectship of the Chinese emperor.” That was a violation of the fundamental human right we articulated in the Declaration of Independence.

 

      So what Wong Kim Ark’s parents had done is taken as far a step as we would allow to demonstrate their permanent domicile and allegiance to the United States, and I think that’s part of the reason why the end result holding is probably correct. But it’s complicated, as they say.

 

Hon. Andrew Guilford:  So we’ve got lots of questions. Micah, should we move to the next?

 

Micah Wallen:  Absolutely. We’ll move to the next caller in our queue.

 

Mark Holmes:  Hi. My name is Mark Holmes. I have a question for both speakers. We’ve been talking about the benefits of birthright citizenship. What about the costs? Are any of you aware of a case in which a child born in this country of sojourning parents then went on to join a hostile army, think the Wehrmacht, the Imperial Japanese Army, somebody like Hamdi who joined Al Qaeda?

 

      Or has anybody in that situation come back to the U.S. as an adult and been faced with a gargantuan tax bill for years of unfiled returns? I can speak from experience that there is no statute of limitation for unfiled returns, and that the U.S. exerts jurisdiction over all its citizens on their income from whatever source derived. Thank you.  

 

Prof. John Eastman:  Great question. I’ll tell you, like I mentioned at the outset or in my introduction, I was involved in the Yaser Esam Hamdi case. He was born in Baton Rouge, Louisiana, while his dad was here on a two year work visa working for Exxon on an oil rig off the coast of Louisiana. He went up -- he takes up with the Taliban. We capture him in the battles over there and send him to Guantanamo Bay. And then when they realize he’d been born in Baton Rouge, they start treating him as a citizen and sent him up to Norfolk, and then the case goes up to the United States Supreme Court in that character.

 

      But I’ve also been involved in a couple of other cases. Boris Johnson, the current Prime Minister of Great Britain -- we have a tax treaty with Great Britain for dual citizens, which is a contradiction in terms in my view. Boris Johnson had been born in the United States in New York while his parents were temporarily visiting here, but there’s also no question that he’s a British subject or British citizen.

 

      And we have a tax treaty that we won’t double tax. But for things that the British government doesn’t tax, we will. And so they don’t tax the capital gains on the sale of your primary residence, but we do, with certain threshold exemptions, of course. So when Boris Johnson sold his mansion in London, the British government doesn’t tax it, and we stepped in to tax it. I actually reached out to him to try and represent him to challenge the long arm of the IRS.

 

      Another group in France, they don’t get hit with the tax bill so much, but they do get hit with IRS regulations on banking to the point that the banks in France are now no longer allowing them to open up bank accounts because of the burdensome regulatory reporting requirements that comes from having foreign bank accounts if you’re a U.S. citizen. And I offered to represent them and say, “Look, don’t be challenging the restriction in the banking. Challenge the fact that they’re claiming you are citizens in the first place.” The answer I got back was, “Oh, no, no. You don’t understand. We like being citizens. We just don’t want to have to deal with any of the regulations.” So I haven’t found a case yet to bring it.

 

      There is a case pending now in the D.C. Circuit Court of Appeals involving the so-called ISIS bride, Hoda Muthana. And she was born a month after her dad had received a letter from his diplomat boss at the United Nations saying his services had been terminated. And under that view, she -- under Eugene’s view here, she would then be a citizen at birth because they’re no longer subject to the diplomatic immunity.

 

      The case is being fought over whether it’s the date he ceased being the diplomat or the date that the state department was notified of that fact three months after her birth. And if it’s the date of notification, then she’s still under diplomatic immunity and not a citizen. We are weighing in in the brief, and it doesn’t matter because at most, they were here temporarily. If he’d overstayed the reasonable time to leave the country that we give the diplomats, then they were here illegally. But even if he was in that window, they were at most temporary visitors at the indulgence. And under my view of the Citizenship Clause, therefore, she would not be a citizen in either case. So there are lots of different ways this interesting question comes up.

 

Micah Wallen:  We’ll now go to our next caller.

 

Caller 3:  Hi. I think this question was addressed a little bit earlier, but what I was wondering was whether the question is still open, whether the children of unlawful immigrants can be deemed non-citizens by the President or Congress? And what made me think that is has to be open is that Wong Kim Ark clarified that at least some people born here, for example, invading soldiers is the most common example we’ve been hearing, are not automatically citizens. And so I was just wondering or wanting to confirm that the Supreme Court may well decide that children of unlawful immigrants fall into that same class of persons that was suggested by Wong Kim Ark.

 

Prof. Eugene Volokh:  John, do you want to start?

