“Of course.”
“No one wants to change that.”
As mid-20th century American leaders both on and off the Supreme Court pondered America’s place in a brutish world, these are the words they used, unhesitatingly and repeatedly, to affirm their loyalty to, and indeed their love of, America’s cherished principle of equal birthright citizenship. All babies born on fully-American soil and squarely under the American flag are born equal citizens, regardless of their parents’ race, or religion, or marital status, or domicile, or immigration status. (Those born under other flags or on other soil – including, alas, those born in certain overseas lands ruled by America but arguably distinct from the United States, strictly defined – raise different issues.)
Consider, for example, the facts of a case decided by the Supreme Court in 1957, United States ex rel. Hintopoulos v. Shaughnessy. In July 1951, Elizabeth Hintopoulos, an alien seaman and expectant mother in her second trimester, legally entered the U.S under rules that obliged her to leave within a month of her arrival. After seeking medical advice, she decided to stay ashore, unlawfully, beyond this interval. About a month after Elizabeth’s arrival, her husband Anastasios (presumably the father of her unborn child) reached the United States. He too was an alien seaman and he too unlawfully stayed in America beyond his legal visa period. In November, Elizabeth gave birth on American soil, proverbially under an American flag, to a son. Though the court did not tell us his name, let’s call him Adam. In January 1952, the married couple voluntarily disclosed their illegal presence to U.S. immigration officials and asked that they not be deported, invoking Section 19(c) of the Immigration Act of 1917, which allowed officials to suspend deportation in situations involving “serious economic detriment to a citizen . . . who is . . . the minor child of [a] deportable alien.”
In the harsh parlance of today’s MAGA movement, Elizabeth and Anastasios were illegal aliens. Both of them! Elizabeth was, arguably, a birth tourist. Adam was, from one angle, an anchor baby. Both parents initially stayed in the U.S. in willful and surreptitious defiance of U.S. immigration laws. Yet here is what the U.S. Supreme Court, per Justice John Marshall Harlan II, said on behalf of himself and five other justices: “The child is, of course, an American citizen by birth.”
Let’s linger on those passing words: “Of course.” Obviously. Duh.
Now consider this opinion’s author – a traditional and highly respected Princeton conservative placed on the court by a war-hero-president, Dwight Eisenhower. (As a conservative Princeton undergraduate in the late 1960s and early 1970s who himself dreamed of one day sitting on the court, young Samuel Alito idolized Harlan II.) Consider also the justices who joined Harlan that day – two other Republican-president (Ike) appointees and three Democratic-president (FDR and Truman) appointees.
Two justices dissented in the case, but they expressed no disagreement with the majority’s “of course.” Indeed, they went even further on Adam’s behalf: “The citizen is a five-year-old boy who was born here and who, therefore, is entitled to all the rights, privileges, and immunities which the Fourteenth Amendment bestows on every citizen.”
If you blink, you might miss it, but read this sentence again. “Therefore.” Of course. American-born babies of foreign travelers, even if the parents are here illegally, are themselves, simply by dint of their own soil-and-flag birth, therefore citizens.
What does today’s solicitor general say about Hintopoulos? He doesn’t. Hintopoulos goes entirely unmentioned in two merits briefs that together span more than 70 pages, despite the fact that a brilliant amicus brief by three of America’s most accomplished immigration scholars highlighted Hintopoulos above all other modern cases. The case was also prominently mentioned – including its key words “of course” – by another notable Princeton alum, Justice Sonia Sotomayor, in last term’s closely related Trump v CASA case. The nearest that Solicitor General D. John Sauer comes to engagement is a quick reference to modern cases in which, according to Sauer, the “Court assumed that children of illegal aliens born here are U.S. citizens.”
