Justices Express Skepticism Over Birthright Citizenship Case They Never Should Have Taken in the First Place
Conservative justices on Wednesday were rightly skeptical of the Trump administration’s DIY attempt to undermine the birthright, a bedrock of American life for more than a century.
The fact that they considered his theory legitimate shows how receptive they are to President Trump’s whims, given that his argument directly contradicts Supreme Court precedent and subsequent Congressional actions.
Yet all except Justice Samuel Alito seemed to have difficulty accepting a new conception of citizenship that would exclude the children of undocumented immigrants and temporary visitors because of their insufficient loyalty to the United States and lack of “home” on its borders. The administration asserts that these groups are not “subject to the jurisdiction” of the United States and therefore are not included in the citizenship clause of the 14th Amendment.
“You obviously place a lot of emphasis on the phrase ‘subject to its jurisdiction,’ but the examples you give in support of it seem very bizarre to me: children of ambassadors, children of enemies during a hostile invasion, children on warships,” Chief Justice John Roberts told Solicitor General John Sauer. “Then you expand it to an entire class of illegal aliens here in the country — I’m not really sure how you can reach this large group from such tiny, idiosyncratic examples.”
Roberts also pressed Sauer’s assertion that “birth tourism” — foreign nationals traveling to the United States just to give birth and obtain citizenship for their baby — is a major problem. When he asked Sauer how common this was, Sauer responded that “no one knows for sure”, but that it could be of the order of millions.
Judge Amy Coney Barrett — who has at times used Trump’s arguments to pressure ACLU legal director Cecillia Wang, the lawyer arguing against the president’s order — questioned Sauer about how the children of slaves, forced into the United States against their will and maintaining “allegiance” to the countries from which they came, could be citizens under this theory. It’s “not textual,” she emphasized, although that was clearly the effect of the 14th Amendment passage.
In an opening joke, Justice Neil Gorsuch highlighted the difficulty of Trump’s argument: “I don’t know to what extent you want to rely on Wong Kim Arch“, he warned Sauer. United States v. Wong Kim Ark is a landmark 19th century case establishing that children of foreign nationals born in the United States are U.S. citizens.
“I think Mr. Sauer recognized – and you mentioned this in your introduction – that if we agree with you on how to read Wong Kim Archthen you win,” Justice Brett Kavanaugh told Wang. “If we agreed with you on Wong Kim Archthis could just be a brief notice.
“Yes,” Wang responded succinctly, drawing laughter from the courtroom.
Conservatives haven’t been picking holes in Trump’s theory this whole time; some seemed at least to lend credence to the idea that the word “home” is everywhere in the world. Wong Kim Arch decision and, therefore, must have some bearing on the Court’s prior reading of the 14th Amendment. Barrett and Gorsuch seemed troubled by the 14th Amendment exception for Native Americans, arguing that quasi-jurisdiction, driven by a lack of “allegiance” to the United States, looks a lot like what Trump is proposing.
Alito, in his classic form, seemed to completely buy into the Trump theory. He lamented the modern era’s “half-hearted” immigration enforcement and questioned whether the framers intended for more exceptions to the Citizenship Clause to emerge in the years and decades since it was written.
“What we’re talking about here is something that was basically unknown at the time the 14th Amendment was passed, which is illegal immigration,” he said.
Justice Clarence Thomas was harder to read, starting with arguments against Trump’s theory but echoing the government’s points later.
Near the end of the two-hour proceedings, some of which Trump listened to in person, Wang had the opportunity to explain why it is so difficult, even for this Court, to carry out the President’s orders on birthright citizenship.
She described how, at the time birthright was being debated, the country had gone through two decades in which powerful factions vehemently opposed Irish immigration — but, she observed, even then its most vocal anti-immigration voices recognized that U.S.-born children of Irish immigrants were citizens.
“Contrary to the government’s current arguments, they wanted to develop this country,” she said. “They wanted to make sure we had citizens to populate the army and colonize the country. And they also had an intuition that was consistent with the founding aversion to inherited rights and disabilities.”