 

Prof. John Eastman:  Sure, I’ll start. Look, I’ll be the first to concede that Eugene’s right in that the broader logic and dicta of Wong Kim Ark make it appear as if the question was already resolved. We didn’t act that way for about a half century after Wong Kim Ark, as far as I’ve been able to ascertain.

 

      But certainly, since the late 1960s, all of our agencies of government from the Passport Office on down, or on up, however you want to describe it, have assumed that anybody born on U.S. soil, no matter the circumstances, except for the children of diplomats, are citizens. And so as I’ve been dealing with this issue with members of Congress as well as the current administration, I have always tried to come on a doctrine of that it would be unfair to retroactively pull the rug out from people that we have been acting and treating as though they were citizens and to change that.

 

      But I do think it’s important that going forward, we recognize that the threshold floor that the Constitution sets, if I’m right, is much lower than anybody born on the soil is a citizen. And if Congress wants to fix -- and if the President were, for example, to make an executive order saying, “I read the Fourteenth Amendment, and I agree with Eastman,” as he’s said a couple of times publicly — called me a brilliant lawyer for coming up with this, I think — then he has as much interpretive authority in the absence of a Supreme Court decision on point as anybody else. And then if Congress would then weigh in and fill the gap, I think it could perfectly do so under its naturalization power.

 

      The question is, has that question already been settled by the language of the Fourteenth Amendment where it was admittedly not addressed at all in the context of illegal immigration or overstaying temporary visas or any of those things that raise the issue in our modern life?

 

Prof. Eugene Volokh:  So anything could be up for grabs again if enough people, especially people in particular positions want it to be. So it may be that if the President and Congress and, of course, the majority of the Supreme Court takes a particular view to become the view, Wong Kim Ark could be overruled. I will say if you look at that language of Wong Kim Ark, it says very specifically children born within the realm of foreign ambassadors or the children of alien enemies born during and within their hostile occupation of part of the king’s dominions are not natural born subjects because not born within the allegiance, the obedience, or the power, or as would be said today, within the jurisdiction of the United States.

 

      So you can imagine analogies. What if this is an alien enemy during hostile occupation of part of our country? How could you deal -- I’m not even sure. What if it were the three mile zone of the land? You could talk about questions having to do with things that are closely analogous. But an illegal alien, he may be violating the law, but they’re not engaging -- they’re not a citizen of an alien enemy, which, of course, isn’t an enemy as a person; it’s an enemy as a country. And it’s not during hostile occupation of part of the king’s dominions. And they are within the power within the jurisdiction of the nation.

 

      So the logic, to be sure, of something that the Court didn’t have to specifically address because it could have limited its reasoning to permanent residents, it didn’t limit the reasoning to permanent residents. It was speaking about the bigger picture question in the course of trying to figure out what to do with Wong Kim Ark, and it spoke in pretty broad terms.

 

      I think that as lawyers, we should recognize that they are probably going to be binding on the Court unless the Court is willing to say, “Yes, we’ve changed our minds,” which it always can and maybe will. But it doesn’t seem that that’s the way the smart money bets.

 

Prof. John Eastman:  Let me press on that, just real quickly. Yeah, go ahead, Judge.

 

Hon. Andrew Guilford:  I just want to say Eugene mentioned overruling Wong Kim Ark. I’m wondering if we could just designate that that issue is unresolved in Wong Kim Ark and go forward on that. And I wonder if all of these potential solutions are actions.

 

      The big thing for me is whether they’re retroactive. And the retroactivity laws can vary, depending on if we’re throwing out a regulation on Social Security registration, if we’re changing a Supreme Court decision, if we’re passing the statute, if we’re amending the Fourteenth Amendment. The big issue for me throughout all of this is if there’s any clarification, is it retroactive?

 

      And I do see it’s one o’clock, and perhaps our great leaders could tell us how much further we want to go. These are great questions, and I find the discussion fascinating. What do you all say? Micah? Anybody?

 

Micah Wallen:  I’m happy to finish up the last of the questions if our speakers are.

 

Prof. John Eastman:  Good.

 

Hon. Andrew Guilford:  All right. I interrupted you, John.

 

Prof. John Eastman:  So let me push on this issue because I think, Eugene, you will agree with this statement, although maybe I’m wrong, that because the actual facts of Wong Kim Ark involved and repeatedly were stated as involving lawful domiciles, permanent domiciles, that it would certainly be permissible for a Court, even one devoted to stare decisis, to distinguish rather than overrule Wong Kim Ark, and say that holding, despite its broader reasoning and its broader dicta, the holding is limited to the circumstances, and we don’t need to overrule it in order to distinguish it for the distinct different circumstances that we have presented to us today.

