“As the Supreme Court ponders the legality of restrictions President Trump is attempting to impose on “birthright citizenship” in the United States (expect a decision the day the justices leave town for the summer), one unique royal birth at an Ottawa hospital in the depths of World War II offers an exception to the jus soli laws in our neighbor to the north, which mirror our own. The question is whether it could be replicated in this country should the High Court not rule in the administration’s favor.

…Would It Work Here?

The question is whether a similar scheme could be replicated in this country to limit birthright citizenship to the newborn children of U.S. citizens and lawful permanent residents by declaring any place children are born of other parents as “extra-territorial”.

Legally, it’s a longshot, but keep in mind that: (1) when King George issued his proclamation, nobody knew where Princess Juliana would give birth, and thus extraterritoriality followed her wherever she went before giving birth; (2) that proclamation was issued and effective under the same common law principles the Court relied on in Wong; and (3) it is a precedent, albeit a unique and foreign one.

As for the first — and key — point, consider the following question from Justice Barrett during the oral argument in Trump v. Barbara, the pending birthright citizenship case, to the attorney opposing the president’s EO on the accepted principle that there’s an exception to U.S. birthright citizenship for the children of diplomats:

[I]f you look at the diplomatic exception almost like diplomats and their children have little bubbles around them, like the embassy is really the territory of that country, and even when they’re traveling around, they’re all not subject to the jurisdiction by virtue of this territorial fiction, are those just applications of the rule?

Princess Juliana wasn’t subject to a diplomatic exception (she was a refugee, not a diplomat), but the king’s proclamation created a “bubble” around the heir-apparent wherever she went up to the time of Princess Margriet’s birth in much the same way as the diplomatic bubble described by Justice Barrett applies.

Here, in part, is how counsel responded to the question: “So the thing that all of the exceptions have in common, again, is this sense that the — the person is — has this fiction of extraterritorial — extraterritoriality around them.

If the accepted exceptions to birthright citizenship (the former one for Indians, and the current ones for children of diplomats, and children born in zones of enemy occupation and on foreign ships) have a “fiction of extraterritoriality around them”, what impact would an actual presidential declaration of “extra-territoriality” have

To ask that question is to answer it, but it begs a second question: Can the president, acting on his own, declare parts of the United States to be “extraterritorial” for the brief moments that children of those who are not citizens or green card holders are born there?

Does a 1942 proclamation by the British monarch, issued to avoid a potential succession crisis in the Dutch royal house, offer a precedent an American president could follow to bar the children of aliens here illegally and/or temporarily from automatically receiving U.S. citizenship? It’s a question the White House may want to ask, assuming the Supreme Court gives him bad news on its way out of town.”