Birthright Citizenship Litigation Links
Some of the jurisprudence, legal commentary, and executive and legislative branch materials on this non-comprehensive list has already been cited in ongoing litigation over Trump’s birthright citizenship order. The Supreme Court’s 19th-century observation that “domiciled aliens” could be prosecuted for treason is one of several items relating to “allegiance.” (Carlisle v. United States, 83 U.S. 147, 155 (1872)).
If links don’t work or if you notice other errors, please comment so that I might correct them. [UPDATE, 4/6/2025: Links to the Casetext website have been removed as the linked pages are no longer accessible.]
Executive Order Litigation
Executive Order 14160, 90 FR 8449 (Jan. 20, 2025)
Constitution of the United States, 14th amendment (U.S. Senate)
8 U.S.C. 1401(a) (Citizenship at birth)
Constitution of the United States with Index and the Declaration of Independence, Pocket Edition, 25th ed. (H.R. Doc. 112-129, Jan. 1, 2012)
Memorandum Opinion, CASA, Inc., et al. v Trump, No. 25-cv-201 (D. Md. Feb. 5, 2025) (CourtListener Docket, Maryland)
Order, State of Washington et al. v. Trump, No. 25-cv-127 (W.D. Wash. Feb. 6, 2025) (CL Docket, Washington)
Preliminary Injunction Order, New Hampshire Indonesian Community Support et al. v. Trump, No. 25-cv-38 (D.N.H. Feb. 11, 2025) (CL Docket, New Hampshire)
Memorandum of Decision on Motions for Preliminary Injunction, New Jersey et al. v. Trump, No. 25-cv-10139 (D. Mass. Feb. 13, 2025) (CL Docket, Massachusetts)
Order, State of Washington et al. v. Tramp, No. 25-807 (9th Cir. Feb. 19, 2025) (CL Docket, Ninth Circuit)
Order, CASA, Inc., v. Trump, No. 25-1153 (4th Cir. Feb. 28, 2025) (CL Docket, Fourth Circuit)
Brief for Appellants, State of Washington et al. v. Tramp, No. 25-807 (9th Cir. March 7, 2025) (CL Docket, Ninth Circuit)
Opinion, New Jersey et al. v. Trump, No. 25-1170 (1st Cir. Mar. 11, 2025) (CL Docket, First Circuit)
Application for a Stay of The Injunction Issued by the United States District Court for the District of Massachusetts, Trump v. State of New Jersey, et al., No. 24A886 (Mar. 13, 2025) (Supreme Court Dockets: 24A884, 24A885, 24A886)
Brief of Immigration Reform Law Institute as Amicus Curiae in Support of Applications for Stay, Nos. 24A884, 24A885, 24A886 (Mar. 19, 2025)
Supreme Court opinions
Slaughter-House Cases, 83 U.S. 36 (1872) (U.S. Reports)
Carlisle v. United States, 83 U.S. 147, 155 (1872) (U.S. Reports)
Elk v. Wilkins, 112 U.S. 94, 5 S. Ct. 41, 28 L. Ed. 643 (1884) (U.S. Reports)
United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890 (1898) (U.S. Reports)
Kaplan v. Tod, 267 U.S. 228, 45 S. Ct. 257 (1925) (U.S. Reports)
Rogers v. Bellei, 401 U.S. 815 (1971) (U.S. Reports)
In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851 (1973) (U.S. Reports)
Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895 (1976) (U.S. Reports)
Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982) (U.S. Reports)
INS v. Rios-Pineda, 471 U.S. 444, 105 S. Ct. 2098 (1985) (U.S. Reports)
Other jurisprudence
Calvin’s Case, 7 Coke Report 1a, 77 ER 377 (Commonwealth Legal Information Institute, Constitution Society)
Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. Ch. 1844) (CourtListener)
Munro v. Merchant, 26 Barb. 383 (N.Y. 1858) (CourtListener)
In re Look Tin Sing, 21 F. 905 (9th Cir. 1884) (National Archives, NAID: 171480578)
In re Wong Kim Ark, 71 F. 382 (N.D. Cal. 1896) (National Archives, NAID: 18556184)
Lee Sing Far v. United States, 94 F. 834 (9th Cir. 1899)
In re Giovanna, 93 F. 659 (S.D.N.Y. 1899) (CourtListener)
Yuen v. Internal Revenue Service, 649 F.2d 163 (2d Cir. 1981)
Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015) (Panel opinion, audio recording of oral argument)
Opinion, Fitisemanu v. United States, Nos. 20-4017 and 20-4019 (10th Cir. Jun. 15, 2021)
Several articles and a monograph
Brend H. Gubler, A Constitutional Analysis of the Criminal Jurisdiction And Procedural Guarantees of the American Indian, Dissertation, Syracuse University (1963)
Gerald L. Neuman, Back to Dred Scott?, 24 San Diego L. Rev. 485 (1987)
Mark Shawhan, The Significance of Domicile in Lyman Trumbull's Conception of Citizenship, 119 Yale L. J. 1351 (2010)
Matthew Ing (2012), Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause, Akron Law Review: Vol. 45: Iss. 3, Article 6
Robert E. Mensel (2012), Jurisdiction in Nineteenth Century International Law and Its Meaning in the Citizenship Clause of the Fourteenth Amendment, 32 St. Louis U. Pub. L. Rev. 329 Saint Louis University Public Law Review: Vol. 32: No. 2, Article 6.
