Supreme Court Doubtful of Trump Birthright Citizenship Curbs (1)

The US Supreme Court cast doubt on President Donald Trump’s bid to roll back automatic birthright citizenship, signaling the justices are likely to deal him a fresh rebuke and reject a central plank of his immigration agenda.

With Trump in attendance for part of the arguments Wednesday, justices from across the ideological spectrum questioned whether an executive order he issued hours after his inauguration last year could be squared with the Constitution and federal law. The 14th Amendment has long been understood as guaranteeing citizenship to virtually everyone born on US soil.

Chief Justice John Roberts dismissed contentions by Trump’s top Supreme Court lawyer, Solicitor General D. John Sauer, that the country faced a “new world” in which so-called birth tourism was undercutting the historic understanding.

“Well, it’s a new world,” Roberts said. “It’s the same Constitution.”

Demonstrators outside the US Supreme Court in Washington on April 1.

Photographer: Graeme Sloan/Bloomberg

The case is testing what it means to be an American. Trump’s order would restrict birthright citizenship to babies with at least one parent who is a US citizen or green-card holder, affecting an estimated 250,000 children born to undocumented immigrants and temporary visitors each year.

Although the administration says the order wouldn’t apply retroactively, Democrats say it would also strip millions of current Americans of their citizenship, along with their ability to vote and get passports. The court is scheduled to rule by early July.

Trump arrived in the courtroom shortly before arguments began, sitting in the first row of the public gallery, not far from several justices he recently blasted in personal terms for voting to strike down his global tariffs. Trump joined a group that included Attorney General Pam Bondi and Commerce Secretary Howard Lutnick.

No sitting president had ever attended an argument in recorded Supreme Court history.

Trump left the two-hour, ten-minute session midway, shortly after Sauer sat down and soon after the challengers’ lawyer took the lectern. In a social media post after the argument, he said, “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”

Nearly three dozen countries around the world allow unconditional citizenship at birth to those born on their soil, according to a Library of Congress survey from 2018.

Interpretation Question

The 14th Amendment, ratified in 1868 in the aftermath of the Civil War, guarantees citizenship to anyone who is born in the US and “subject to the jurisdiction thereof.”

Sauer told the justices that the provision applies only to people who have a “direct and immediate allegiance” to the US and have established “domicile” in the country.

Liberal Justice Elena Kagan told Sauer that those concepts are “certainly not what we think of when we think of the word jurisdiction.” She chided him for relying on “obscure sources” to defend his interpretation, including an oration delivered at President Abraham Lincoln’s funeral.

Lower courts have uniformly ruled against Trump, saying the executive order runs afoul of the citizenship clause, as well as federal immigration law and Supreme Court precedent.

The Supreme Court ruled in an 1898 decision known as US v. Wong Kim Ark that the citizenship clause covered a man born in California to two Chinese parents. The 6-2 decision concluded the phrase “subject to the jurisdiction thereof” was written to exclude only a few narrow classes of people, including the children of invaders, foreign ambassadors and Native Americans.

The departure statement of Wong Kim Ark.

Photographer: Universal History Archive/Universal Images Group/Getty Images

Conservative Justice Brett Kavanaugh cited that ruling in questioning whether the executive order was legal under federal statutes enacted in 1940 and 1952. Kavanaugh suggested Congress was endorsing the established broad application of the citizenship clause by using the identical “subject to the jurisdiction thereof” wording.

“One might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be,” Kavanaugh said. “And yet Congress repeats that same language, knowing what the interpretation had been.”

Conservative Justice Amy Coney Barrett and liberal Justice Ketanji Brown Jackson both questioned how Sauer’s concepts could be applied in practice, given they would depend at least in part on how long parents intended to stay in the US.

“What if you have someone who is living in Norway with their husband and family, but is still a US citizen, comes home and has her child here and goes back?” Barrett asked. “How do we know whether the child is a US citizen because the parent didn’t have an intent to stay?”

Sauer said Trump’s executive order wouldn’t require those parents to show they intend to stay in the US. Jackson later asked whether pregnant women would have to be brought in for depositions.

Roberts was one of several conservative justices who asked probing questions of both sides. He said Wong Kim Ark made reference to the “domicile” of the parents in the US 20 times, offering some support for Sauer’s position.

Conservative Justice Neil Gorsuch said that in the aftermath of Wong Kim Ark, some legal commentators said the decision didn’t decide whether domicile was a requirement to get birthright citizenship

“I know you’ve got a lot of good stuff on your side too, but what do we do with the fact that many, many sound legal authorities thought it remained an open question?” Gorsuch asked Cecillia Wang, the American Civil Liberties Union lawyer representing the challengers to the executive order.

Wang also told the justices that the citizenship clause enshrined the rule previously established by American and English “common law.”

“That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy,” she argued.

The case is Trump v. Barbara, 25-365.

(Updates with details on Trump attendance, argument excerpts starting in seventh paragraph.)

--With assistance from Zoe Tillman, Sabrina Willmer and Justin Wise.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Sara Forden

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