Section 1.    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Washington v. Trump

9th Cir.

|

Filed July 23, 2025

OPINION

GOULD, Circuit Judge:

1. FACTS AND PROCEDURAL HISTORY

A

The Fourteenth Amendment was adopted after the Civil War, in order to reject and refute the holding of Dred Scott v. Sandford, 60 U.S. 19 How. 393, 403, 15 L.Ed. 691 (1857), which in substance held that slaves and descendants of slaves were not citizens of the United States, and “to put citizenship beyond the power of any governmental unit to destroy.” Afroyim v. Rusk, 387 U.S. 253, 263, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967).

 When the Fourteenth Amendment was ratified, whether birthright citizenship applied to the children of noncitizens was still an open question. But the Supreme Court answered that question in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898). When the case was decided, Chinese nationals in the United States were not permitted to become citizens. See Chinese Exclusion Act, ch. 126, § 14, 22 Stat. 58, 61 (1882). Chinese laborers could not re-enter the United States if they left. See Scott Act, ch. 1064, 25 Stat. 504 (1888). Chinese laborers were also required to obtain a certificate of residence, and non-laborer Chinese persons were subject to a harsh presumption that they were unlawfully present. See Geary Act, ch. 60, 27 Stat. 25 (1892).

 Against that backdrop, the Supreme Court considered the case of Wong Kim Ark, a Chinese-American man who was denied reentry to the United States, despite being born in the United States. Wong Kim Ark, 169 U.S. at 652–53, 18 S.Ct. 456. The Supreme Court canvassed English common law, early American decisions, and citizenship's meaning to the Fourteenth Amendment's drafters and then held that the Citizenship Clause stands for “the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of the parents[.]” Id. at 688, 692–93, 18 S.Ct. 456. For that reason, although Wong Kim Ark's parents would have been unable to naturalize or even return to the United States, Wong Kim Ark acquired United States citizenship “by birth within the United States.” Id. at 704–05, 18 S.Ct. 456. Since Wong Kim Ark was decided in 1898, and until this challenged Executive Order, the Judiciary, Congress, and the Executive Branch have consistently and uniformly protected the Citizenship Clause's explicit guarantee of birthright citizenship regardless of the immigration status of an individual's parents.

B

On January 20, 2025, President Trump issued an Executive Order titled “Protecting the Meaning and Value of American Citizenship.” Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 20, 2025). Section 1 of the Executive Order states in relevant part,

the privilege of United States citizenship does not automatically extend to persons born in the United States:

(1) when that person's mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person's birth, or

(2) when that person's mother's presence in the United States at the time of said person's birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person's birth.

90. Fed. Reg. at 8449.

 Section 2 states that it is the “policy of the United States” that no federal department or agency shall issue documents recognizing such persons as United States citizens or accept documents issued by state governments recognizing such persons as citizens if they are born 30 days from the date the Executive Order was issued. Id.

 Section 3 directs the Secretary of State, Attorney General, Secretary of Homeland Security, and Commissioner of Social Security to “take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order” and mandates that officials cannot “act, or forbear from acting, in any manner inconsistent with this order.” Id. at 8449–50.

C

1. MERITS

Plaintiffs contend that the Executive Order violates the Fourteenth Amendment's Citizenship Clause. They also contend that the Executive Order violates the INA, 8 U.S.C. § 1401. We first address whether the Executive Order violates the Citizenship Clause.

1. Fourteenth Amendment

The text of the Fourteenth Amendment's Citizenship Clause explicitly reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside.” U.S. Const. amend. XIV, § 1, cl. 1. The parties dispute the meaning of “subject to the jurisdiction thereof.”

 Plaintiffs contend that the phrase “subject to jurisdiction thereof” means “subject to United States authority and laws,” and exempts a small and well-defined group of people who are born in United States territory yet not subject to United States authority. Because the Executive Order attempts to exempt from citizenship persons who are both born in the United States and subject to United States authority, Plaintiffs contend that it violates the Citizenship Clause.

