Jurisdiction doesn’t count --- in the U.S. refers to physically within

Charles R. Flores, Counsel of Record, William R. Peterson, Beck Redden LLP, Thomas v. Lynch, Petition for Writ of Certiorari, SCOTUS, 2016

Before the Fifth Circuit, Thomas once again argued that “the military base . . . where he was born was ‘in the United States’ for purposes of the Fourteenth Amendment.” App. 7a. He rooted this position in multiple lines of authority, including United States v. Wong Kim Ark, 169 U.S. 649 (1898), 5 Reid v. Covert, 354 U.S. 1 (1957), and Boumediene v. Bush, 553 U.S. 723 (2008).

The Fifth Circuit issued a precedential opinion deciding “whether a United States military base located within what is now Germany was ‘in the United States’ for purposes of the Fourteenth Amendment.” App. 4a. The opinion correctly noted that “Thomas was not a statutory birthright citizen because his father did not meet the physical presence requirement of the statute in force at the time of Thomas’s birth.” App. 6a. It recognized the constitutional question as being dispositive: “If Thomas derived birthright citizenship from the Fourteenth Amendment, we must grant his petition for review because only aliens can be deported.” App. 5a.

The Fifth Circuit denied the petition for review by deciding that “Thomas is not a citizen, because the United States military base where he was born, which is located in modern-day Germany, was not ‘in the United States’ for purposes of the Fourteenth Amendment.” App. 5a. The decision rests on several key holdings about the Citizenship Clause’s geographic reach.

First, the Fifth Circuit defined the Citizenship Clause in a literal way, without considering its original meaning at the time of enactment. It held that the Citizenship Clause’s phrase “in the United States” is an unambiguous “express geographical limitation, which does not encompass the military base where Thomas was born.” App. 11a-12a. 6

Second, the Fifth Circuit held that two of this Court’s decisions play no role whatsoever in defining the Citizenship Clause’s reach: United States v. Wong Kim Ark, 169 U.S. 649 (1898), and Reid v. Covert, 354 U.S. 1 (1957). Each received close attention.

Wong Kim Ark construed the Citizenship Clause at length and understood it to incorporate “jus soli” – an established common law of citizenship principles defining the right’s territorial reach in terms of birthplace (as opposed to parental identity). Wong Kim Ark, 169 U.S. at 654-693. But because of the Fifth Circuit’s literal reading, it dismissed Wong Kim Ark as “inapposite.” App. 13a-14a.

By rejecting Wong Kim Ark and jus soli, the Fifth Circuit refused to consider the United States’ “jurisdiction” or “dominion.” App. 7a-12a. It thus disregarded as irrelevant the issue of “whether the treaties applicable to the military base in which Thomas was born rendered it ‘subject to the jurisdiction or within the dominion of the United States.’ ” App. 10a-11a.