Suppose the Barbara Court got the meaning of the Fourteenth Amendment exactly right. Even then, it is not obvious why the challengers won a judgment in their favor on the constitutional question. That is because there is a puzzle in the majority opinion—a gap between the rule it announced and the application of the rule to President Trump’s Executive Order (EO). That gap exists because the federal government never argued that it could win under the constitutional rule the majority adopted. Nor have any post-Barbara commentators, to my knowledge. But there is a plausible argument that even under Barbara’s interpretation of the Fourteenth Amendment, the government may reform birthright citizenship along the EO’s lines—including by denying citizenship to children of illegal aliens.
In Trump v. Barbara, the Supreme Court held that all children born in the United States “for whom no extraterritorial fiction applie[s]” are citizens. This Essay accepts that rule for the sake of argument, but questions its application to the classes of aliens affected by the EO. Some of those aliens are subject to a legal fiction of extraterritoriality: the “entry fiction,” an immigrationlaw doctrine that applies to at least some unlawfully or temporarily present aliens. No opinion in Barbara addressed the entry fiction, so whether it creates an exception to birthright citizenship is unclear. But at first glance, (1) children “for whom [an] extraterritorial fiction applie[s]” are not necessarily birthright citizens, and (2) an “extraterritorial fiction” (the entry fiction) does “appl[y]” to many children of unlawfully and temporarily present aliens. So (3) there is a plausible case for an exception covering those children—even on Barbara’s territory-based account of the Citizenship Clause. I explain that syllogism in Part I.
Of course, readers should not “dissect the sentences of the United States Reports as though they were the United States Code.” So is the entry fiction really the kind of extraterritorial fiction that Barbara counts, or is Part I’s syllogism just wordplay? I propose some objections along those lines in Part II: that (1) the entry fiction developed too late in time to count for Fourteenth Amendment purposes; (2) the doctrine developed in (and is thus confined to) the due-process context; (3) this fiction does not count for birthright citizenship purposes because it covers aliens who are regulable by American law; and (4) the fiction applies only to parents, not their children. Each objection, however, contains serious flaws.
Finding none of those objections adequate, I address the implications in Part III. In Barbara, the government likely forfeited any argument that the entry fiction saves President Trump’s EO under the majority’s territory-focused view of the Citizenship Clause. But because the entryfiction argument is plausible, the government should raise it when defending future executive, administrative, and legislative actions implementing similar policies.
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