Mark Shawhan, 'By Virtue of Being Born Here': Birthright Citizenship and the Civil Rights Act of 1866 (September 1, 2011). Harvard Latino Law Review, Vol. 15, 2012 (SSRN Abstract)
Neal Katyal and Paul Clement, On the Meaning of “Natural Born Citizen”, 128 Harv. L. Rev. F. 161, 161 (2015)
Michael D. Ramsey, The Original Meaning of "Natural Born", 20 U. Pa. J. Const. L. 199 (2017)
Ana Delic, The short-lived Franco-American Consular Convention (1788–1800) and the trouble with reciprocal extraterritorial jurisdictional privileges, web publication/site, Oxford University Press (2019)
Amy Swearer, Subject To The [Complete] Jurisdiction Thereof: Salvaging The Original Meaning Of The Citizenship Clause, 24 Tex. Rev. L. & Pol. 135 (2019)
Michael D. Ramsey, Originalism and Birthright Citizenship (August 26, 2020), 109 Georgetown L.J. 405 (2020), San Diego Legal Studies Paper No. 20-469
Catherine Y. Kim, Citizenship Outside the Courts, 57 University of California Davis Law Review 253 (2023)
Kurt Lash, The State Citizenship Clause, 25 U. Pa. J. Const. L. 1097 (2024)
Andrew Hyman, Originalism, Illegal Immigration, and the Citizenship Clause (January 19, 2025) (SSRN Abstract)
Randy E. Barnett & Ilan Wurman, Trump Might Have a Case on Birthright Citizenship, The New York Times (Feb. 15, 2025)
Randy E. Barnett & Ilan Wurman, Birthright Citizenship: A Reply to Critics, Reason (Feb. 18, 2025)
Earl Michael Maltz, The Myth of the Fourteenth Amendment and the Civil Rights Act of 1866 (Feb. 28, 2025) (SSRN Abstract)
Anthony Michael Kreis, Evan D. Bernick, and Paul A. Gowder, Birthright Citizenship and the Dunning School of Unoriginal Meanings (March 03, 2025), 111 Cornell Law Review Online (forthcoming 2025) (SSRN Abstract)
Kurt Lash, Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment's Citizenship Clause (Revised, Mar. 22, 2025) (SSRN Abstract)
Acts of Congress
Act of April 30, 1790, ch. 9, § 1, 1 stat. 112 (Treason)
Act of July 22, 1790, ch. 33, 1 stat. 137 (Trade with Indian tribes)
Act of March 26, 1790, ch. 3, 1 stat. 103 (uniform Rule of Naturalization)
Act of January 29, 1795, ch. 20, 1 stat. 414 (uniform rule of Naturalization)
Act of June 18, 1798, ch. 54, 1 stat. 566 (uniform rule of naturalization)
Act of March 3, 1802, ch. 13, 2 stat. 139 (Trade with Indian tribes)
Act of March 3, 1817, ch. 92, 3 stat. 383 (crimes within the Indian boundaries)
Act of May 15, 1820, ch. 113, §§ 4-5, 3 stat. 600-601 (Piracy)
Act of February 10, 1855, ch. 71, 10 stat. 604 (Citizenship at birth outside the U.S.)
Act of March 3, 1863, ch. 75, 12 stat. 731 (Liability to perform military duty)
Act of April 9, 1866, ch. 31, § 1, 14 stat. 27 (1866 Civil Rights Act)
Act of July 27, 1868, ch. 249, 15 stat. 223 (Expatriation)
Act of May 31, 1870, ch. 114, § 18, 16 stat. 144 (reenactment of 1866 Civil Rights Act)
1 Revised Statutes 1041, § 5331 (1875) (treason)
1 Revised Statutes 351, § 1992 (1875) (Who are citizens)
Act of June 29, 1906, ch. 3592, 34 stat. 596 (uniform rule of naturalization)
Act of June 2, 1924, ch. 233, 43 stat. 253 (Certificates of citizenship for non-citizen Indians)
Nationality Law of 1940, Pub. L. 76-853, Oct. 14, 1940, title 1, ch. 2, § 201(a), 54 stat. 1138
Immigration and Nationality Act, Pub. Law 82-414, June 27, 1952, title 3, ch., 1 § 301(a)(1), 66 stat. 235
Pub. L. 118–47, Mar. 23, 2024, § 704, 138 stat. 573 (allegiance of employees in U.S.)