Contra Sauer, Hintopoulous did not “assume” this point. Hintopoulos asserted this point. Obviously. Unanimously. Adam’s obvious citizenship was the entire pivot point of the case, the statutory prerequisite to the entire legal dispute. Adam’s rock-solid bulletproof citizenship was the express statutory reason that officials were allowed (but not obliged) to suspend deportation of his illegal-alien parents. (In the end, immigration officials decided not to suspend deportation and the court majority said that was OK. The dissenters would have reversed the immigration officials and required suspension of deportation.)
Why was the Hintopolous court so clear on this issue?
First, because the 14th Amendment itself was clear. (It remains clear today.)
Second, because the birthright citizenship clause of a 1940 statute in place when Adam was born and the birthright citizenship clause of a 1952 statute repeating the earlier verbatim were both clear on the point. (The 1952 statute remains on the books today and it, too, remains clear. Other provisions of this statute were later revised in light of Hintopoulos, especially in 1965 – but not this statute’s birthright citizenship clause. By their selective actions and inactions, subsequent Congresses have clearly blessed the “of course” part of Hintopoulos. Judges today must thus give great weight to this blessing – see, for example, the 1978 case of Lorillard v. Pons at pages 580-82.)
Third, because the immigration officials seeking to deport Adam’s parents were clear on this point. The Board of Immigration Appeals twice called Adam an “American citizen infant child,” and elsewhere called him an “American citizen child.”
Fourth, because the brief filed by the solicitor general in Hintopoulos was also crystal clear: “In November 1951, their child was born in the United States and is a citizen of the United States.” In other words, the man standing in Sauer’s shoes back then did not “assume.” He asserted. He did not simply concede for argument’s sake that Adam was a birthright American citizen. He stated emphatically that – of course – Adam was a birthright citizen. It did not matter that Adam’s parents were not here permanently or even legally. Adam was “born in the United States.”
The SG back then was Ike’s solicitor general, J. Lee Rankin, who had earlier argued by special leave of the court on behalf of the Black students in Brown v. Board of Education. In 1957, Rankin in Hintopoulos was entirely straight with the court.
Back in 1940, when Congress was first pondering statutory language affirming birthright citizenship, it ultimately chose language that closely tracked the language of the 14th Amendment itself. Sauer’s briefs argue in effect that this statute should not be read to protect more than the amendment, as Sauer himself now (mis)construes that amendment.
In fairness to Sauer – and we do want to be fair to him, he is obviously an accomplished and talented lawyer – we could imagine some theoretical world in which his argument might be sound. Imagine that Congress passes a statute that only grudgingly accepts a constitutional mandate. In that imagined world, perhaps Congress would love to have an amendment collapse via future judicial interpretation, and might even try to craft a companion statute that would likewise collapse on cue.
But this theoretical world was miles away from what actually transpired in the 1940s and 1950s as Americans looked out across the ocean at Hitler and Mussolini and Stalin and their ilk. Leading Americans back then loyally and lovingly embraced the clear letter and obvious spirit of the Lincoln-inspired 14th Amendment’s sweeping guarantee of soil-and-flag equal birthright citizenship, as reaffirmed by the Supreme Court in Wong Kim Ark and many other cases.
One particular exchange in Congress is especially worth recounting. In 1940, Texas Congressman William R. Poage was still a young member of the House of Representatives. (He would eventually serve more than 40 years in the House.) In one key committee hearing, Poage referred to “the constitutional provision that all persons born in the United States are citizens thereof.” The expert witness, an eminent immigration scholar and public servant named Richard Flournoy, quickly responded that “no one wants to change that.” No one. Now listen to Poage’s liturgical response: “No one wants to change that, of course.”
No one. Of course.
This is where America was when landmark and constitutionally faithful birthright-citizenship statutes were enacted and reenacted with strong support and clear understandings of all three branches of the federal government, backed by a broader popular culture.
Alas, this is not where America seems to be today. Where have you gone, Joe DiMaggio?
Posted in Brothers in Law, Featured, Recurring Columns
Cases: Trump v. Barbara (Birthright Citizenship)