 Defendants, in contending that the Executive Order is constitutional, advance a novel interpretation of the phrase “subject to the jurisdiction thereof.” They first contend that “jurisdiction” as used in the Citizenship Clause does not refer to “regulatory jurisdiction,” i.e., jurisdiction as defined by a government's authority and lawmaking power, but instead refers to “political jurisdiction,” which they define as “a concept rooted in allegiance and protection.” By their definition, persons are only subject to the political jurisdiction of the United States if they “owe primary allegiance to the United States,” excluding “those persons [who] owe allegiance to a different sovereign.” They then contend that a person only owes such allegiance to the country in which the person is permanently domiciled, and the domicile of a child follows the domicile of the parent. They assert that because individuals present temporarily or unlawfully in the United States cannot establish permanent domicile, their children born on United States soil do not owe allegiance to the United States and are not subject to its political jurisdiction.

1. Ordinary Meaning

We conclude that the text of the Fourteenth Amendment supports the Plaintiffs' interpretation. In interpreting the text of the Constitution, courts are “guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ ” District of Columbia v. Heller, 554 U.S. 570, 576, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931)). When the Fourteenth Amendment was adopted, as it is today, “jurisdiction” was commonly used in reference to the power of the courts, defined as “[t]he legal power or authority of hearing and determining causes.” Noah Webster, An American Dictionary of the English Language 732 (1865). But in reference to nations, “jurisdiction” was also defined as the “[p]ower of governing or legislating; the right of making or enforcing laws; the power or right of exercising authority;” and the “limit within which power may be exercised,” or “extent of power or authority.” Id; see also Benjamin Vaughan Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 671 (1879) (defining jurisdiction as “[t]he authority of government; the sway of a sovereign power.”). This ordinary meaning of jurisdiction is consistent with Plaintiffs' interpretation of “subject to the jurisdiction thereof” as subject to the laws and authority of the United States.

 Defendants point to no contrary dictionary definitions that define jurisdiction in terms of allegiance and protection. Indeed, they make no arguments about the ordinary meaning of the Citizenship Clause at all. Defendants' only argument based on the text of the Citizenship Clause is that “subject to the jurisdiction” cannot simply refer to “regulatory jurisdiction,” because that definition would render the Citizenship Clause's requirement of jurisdiction surplusage. They claim that the United States has “exclusive and absolute” regulatory jurisdiction within its territory, so that all children born in the United States are subject to its jurisdiction. Id. They further contend that that definition does not explain why certain groups, such as Native Americans and children of diplomats, were excluded from citizenship.

 Supreme Court precedent makes clear that reading “subject to the jurisdiction thereof” to mean “subject to United States authority and laws” is not redundant. In Wong Kim Ark, the Supreme Court directly addressed the meaning of the phrase “subject to the jurisdiction thereof.” 169 U.S. 649, 18 S.Ct. 456. The Court stated that “[t]he real object of” the dual requirements of birth in U.S. territory and being subject to United States jurisdiction was, “to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases, – children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State, both of which ... had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” Id. at 682, 18 S.Ct. 456.

 The Court in Wong Kim Ark held that these “classes of cases” are not fully subject to United States authority and laws, despite Defendants' contentions to the contrary. The Court, relying on Chief Justice Marshall's opinion in Schooner Exchange, said that while “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute,” there are certain cases “in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction.” Id. at 683–684, 18 S.Ct. 456 (quoting Schooner Exch. v. McFaddon, 11 U.S. 116, 136, 7 Cranch 116, 3 L.Ed. 287 (1812)). When a hostile foreign power occupies United States territory, the Court said that “[t]he sovereignty of the United States over the territory [is], of course, suspended, and the laws of the United States could no longer be rightfully enforced there[.]” Id. at 683, 18 S.Ct. 456 (quoting United States v. Rice, 17 U.S. 246, 254, 4 Wheat. 246, 4 L.Ed. 562 (1819)) (emphasis added). With respect to the immunity of foreign ministers from United States jurisdiction, “the immunity itself is granted by the governing power of the nation to which the minister is deputed.” Id. at 685, 18 S.Ct. 456 (quoting Schooner Exch., 11 U.S. at 138).