 

Prof. Eugene Volokh:  So I don’t think that that would be merely -- I don’t think that passage is dictum, and I don’t think it would be merely distinguishing it.

 

      This is a classic situation where the Court, in order to reach an issue that is before the Court, not to opine an issue that is not, but to reach the issue before the Court, has to make a threshold decision. If we’re going to decide if the Establishment Clause prohibits something or other, we need to decide whether its incorporated against the states under the Fourteenth Amendment.

 

      At one point, the Court had to make that decision. Likewise, in McDonald, it had to do the same with regard to the Second Amendment. The Court said, “Yes, it’s incorporated.” Mind you, by a split. There was a disagreement whether it’s due process or privileges or immunities, but it’s incorporated against the states. That’s the holding of the Court as to incorporation in McDonald.

 

      The facts in McDonald involve a handgun ban. But if the Court were ten years from now to want to say, “Well, the Second Amendment is not incorporated as to rifles or shotguns. It’s only incorporated as to handguns,” that would be overruling that part of the Second Amendment -- that part of Mc Donald because even though you can imagine the Court saying, “Well, we’re only going to decide the incorporation question as to handguns,” that wasn’t the path which the Court reached in order to get to its ruling. In order to get to its ruling on the Chicago handgun ban, it had to decide on the question of whether the Second Amendment was incorporated. It said, “Yes, that’s part of the holding.”

 

      Again, ten years from now, the Court might say, “We’re going to undo that part of the holding, to be sure not in a case involving handguns, but in a case involving shotguns.” So McDonald would be preserved, limited to its facts, more or less. But I don't think we doubt that the incorporation issue was holding as all of the Second Amendment and not just as to the particular facts of the case.

 

      Likewise here. In order to get to the question of Wong Kim Ark’s status, they had to interpret what born subject to the jurisdiction means, and they said born subject to the jurisdiction is born in the U.S. but with these exceptions. Later on, they could try to limit that to Wong Kim Ark’s facts, but that would involve an overruling of the holding as to the meaning of within the jurisdiction.

 

Prof. John Eastman:  Yeah. See, I disagree with it.

 

Prof. Eugene Volokh:  It was totally wrong. I think they’re entitled to overrule the facts.

 

Prof. John Eastman:  Yeah, but see, the breadth of the holding as including both permanent domiciles as well as sojourners is unnecessary to the holding’s conclusion that permanent domiciles are here. I think this is different in kind than your McDonald example.

 

      And here’s what Justice Gray himself says about that because he’s overruling or not following the dicta in Slaughter-House. He says, “It is well to bear in mind the oft quoted words of Chief Justice Marshall. It is a maxim not to be disregarded that general expression in every opinion are to be taken in connection of the case in which those expressions are used. If they go beyond the case, they may be respected but ought not to control the judgement in a subsequent suit where the very point is presented for decision.”

 

      So yes, they have very broad language about what subject to the jurisdiction means. It includes citizens. It includes permanent domicilers. It includes sojourners. It includes everybody except the children of diplomats and invading armies. But the question beyond permanent residents was not at issue. We can respect the reasoning that get them there, but when I ask the very question that is now presented, does it include sojourners as well, that reasoning may no longer apply to the extent that it did for permanent residents. And that’s why we have the rules we have about dicta.

 

Micah Wallen:  All right. We’ll try and fit one more person in here before we close out for today. Caller, you’re on the line.

 

Caller 4:  Hello. Thank you. I just want to thank Professor Eastman as well for your comments on the topic. I want to press a little more on what you were asked a little earlier about whether lawful permanent residents is the line. And let’s say that it is. Since your Newsweek article, has anybody ever seriously looked into whether Senator Harris’s parents, either of them, were lawful permanent residents at the time of her birth?

 

      And picking up on the Judge’s question, I’m just taking a little different direction, is remedies. There’s obviously no appetite right now to challenge Senator Harris’s eligibility to serve as Vice President, but that might change if she’s elected. So how would seeking redress on this point actually look like, either perhaps during an election challenge or after the election?

 

Prof. John Eastman:  Great. As you might imagine, I got a lot of response to my Newsweek article; some of it helpful, most of it not. But you recall, in the Newsweek article, I didn’t issue a pronouncement on her eligibility one way or another. I asked the question, and I said if her parents had become naturalized citizens by the time of her birth, then she’s clearly eligible. She was, after all, born in Oakland.

 

      And I said under Wong Kim Ark, if her parents had become lawful permanent residents, which is Green Card holders -- and by the way, acquiring a Green Card is a step of taking an allegiance to the country beyond merely being here on a student visa or a work visa. So I’m comfortable with the actual holding line that Wong Kim Ark draws if we limit it to lawful permanent residents because of what that means.