U.S. Code
18 U.S.C. § 2381 (Treason)
22 U.S.C. § 212 (Persons entitled to passport)
1866
Veto Message of Andrew Johnson, 1866 Civil Rights Act, Cong. Globe, 39th Cong., 1st sess. 1857 (April 9, 1866)
Debate on amending Section 1 to add “excluding Indians not taxed,” Congressional Globe, 39th Cong., 1st sess. 2890-2897 (May 30, 1866)
Letter from Sen. Lyman Trumbull to President Andrew Johnson (undated), in Andrew Johnson Papers, Reel 45, Manuscript Div., Library of Congress, Washington D.C. (for the provenance of the published copy of this letter, see Andrew Hyman, Originalism, Illegal Immigration, and the Citizenship Clause at 10 n. 21 (Third Draft, Feb. 17, 2025) (SSRN Abstract)
Proposed legislation
H.R. 2199, 2 Cong. Rec. 2491 (Mar. 26, 1874), 2 Cong. Rec. 3279 (Apr. 22, 1874)
H.R. 2245, 4 Cong. Rec. 2688 (Apr. 22, 1876) (Bill introduced Feb. 21, 1876, 4 Cong. Rec. 1205) (see also 4 Cong. Rec. 2081)
New York
An Act declaring the Jurisdiction of the Courts of this State, and pardoning Soo-non-gize, otherwise called Tommy Jemmy, April 12, 1822, ch. 204, printed in Laws of the State of New York passed at the 45th, 46th, and 47th Sessions of the Legislature, Vol. VI (1825)
New York Court of Appeals, Records and Briefs: Munro v. Merchant (1859)
Hatch v. Luckman, 64 Misc. 508, 515-16 (N.Y. Sup. Ct. 1909)
Antebellum examples of “subject to the jurisdiction”
Letter from Alexander H. Everett, Chargé d’Affaires U.S. to the Netherlands, to Baron de Nagell (Nov. 7, 1823), in Appendix to the History of the Eighteenth Congress [First Session] at 3034 ((“The act of 15th March, 1820, declares, (section 4 and 5,) that the persons subject to the jurisdiction of the Republic, who shall be engaged in the slave trade, either by seizing these unfortunates, by force or fraud, and carrying them on board their vessels, or by keeping them there, and making them an object of traffic, shall be deemed pirates, and punished with death.”) [emphasis added]
Breedlove and Robeson v. Nicolet and Sigg, 32 U.S. 413, 429 (1833) (U.S. Reports) (“There is no averment or proof that Bedford, one of the parties to the note, was subject to the jurisdiction of the court.”)
House Journal of the 25th Cong., 2nd sess., pt. 1 at 465 (Feb. 19, 1838) (“Mr. John Quincy Adams moved the following resolutions:
1. Resolved, That the just claims of citizens of the United States upon the Government of the Mexican republic, for indemnity for injuries inflicted upon their persons or property, committed by officers or other persons subject to the jurisdiction of the Mexican confederation, ought not to be sacrificed or abandoned by the Government of the United States.”) [emphasis added]
Treaty with China, July 3, 1844, Art. 25, 8 stat. 597 (“All questions in regard to rights, whether of property or person, arising between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the authorities of their own Government.”)
Botts, John Minor, Speech of John Minor Botts, at a dinner at Powhatan Court-house, Va. at 9, June 15, 1850 (“The people of New Mexico did not participate in the revolution of Texas—they have never been subject to the laws or jurisdiction of Texas—they did not participate in forming the present Constitution of Texas, and have had no more connection with Texas than with Virginia;…”)
The Congressional Globe, Volume 22, Part 1: 31st Congress, 1st Session, Appendix at 1577 (Aug. 9, 1850, Remarks of Sen. Davis) (“If these Indians are subject to the jurisdiction of the United States, it is merely by the good will of Texas that they are allowed to retain possession of the territory.”)
Brownell, Charles de Wolf, The Indian Races of North and South America at 485 (1853) (“According to the census taken, under the agency of Mr. Henry R. Schoolcraft, in pursuance of the act of Congress passed in March, 1847, the following returns were made of the numbers of the Indian tribes subject to the jurisdiction of the United States.”)