The Court contrasted these two groups with private individuals, who it stated cannot be exempt from the jurisdiction of the country that they are in, because,

When private individuals of one nation spread themselves through another as business or caprice may direct ... it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.

Id. at 685–86 (quoting Schooner Exch., 11 U.S. at 144) (emphasis added). The Court's primary concern, in distinguishing private individuals from the exempted groups, was whether they were subject to the laws and enforcement power of the United States. Because the Court in Wong Kim Ark reasoned that the words “subject to the jurisdiction thereof” must be understood “in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange,” the Court must have understood the phrase to refer to the United States's ability to fully subject an individual to its laws. See id. at 687, 18 S.Ct. 456.

 The Court in Elk v. Wilkins similarly exempted members of Indian tribes from citizenship because they were not subject to the full regulatory authority of the United States.² 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643 (1884). While the United States could deal with the Tribes “either through treaties made by the President and Senate, or through acts of Congress in the ordinary forms of legislation,” the Court in Elk recognized that, “[g]eneral acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them.” Id. at 100–01, 5 S.Ct. 41. This statement reflects the unique position of the Tribes, which have sovereignty and are not subject to the full regulatory jurisdiction of the United States. See, e.g., Haaland v. Brackeen, 599 U.S. 255, 310–313, 143 S.Ct. 1609, 216 L.Ed.2d 254 (2023) (Gorsuch, J., concurring) (explaining that the Tribes have inherent sovereignty and are free from state jurisdiction and control).

 Accordingly, the Court in Elk said that members of Tribes were no more subject to the jurisdiction of the United States “than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” 112 U.S. at 102, 5 S.Ct. 41. Regardless, the Court in Wong Kim Ark also held clearly that “[t]he decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not-in the diplomatic service of a foreign country.” 169 U.S. at 682, 18 S.Ct. 456. Because the Supreme Court has made clear that children of diplomats, children of invading armies, and children of tribal members were understood not to be fully subject to United States authority and laws, interpreting jurisdiction in accordance with its ordinary meaning is not redundant.

1. Supreme Court Precedent

The argument that Supreme Court precedent supports Defendants' reading is similarly unavailing. First, Defendants' claimed distinction between political jurisdiction and regulatory jurisdiction is not supported by precedent. Both the Supreme Court and our Court have used “political jurisdiction” to refer merely to the United States' lawmaking authority. See, e.g., Smith v. Turner, 48 U.S. 283, 422, 7 How. 283, 12 L.Ed. 702 (1849) (describing taxation as part of political jurisdiction); Chicago, R.I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 546, 5 S.Ct. 1005, 29 L.Ed. 270 (1885) (describing political jurisdiction as involved in legislative power); Lake v. Ohana Mil. Cmtys., LLC, 14 F.4th 993, 1000–01 (9th Cir. 2021) (equating political jurisdiction with “legislative ... jurisdiction”).

 Second, the Court did not hold or even hint that there was a requirement of “primary allegiance” or exclusive allegiance in either Elk or Wong Kim Ark. To the contrary, the Wong Kim Ark Court repeatedly equated allegiance merely with obedience to the laws of the sovereign, saying that “[a]llegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is ....” See, e.g., id. at 659–661, 18 S.Ct. 456 (quoting Inglis v. Sailors' Snug Harbor, 28 U.S. 99, 155, 3 Pet. 99, 7 L.Ed. 617 (1830)). Under English common law, “[s]uch allegiance and protection were mutual ... and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom.” Id. at 655, 18 S.Ct. 456. Rather than describe this allegiance as primary or exclusive, the Court characterized the allegiance owed by foreign “individuals and merchants” as “temporary and local” which was necessary to avoid “subjecting the laws to continual infraction.” Id. at 685, 18 S.Ct. 456 (quoting Schooner Exch., 11 U.S. at 144). The context of the opinion makes clear that the Court did not view allegiance as a separate and unspoken requirement of jurisdiction. Instead, it considered allegiance to be part and parcel of what Defendants now label “regulatory” jurisdiction.