 

      But what appears to be the case, although I’ve not verified this, her mother came in the late 1950s on a student visa. She got a PhD nine months before Kamala Harris was born. And that, therefore, ends her student visa, and she has, under the law at the time, 60 days to depart. She didn’t depart and doesn’t appear to have acquired a Green Card either because the following September, just three weeks before Senator Harris was born, she’s asking for a kind of a “work related to my studies” extension of her visa. So it looks like she was still, in either case, on a temporary visa.

 

      Her father doesn’t end up being -- he was still a student at the time and for three years more. So it looks like he was on a student visa at the time. And I have -- somebody sent me a copy of the bill of the -- the passenger manifest of the ship that brought him to the United States from Jamaica indicating that he was here temporarily for studies. So I think the evidence -- it’s not definitive yet. I’ve not seen the actual documents. But it looks like they were both here on student visas, one still as a student, the other having overstayed the student visa when Senator Harris was born.

 

Prof. Eugene Volokh:  So I think the interesting part of the question has to do with what -- if you do conclude that somebody is ineligible to the office, what do you do about things that they have done while they were ineligible, and who has the standing to challenge them? So what happens if, let’s say, Vice President Harris casts a deciding vote in the Senate. Can somebody have standing to get that legislation invalidated when it’s later applied against them?

 

      I think it may raise interesting questions. I don't know the answers to them, but at least I know the labels I’ve looked at. One is the de facto officer doctrine. And another is the question of whether the Electoral College’s decision to cast -- or the electors’ decision to cast a particular vote, and then Congress’s decision to accept those votes under the Electoral Count Act, whether that is dispositive. And that just leaves no room for that.

 

      This is purely hypothetical. I think that Kamala Harris is a natural-born citizen, fully eligible to the job. But it is an interesting question whether -- what happens if this is uncovered maybe because of the age qualification, maybe the number of year residence in the U.S. qualification. So these are interesting questions.

 

      There are bodies of law that try to answer them. Again, I’d look under the things like the de facto officer doctrine. And there are also questions as to what extent it’s a political question laid at the door of the Electoral College and the Senate rather than the courts. But those are the kinds of things I think one ought to look to to try to figure that out.

 

Prof. John Eastman:  What we learned during the 2008 election and the numerous challenges that were filed to Barak Obama’s eligibility, most of those were filed by private citizens and were thrown out on standing grounds. So the key issue is going to be who has the particularized injury.

 

      You could imagine a county clerk or a state secretary of state declining to put somebody on the ballot having made a determination about ineligibility. And then that would provoke a suit by the candidate. You can imagine a challenge to the casting of the electoral votes when in the joint session of Congress on January 6 somebody raises the challenge because that’s their judicial role to determine the eligibility. Beyond that, if it goes through, I think I would agree with Eugene that the de facto officer doctrine is -- the Court’s never going to get involved at that point.

 

      And by the way, this is not the first time we’ve faced this issue in our history. And what’s tended to be the case, as it was with McCain, who I think his eligibility, which was not established under the immigration law at the time, was quickly shuffled under the rug because nobody wanted to deal with it. It happened with Henry Clay. He was 29 when he was elected to the Senate and took his seat before he turned 30 in direct violation of Article I. And so some of these things just get played out in the joints with nobody raising the question. The real issue in my mind is what happens if somebody does raise the question in a way that it needs to be addressed?

 

Hon. Andrew Guilford:  May I just say that it’s a fascinating and important question. As I look at the question and answers and all the questions presented, they are very enlightening. I wish we could -- can we retain them? If we could retain them, I’m sure the two professors might want to look at some of them because they raise interesting questions.

 

      I will say in that case I started with where the young pregnant woman asked me to sentence her longer than I normally would, I went ahead and did that. And the issue was never raised about basically challenging the core principle that if she had the child in jail, that child would be a United States citizen. So the issue remains very important to all of us, and I certainly appreciate the professors’ insights and the discussions and the questions we’ve received.

 

      So where are we now, Micah?

 

Micah Wallen:  Absolutely. I think we can go ahead and wrap up for today. We’ll try our best to keep track of those Q&A and circulate them afterwards. And also, we received a few questions from people who joined late, wondering if this will be recorded and available. This will be placed on our website. There will probably be a day or two turnaround before this goes up, so feel free to come back then for the beginning of the program if you missed it.

 

      I’d also like to thank all of our speakers for their valuable time and expertise today, and thanks to our audience for their attendance. We had a really great audience today. Thank you all for joining us, and we are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.