Treaty with the Choctaws and Chickasaws, June 22, 1855, Art. 14 and 17, 11 stat. 614, 615) (“Article 14. The United States shall protect the Choctaws and Chickasaws from domestic strife, from hostile invasion, and from aggression by other Indians and white persons not subject to their jurisdiction and laws ;…”
“Only such persons as are, or may be in the employment of the United States, or subject to the jurisdiction and laws of the Choctaws, or Chickasaws, shall be permitted to farm or raise stock within the limits of any of said military posts or Indian agencies.”) [emphasis added]
Senate Journal of the 36th Cong., 1st sess. at 651-652 (June 13, 1860) (“On motion by Mr. Sebastian, from the Committee on Indian Affairs, to amend the bill by inserting the following additional section :
Sec. —. And be it further enacted, That the President of the United States be, and he hereby is, authorized to appoint two commissioners, whose duty it shall be to proceed to the northern frontier of the State of Texas and take testimony, under such rules and regulations as shall be prescribed by the Secretary of the Interior, as to depredations and spoliations committed since the thirteenth day of December, eighteen hundred and fifty, on citizens of the United States on said frontier by Indians subject to the jurisdiction of the United States ; said commissioners shall be allowed a compensation of eight dollars per diem and their actual necessary traveling expenses ; and for the purpose of defraying the expenses of said commission the sum of ten thousand dollars is hereby appropriated out of any money in the treasury not otherwise appropriated, to be expended under the direction of the Secretary of the Interior ,
It was determined in the negative.”)
Opinions and Reports
Citizenship, 10 Ops. Att’y Gen. 382 (1862)
Citizenship of Children Born in the United States of Alien Parents, 10 Ops. Att’y Gen. 328 (1862)
Citizenship of Children Born Abroad of Naturalized Parents, 10 Ops. Att’y Gen. 329 (1862)
Letter from Hamilton Fish, Secretary of State, to Mr. Wing, Apr. 6, 1871, in John Bassett Moore, A Digest of International Law, Volume IV at 58 (1906)
Case of François A. Heinrich, 14 Ops. Att’y Gen. 154 (1872)
Passport Case of W.H.C. Succo, State Department Numerical File: 1-27/200 at 275-290, National Archives Microfilm Publication M862, Numerical and Minor Files of the Department of States, 1906-1910, Roll 1, NAID: 19086784)
Report on the Subject of Citizenship, Expatriation, and Protection Abroad at 73-74 (H. Doc. No. 326, 59th Cong., 2nd sess., 1906)
Looking to the Enlistment of Certain Alien Residents in the Army of the United States (Sen. Rep. No. 93, 65th Cong. 1st sess., July 30, 1917)
A Report Proposing A Revision and Codification of the Nationality Laws of the United States, Prepared at the Request of the President of the United States, by the Secretary of State, the Attorney General, and the Secretary of Labor, Part One: Proposed Code with Explanatory Comments at 7, House Committee on Immigration and Naturalization, 76th Cong., 1st Sess. (Comm. Print 1939)
Legislation Denying Citizenship at Birth to Certain Children Born in the United States, 19 Op. OLC 340 (1995)
Other treaties
Treaty with France, Nov. 14, 1788, Art. 12, in Treaties and Conventions Concluded between the United States of American and Other Powers since July 4, 1776, Revised Edition (S. Ex. Doc. No. 36, 41st Cong., 3rd sess., 1873)
Treaty with Mexico, April 5, 1831, Art. 9, 8 stat. 414
Convention with Peru-Bolivia, Nov. 13, 1836, Art. 4, 8 stat. 488
Treaty with the Argentine Confederation, July 27, 1853, Articles 2 and 10, 10 stat. 1006, 1009-1010
Treaty with Bolivia, May 13, 1858, Art. 7, 12 stat. 1008
Treaty with China, June 18, 1858, Art. 27, 12 stat. 1029
Treaty with Paraguay, February 4, 1859, Art. 11, 12 stat. 1096
Convention with Sweden and Norway, March 21, 1860, 12 stat. 1125
Wharton’s A Digest of the International Law of the United States
Francis Wharton, A Digest of the International Law of the United States, Vol. I (S. Misc. Doc. No. 162, Pt. 1, 49th Cong., 1st Sess., 1886)
Francis Wharton, A Digest of the International Law of the United States, Vol. II, (S. Misc. Doc. No. 162, Pt. 2, 49th Cong., 1st Sess., 1886)
Francis Wharton, A Digest of the International Law of the United States, Vol. III, (S. Misc. Doc. No. 162, Pt. 3, 49th Cong., 1st Sess., 1886)
Francis Wharton, A Digest of the International Law of the United States, Vol. I, 2nd ed., 1887
Francis Wharton, A Digest of the International Law of the United States, Vol. II, 2nd ed., 1887
Francis Wharton, A Digest of the International Law of the United States, Vol. III, 2nd ed., 1887