Third, the proposed requirement of “permanent domicile” in order to establish political jurisdiction also finds no basis in the text of the Citizenship Clause or its interpreting precedent. The Wong Kim Ark Court uses the phrase “permanent” only in connection with domicile once, stating that although Wong Kim Ark's parents left the United States in 1890, they “were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil[e] and residence therein at San Francisco.” Id. at 652, 18 S.Ct. 456. This statement reflects the stipulated facts of the case, and the Court did not mention “permanent” domicile in its interpretation of the Citizenship Clause. See id. at 652, 18 S.Ct. 456 (“The facts of this case, as agreed by the parties are as follows ....”).

 In its analysis, the Court said, “[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.” Id. at 693, 18 S.Ct. 456. But the Court immediately continued:

It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides—seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher's Case in 1851, and since repeated by this court, “independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.”

Id. at 693–94 (quoting 6 Daniel Webster, The Works of Daniel Webster 526 (1851) (emphasis added)). It is clear from this quoted passage both that domicile did not play a significant role in the Court's analysis of the Citizenship Clause's requirements, and that the Court viewed political jurisdiction as equivalent to obedience to the laws.

 The text and ordinary meaning of the Citizenship Clause, as well as Supreme Court precedent interpreting the Citizenship Clause, support the Plaintiffs' interpretation that “subject to the jurisdiction thereof” means “subject to the laws and authority of the United States.” By contrast, Defendants give no analysis of the ordinary meaning of the Citizenship Clause to support their contention that jurisdiction requires primary allegiance and permanent domicile, and the textual links they offer based on the Supreme Court precedent cited above are unavailing.

1. Historical Background

We conclude that the historical background of the Fourteenth Amendment also supports Plaintiffs' interpretation. We look to the historical background of Constitutional Amendments when they codify preexisting rights. See Heller, 554 U.S. at 592, 128 S.Ct. 2783. Although the Fourteenth Amendment extended the right of citizenship regardless of race, the Supreme Court concluded that it reaffirmed “the fundamental principle of citizenship by birth within the dominion.” See Wong Kim Ark, 169 U.S. at 675, 18 S.Ct. 456; see also id. at 688, 18 S.Ct. 456 (stating that the Fourteenth Amendment's Citizenship Clause is “declaratory of existing rights, and affirmative of existing law” and “intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship”).

Birthright citizenship is derived from the English common law principle of jus soli, or citizenship determined by birthplace. James C. Ho., Defining “American” Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 367, 369 (2006); see also Wong Kim Ark, 169 U.S. at 655, 18 S.Ct. 456. As the Court in Wong Kim Ark explained, all children born in England were considered natural-born subjects, whether they were born by subjects or born by those who had taken an oath of allegiance, or whether they were born by non-subjects within the kingdom. Id.

 Before the Fourteenth Amendment was adopted in 1868, the prevailing view was that the United States adopted this idea of citizenship by birth within the territory.³ See, e.g., id. at 658, 18 S.Ct. 456; Lynch v. Clarke, 1 Sand. Ch. 583, 663 (N.Y. Ch. 1844) (“It is impossible to hold that there has been any relaxation from the common law rule of citizenship by means of birth within our territory.”); Gardner v. Ward, 2 Mass. (1 Tyng) 244 (1805) (“I take it, then, to be established, with a few exceptions not requiring our present notice, that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born.”); State v. Manuel, 20 N.C. (3 & 4 Dev. & Bat.) 144, 151 (1838) (“[A]ll free persons born within the State are born citizens of the State.”); Munro v. Merchant, 28 N.Y. 9, 40 (1863) (assuming that plaintiff “born in this state of non-resident alien parents ... is prima facie a citizen”); see also Michael D. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L.J. 405, 410–12 (2020).

 To contend that historical background supports their understanding that jus soli citizenship required primary allegiance, Defendants rely heavily on the international law treatises of Emmerich de Vattel, an 18th-century Swiss jurist. But Vattel's views on citizenship are plainly inconsistent with United States law and do not support Defendants' argument. In Vattel's view, children of foreign permanent residents born within the territory were not full citizens, which is inconsistent with the American conception of birthright citizenship even under Defendants' interpretation. See Emmerich de Vattel, The Law of Nations §§ 213, 214, at 102 (saying that foreigners who are permitted to stay in a country are “a kind of citizens of an inferior order, and are united to the society without participating in all of its advantages,” and because children “follow the condition of their fathers,” the children of permanent residents would not be full citizens) (emphasis added). Vattel recognized that his accounting of citizenship was not the case for all nations, noting, “there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.” Id. § 214, at 102.

