President Trump is claiming the power to bar foreign women from entering the U.S. to have babies; he wants to make sure their children can’t become American citizens.  He seems convinced that a recent Supreme Court ruling against him on that constitutional point is not a problem.

A new Executive Order signed by the President last week pulls a short phrase out of that lengthy Court decision as the basis for the new claim.  The phrase is well known in the law as a “legal fiction,” that is, a phrase that is not literally true but seems like it is, and serves as a shorthand for a respectable legal principle.

It takes a few steps to unravel what the President is trying to do.  Let’s start with how that Order describes what the Supreme Court did in its June 30 ruling in the case of Trump v. Barbara. The legal fiction that the Order picked out is emphasized here:

“. . . the Supreme Court decided that the Citizenship Clause of the Fourteenth Amendment of the United States Constitution extends the privilege of citizenship to children born to parents in the United States ‘for whom no extra-territorial fiction applies’ . . . .”

The phrase “extra-territorial fiction” has a first-rate pedigree. In English law it can be traced back to the great jurist Sir Edward Coke in 1608; in American law, it was cited in 1812 by Chief Justice John Marshall, considered the greatest Justice ever.

Both of them were talking about the powers of a king and the duties owed by his subjects.  In return for obeying and respecting his laws and powers, the king provides protection to the citizenry. Clearly, this compact applied when the king was in his homeland. The legal fiction is that it also applies when the king travels to another country where he is not the sovereign. Under the legal fiction, when the king is away (“extra-territorial”) he is said to possess the same dignity and powers as if he were physically present back home.

That reflects a standard legal bargain between sovereign nations.  Each of them is understood to have the power to govern within their own borders, but their leaders – and their diplomats – are entitled to dignified respect elsewhere.

Another way to make sense of the fiction is to apply it to a warship of a foreign nation when it enters a U.S. port.  While there, the ship is considered to be back in its home waters.  In fact, that was exactly the scenario that Chief Justice Marshall was dealing with two centuries ago in the case of The Schooner Exchange v. McFadden.

An American-owned schooner, The Exchange, had been seized at sea by military forces under French Emperor Napoleon.  However, hit by storms, it had to put into port in Philadelphia.  The former American owners sued to recover the vessel, but the Marshall Court ruled against them, saying it would be beneath Napoleon’s imperial dignity to take away the ship he had captured.

The Schooner Exchange precedent was cited several times in June by Chief Justice John Roberts as he relied on the fiction in defining who qualifies for birthright citizenship under the Constitution’s Fourteenth Amendment.

That Amendment’s Citizenship Clause, as ratified in 1868, has two parts: (1) “all persons born or naturalized in the United States” are deemed to be U.S. citizens at that moment, but (2) at their birth, they must also be “subject to the jurisdiction” of the United States.

Much of the debate in the Supreme Court in the case of Trump v. Barbara was on the jurisdiction requirement.  The key issue was who among those born on U.S. soil is beyond U.S. governing authority, and thus not eligible for citizenship at birth?  Who is excepted?

Left out, as the Court interpreted the Clause in 1898, are (a) children born to visiting foreign leaders or diplomats; (b) those born while aboard foreign ships; (c) those born to enemy military forces occupying a part of the U.S., and (d) those born to Native American parents who live within tribes.  Each category is exempted under the legal fiction that such persons owe “allegiance” to a government (or sovereign) other than the United States.

(Children born to parents within tribes seems a bit odd in this grouping, but the Constitution treats Native Americans as somewhat independent of the sovereign U.S. government.  In 1884, in the case of Elk v. Wilkins, the Court ruled that the Citizenship Clause did not apply to those children. Since 1924, under a law passed by Congress, all of those children are U.S. citizens.)

Since the Court’s 1898 precedent in United States v. Wong Kim Ark, the four categories of exceptions under the Citizenship Clause have been treated as what is called “a closed set,” that is, as the sole permissible exceptions. In other words, it would be unconstitutional to attempt to add another ineligible category.

That, however, is what President Trump attempted last year, on the first day of his second term in office.  He wanted to deny citizenship at birth to foreign parents who did not have legal permission to be in this country, and to foreign parents who were visiting in the U.S., to work, study or tour.  On June 30, the Court struck down that attempt, by a vote of 5 to 4.

In the majority opinion by Chief Justice Roberts, the four exceptions were reaffirmed as a “closed set.”  (In legal terms, no other babies would qualify for ‘extra-territorial’ treatment, like children of a foreign ambassador in the U.S.)

On Thursday, however, Trump’s Executive Order quoted the fiction but then went on to add “certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.”  In short, the category of excluded children would be significantly expanded beyond what has existed for more than two centuries.

Here is Trump’s new list of U.S.-born children who, under the Order, cannot become citizens because a foreign parent:

·       Lives in the U.S. and has been officially designated as a foreign terrorist.

·       Works in the U.S. for any foreign government in any official capacity.

·       Tries to buy birthright citizenship for the child, or commits fraud in an attempt to do so,

·       Pays someone to bring a foreign pregnant woman to the U.S. to give birth.

·       Hires a surrogate person living in the U.S. to bear a child for a foreign parent.

A final category added to the list is a child who was born in a U.S.-governed territory where the residents are not entitled to citizenship under existing U.S. law.  The only place where that would apply is American Samoa, in the Pacific Ocean.

The Supreme Court majority, of course, held fast in June to the four categories listed in the “closed set” of ineligibles.  So, where did White House lawyers find the authority to expand the list?

The most likely place was in an opinion in June by Justice Brett M. Kavanaugh, writing only for himself.  His basic argument was that the Court, if it felt a need to rule on the meaning of the Constitution’s Citizenship Clause, should change its mind from how it ruled in 1898.  Kavanaugh argued that immigration into the U.S. is now a bigger problem than it was in 1898, and the Court should now add to the list of ineligible children.  He said he would uphold the expansions that Trump had wanted last year, which the new decision struck down: children of foreign parents who were in the U.S. illegally or only temporarily.

The problem, though, is that Kavanaugh was a dissenter.  The three other dissenting Justices – Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas – each wrote an opinion supporting the Trump Administration’s appeal.  Chief Justice Roberts devoted a significant part of his majority opinion seeking to answer the dissenters.

The Court’s majority opinion had the full support of Justices Amy Coney Barrett, Ketanji Brown Jackson, Elena M. Kagan and Sonia Sotomayor.  Justice Jackson wrote a separate opinion, partly joined by Sotomayor.

Civil liberties lawyers who defended the “closed set” of ineligibles in the Trump v. Barbara case expressed outrage at the President’s new Executive Order. They are likely to return to court to challenge it.

There has been some talk among Republicans in Congress about changing federal law to withheld citizenship as Trump wishes, but the Supreme Court decision is a constitutional ruling that can be altered only by formal amendment, an exceedingly difficult process.