 Defendants also cite Justice Story's view that a “reasonable qualification” to birthright citizenship would be to exclude children of foreigners “abiding there for temporary purposes.” Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic § 48 (1834). Although Justice Story may have thought this qualification would be reasonable, he noted that “[i]t would be difficult, however, to assert, that in the present state of public law that such a qualification is universally established.” Id. Accordingly, Defendants cite no compelling historical source asserting that primary allegiance or permanent domicile were required at common law. Instead, the common law understanding of jurisdiction within the sovereign's territory, and the recognized immunities from it, are more consistent with Plaintiffs' interpretation of the Citizenship Clause.

1. Drafting History

“It is dubious to rely on [drafting] history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one.” Heller, 554 U.S. at 589–99, 603–04, 128 S.Ct. 2783. But to the extent that drafting history is relevant here to any degree, we conclude that the drafting history favors Plaintiffs' interpretation.

 When Senator Howard introduced the amendment, he said that the Citizenship Clause “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Although the amendment was a subject of fierce debate, the Senators did not dispute its meaning as it pertained to the children of foreigners. In fact, Senator Cowan criticized the proposed amendment precisely because it would base citizenship on the “mere fact that a man is born in the country.” Id. at 2890–91. He opposed the proposed amendment because it would grant birthright citizenship to the children of noncitizens who he believed “owe [the United States] no allegiance [and] who pretend to owe none.” Id. But even Senator Cowan acknowledged that like “a sojourner,” such groups “ha[ve] a right to the protection of the laws.” Id. at 2890. Senator Conness responded by arguing that given the small number of foreigners and sojourners within the United States, Senator Cowan's policy concern of granting citizenship to these groups would not come to pass. Id. at 2891–92; id. at 2892 (stating that the amendment is a “simple declaration that a score or a few score of human beings born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens”). Thus, the proponents of the amendment did not contend that children of people who owe no allegiance to the United States would not be granted citizenship but instead accepted this consequence. See id. at 2891 (“[C]hildren of all parentage whatever, born in California, should be regarded and treated as citizens of the United States.”).

 Defendants contend that Senator Trumbull, the drafter of the Civil Rights Bill, equated “subject to the jurisdiction of the United States” with “owing allegiance solely to the United States.” Id. at 2893–94. But he did so in the context of the debate over tribal sovereignty, noting that Indian tribes “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States,” because “[i]t is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.” Id. at 2893–94 (emphasis added). The Senators recognized that as “quasi foreign nations,” Indian tribes and tribal members were distinct from other noncitizens. See id. at 2890, 2894–95 (remarks of Senator Howard). And any understanding that the Citizenship Clause required allegiance was most definitely not universal. Senator Cowan opposed the Citizenship Clause because it would extend birthright citizenship to children of “people who ... owe [my state] no allegiance.” Id. at 2891. Senator Trumbull confirmed that the text covers all persons “who are subject to our laws.” Id. at 2893.

 Defendants rely heavily on the Civil Rights Act of 1866 and its legislative history to contend that “subject to the jurisdiction thereof” requires sole loyalty to the United States. But in contrast, we conclude that the legislative history of the Civil Rights Act is not persuasive here. “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.” Heller, 554 U.S. at 590, 128 S.Ct. 2783.

 The Civil Rights Act of 1866 was passed two years before the ratification of the Fourteenth Amendment and conferred citizenship on “all persons born in the United States, and not subject to any foreign power.” Civil Rights Act of 1866, § 1, ch. 31, § 1, 14 Stat. 27, 27 (1866). This language, of course, is not the language that was ultimately adopted in the text of the Fourteenth Amendment. Concluding that the Fourteenth Amendment affirms existing law and does not create new restrictions, the Supreme Court in Wong Kim Ark noted, “any possible doubt ... was removed when the negative words of the Civil Rights Act, ‘not subject to any foreign power,’ gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, ‘subject to the jurisdiction of the United States.’ ” 169 U.S. at 688, 18 S.Ct. 456. The Framers of the Fourteenth Amendment decided not to use the language of the Civil Rights Act of 1866, and “no act or omission of [C]ongress ... can affect citizenship acquired as a birthright, by virtue of the constitution itself, without aid of any legislation.” Id. at 703, 18 S.Ct. 456. Stated another way, the language of Civil Rights Act of 1866 cannot modify the grant of birthright citizenship clearly and explicitly conferred by the Fourteenth Amendment.

1. Public Understanding

Reinforcing our analysis above, we further conclude that the post-ratification public understanding of the Fourteenth Amendment supports the Plaintiffs' interpretation of the Citizenship Clause. “[T]he examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification ... is a critical tool of constitutional interpretation.” Heller, 554 U.S. at 605, 128 S.Ct. 2783.

 As discussed extensively above, the Supreme Court's interpretation of the Citizenship Clause in Wong Kim Ark supports Plaintiffs' interpretation, because the Supreme Court there repeatedly equated jurisdiction with being subject to the laws of the United States. See supra Sections IV.A.1.a, IV.A.1.b. Supreme Court decisions since then have repeatedly reaffirmed that all private noncitizens are subject to the jurisdiction of the United States while within its territory. In Plyler v. Doe, the Supreme Court held that, for the purposes of the Equal Protection Clause, “[u]se of the phrase ‘within its jurisdiction’ ... confirms[ ] the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory,” so the Equal Protection Clause applies to undocumented immigrants. 457 U.S. 202, 215, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Because the Court in Wong Kim Ark stated that persons who are within the jurisdiction of a state for the purposes of the Equal Protection Clause must also be “subject to the jurisdiction” of the nation, 169 U.S. at 696, 18 S.Ct. 456, it follows that Plyler's holding reaffirms that all persons subject to the laws of the states are subject to the jurisdiction of the United States.

 Further, after Wong Kim Ark was decided, the Supreme Court has repeatedly recognized that the children of undocumented immigrants are citizens if born within the territory of the United States. See United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957) (stating that a child born to two illegally present noncitizens was “of course, an American citizen by birth.”); INS v. Errico, 385 U.S. 214, 215, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966) (stating that the child of two noncitizen parents who fraudulently entered the United States “acquired citizenship at birth”); INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (recognizing as United States citizen the child of two noncitizens who were unlawfully present in the country).

 The overwhelming majority of Executive Branch practice also supports Plaintiffs' interpretation. In 1871, the Secretary of State wrote that the Fourteenth Amendment was “simply an affirmance of the common law of England of this country,” and “[t]he qualification, ‘and subject to the jurisdiction thereof,’ was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extra territoriality.” 2 Francis Wharton, A Digest of the International Law of the United States, Ch. 7, § 183, at 394. In 1873, the Secretary of State wrote to the President, “The child born of alien parents in the United States is held to be a citizen thereof and to be subject to duties with regard to this country which do not attach to the father.” Opinions of the Principal Officers of the Executive Departments and Other Papers Relating to Expatriation, Naturalization, and Change of Allegiance 18 (Gov't Printing Office 1873). In 1947, the Board of Immigration Appeals (BIA) concluded that a man born in the United States to Polish parents, who returned to Poland at age three and served in the Polish army, was nevertheless a United States citizen. Matter of S––––, 2 I&N Dec. 908, 909 (BIA 1947). In 1978, the BIA held that a man born on then-United States territory to Mexican parents was born “subject to the jurisdiction” of the United States, without regard for whether his parents intended or were permitted to be domiciled in the United States and despite the fact that “[o]fficials ... were not aware that the [the land] was a part of the county,” and the United States did not actually exercise its jurisdiction over the land. Matter of Cantu, 17 I&N Dec. 190, 193–98 (BIA 1978).

 Perhaps most notably, in 1995 and 1997 the United States Department of Justice Office of Legal Counsel (OLC) directly addressed the constitutionality of legislation that would deny citizenship to children born to parents who were not citizens or permanent residents. OLC reviewed the Citizenship Clause's text, history, and precedent, and concluded, for the same reasons we do today, that such legislation would be “unquestionably” and “flatly” unconstitutional. Legis. Denying Citizenship, 19 Op. O.L.C. at 341; Citizenship Reform Act of 1997 and Voter Eligibility Verification Act: Hearing Before the Subcommittee on Immigration and Claims of the House Committee on the Judiciary, 105th Cong., 1st Sess. 21 (June 25, 1997) (statement of Dawn E. Johnson, Acting Assistant Attorney General, Office of Legal Counsel).

 Defendants cite only a few post-ratification interpretations of the Fourteenth Amendment that Defendants contend support their view. First, they cite a proposed 1874 bill that would have provided that “a child born within the United States of parents who are not citizens and who do not reside within the United States ... shall not be regarded as a citizen thereof.” 2 Cong. Rec. 3279 (1874). The draft bill was never enacted and represents only the view of a single member of a Congress. See City & Cnty. of San Francisco v. USCIS, 944 F.3d 773, 797 (9th Cir. 2019) (stating that legislative history of an unenacted bill is only probative “of the fact that Congress chose not to codify [Defendants'] interpretation”).

 As evidence of Executive Branch practice that they contend is consistent with their interpretation of the Citizenship Clause, Defendants cite two passport denials in 1885 and a Department of Justice report from 1910. But with respect to the passport denials, both Secretaries of State relied on the assumption that a natural-born United States citizen would lose birthright citizenship if their noncitizen parents removed the child from the country while still a minor and the child did not reclaim citizenship as an adult. See 2 Francis Wharton, A Digest of the International Law of the United States, Ch. 7, § 183, at 397; id. at 399–400. The 1910 report presents a different view, but the weight of the evidence is nevertheless in Plaintiffs' favor. Defendants even acknowledge the weight of the evidence, contending that the Executive Order “address[es] the Executive Branch's prior misinterpretation of the Citizenship Clause.” But the fact that most Executive Branch interpretation is contrary to Defendants' interpretation is relevant evidence that Defendants' novel interpretation is incorrect. See Bankamerica Corp. v. United States, 462 U.S. 122, 130, 103 S.Ct. 2266, 76 L.Ed.2d 456 (1983).

 The plain text and ordinary meaning of the Fourteenth Amendment, controlling precedent interpreting the Citizenship Clause, drafting history, and most post-ratification public understanding weigh in favor of Plaintiffs' interpretation of the Citizenship Clause.⁴ For that reason, we conclude that Plaintiffs are likely to succeed on the merits of their claim that the Executive Order violates the Citizenship Clause by denying citizenship to children who are born in the United States and “subject to the jurisdiction thereof.”

2. Immigration and Nationality Act

For the same reasons, Plaintiffs are likely to succeed on the merits of their claim that the Executive Order violates the Immigration and Nationality Act (INA). 8 U.S.C. § 1401(a) provides that “a person born in the United States, and subject to the jurisdiction thereof” is a citizen. Congress made clear when enacting this statute that it was borrowing the statutory language from the Fourteenth Amendment. To Revise and Codify the Nat'y Laws of the United States into a Comprehensive Nat'y Code: Hearings Before the Comm. on Immig. and Naturalization on H.R. 6127 Superseded by H.R. 9980, 76th Cong., 1st Sess., 38 (1940). A statute adopting language from another source generally conveys the original source's well-settled meaning. See, e.g., George v. McDonough, 596 U.S. 740, 746, 142 S.Ct. 1953, 213 L.Ed.2d 265 (2022). And more generally, a statute's language is “interpret[ed] ... in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock v. Clayton County, 590 U.S. 644, 654, 140 S.Ct. 1731, 207 L.Ed.2d 218 (2020). Because we conclude that the meaning of “subject to the jurisdiction thereof” had been settled by the Supreme Court in Wong Kim Ark and had been settled in public understanding at the time that the statute was enacted, see supra Section IV.A.1, we likewise conclude that the Executive Order likely violates the INA. Accordingly, Plaintiffs have shown a strong likelihood of success on the merits both on their Constitutional Fourteenth Amendment claim and on their statutory claim under the INA, satisfying the first prong [1] of the Winter prerequisites to gain an injunction.

CONCLUSION

Article II of the Constitution establishes the scope of presidential powers. See generally U.S. Const. art. II. The President has the power to issue executive orders if they “stem either from an act of Congress or from the Constitution itself,” on matters that fall within that scope established by Article II. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). But one power that the President was not granted, by Article II or by any other source, is the power to modify or change any clause of the United States Constitution. Perhaps the Executive Branch, recognizing that it could not change the Constitution, phrased its Executive Order in terms of a strained and novel interpretation of the Constitution.⁵

 The district court correctly concluded that the Executive Order's proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional. We fully agree. The Defendants' proposed interpretation of the Citizenship Clause relies on a network of inferences that are unmoored from the accepted legal principles of 1868. This runs the risk of “ ‘extrapolat[ing]’ from the Constitution's text and history ‘the values behind [that right], and then ... enforc[ing] its guarantees only to the extent they serve (in the courts' views) those underlying values.’ ” United States v. Rahimi, 602 U.S. 680, 710, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024) (Gorsuch, J., concurring) (quoting Giles v. California, 554 U.S. 353, 375, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008)). We reject this approach because it is contrary to the express language of the Citizenship Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125 years, the legislative history to the extent that should be considered, and because it is contrary to justice.

AFFIRMED

3 Arrested in Crackdown on Multimillion-Dollar ‘Birth Tourism’ Businesses, 1/31/19

Three people who operated multimillion-dollar birth-tourism businesses in Southern California were arrested Thursday in the biggest federal criminal probe ever to target the thriving industry, in which pregnant women come to the United States to give birth so their children will become American citizens.

The businesses coached their clients to deceive United States immigration officials and pay indigent rates at hospitals to deliver their babies, even though many of the clients were wealthy, investigators said. Some Chinese couples were charged as much as $100,000 for a birth-tourism package that included housing, nannies and shopping excursions to Gucci.

A tip sheet for customers, entitled “Strategies to Maximize the Chance of Entry,” recommended stating on a visa application that pregnant mothers intended to stay at the “5-star” hotel, “Trump International Waikiki Beach,” to convince immigration officials that they were well-to-do vacationers, not mothers traveling with the intention of giving birth on American soil, investigators said.

Grand jury indictments unsealed Thursday in Federal District Court in Los Angeles brought the total number of people charged in the schemes to 19, including both business operators and clients. But some of those targeted in the indictments were not presently in the United States, investigators said.

The appeal of bearing an American child, long associated with immigrants who enter the country illegally, has spurred a birth-tourism industry that now caters to people from all over the world.

The industry is growing at a galloping pace, especially among Chinese nationals experiencing uncertainty over their country’s long-term economic prospects, investigators said. The number of businesses in operation is undoubtedly much larger than the three agencies targeted in the latest indictments in the Los Angeles area, said Mark Zito, assistant special agent in charge of Immigration and Customs Enforcement’s Homeland Security Investigations in Los Angeles.

“We are talking about three takedowns in L.A., when there are probably 300,” Mr. Zito said. “We have seen more businesses pop up. It is probably going stronger now than it was in 2015.”

While the agencies charged in the current investigation cater mainly to Chinese parents, Mr. Zito said investigators have also found evidence of Russians heading to the Northeast and Nigerians traveling to Texas for the sole purpose of having American children. The Middle East is also a growing generator of birth tourism, investigators said.

“We are trying to quell this, but it is increasing. Other nations will start taking advantage of this,” Mr. Zito said.

The phenomenon of so-called anchor babies has fueled criticism from advocates of tougher immigration laws who are concerned that foreign adults are using their children to secure permanent residency in the United States and from there, access to public benefits.

The indictments include an array of charges, including visa fraud, wire fraud and identity theft, against owners of the birth-tourism agencies that are accused of enabling thousands of Chinese women to come explicitly to give birth to American children.