Some conservative-leaning justices had hard questions for Solicitor General John Sauer on Wednesday when he argued to reverse nearly 130 years of precedent on birthright citizenship, as President Donald Trump was in attendance.
The case involves Trump’s executive order instructing agencies not to recognize citizenship for U.S.-born children without at least one parent who is an American citizen.
Birthright citizenship is the view that anyone born in the United States—even a child of illegal immigrants—is automatically a U.S. citizen.
Sauer noted during Wednesday’s oral arguments that China has 500 birth tourism companies that bring women to the United States to give birth and return to China with a U.S. citizen.
Chief Justice John Roberts said, “Having said all that, you do agree that has no impact on the legal analysis before us.”
“It’s a new world where 8 billion people are one plane ride away from giving birth to a new U.S. citizen,” Sauer replied.
Roberts said, “Well, it’s a new world, but it’s the same Constitution.”
This case has the potential to overturn a Supreme Court precedent dating back to 1898, when the court upheld birthright citizenship under the 14th Amendment, enacted to grant citizenship to freed slaves after the Civil War.
Trump, the first president in history to attend a Supreme Court argument, reportedly left the building after Sauer concluded his arguments.
After the arguments concluded, Trump wrote in a social media post, “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”
Notably, three Trump-appointed justices asked tough questions of Sauer. Justice Amy Coney Barrett seemed the most skeptical, calling the government’s argument “puzzling” and potentially “messy” to apply.
The disputed provision of the 14th Amendment states, “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.”
The point of contention in the case is the phrase “subject to the jurisdiction thereof,” which the administration has argued was misinterpreted by the court’s late 19th-century ruling.
Sauer noted that the congressional debate over the 14th Amendment referenced that people “domiciled,” or living, in the United States would be citizens, as opposed to children of illegal immigrants or people on temporary visas.
“Domicile is a constitutional standard in all kinds of other situations,” Sauer said.
Barrett followed up, saying, “You’re not going to know at the time of birth for some people whether they intend to stay or not.”
“The executive order turns on objectively verifiable things such as immigration status—such as ‘are you lawfully present, temporarily present?’” Sauer replied.
Justice Neil Gorsuch pressed Sauer about the meaning of “domicile” in 1868—when the 14th Amendment was adopted in a country that had few immigration control laws.
“The test then wouldn’t be the INS; it would be the law of 1868,” Gorsuch said, referring to the former Immigration and Naturalization Service, later absorbed into the Department of Homeland Security.
Sauer also told justices that almost no other country recognizes birthright citizenship.
“The United States’ rule of nearly unrestricted birthright citizenship is an outlier among modern nations,” he said. “Every nation in Europe has a different rule.”
Justice Brett Kavanaugh asked, “Why should we be thinking about the fact European countries don’t have this? I’m not seeing the relevance as a legal, constitutional, interpretive matter.”
Cecillia Wang, the national legal director of the American Civil Liberties Union, argued against Trump’s executive order.
Roberts also pressed Wang about the wording of the 1898 precedent in United States v. Wong Kim Ark that established birthright citizenship. He said the majority opinion mentioned 20 times that Wong’s parents were “domiciled” or had permanent residence in the United States.
He asked Wang, “Do you think you can just dismiss it as irrelevant?”
Wang argued, “Construing the 14th Amendment’s Citizenship Clause, we look to the English common law. That was the rule that applied from the colonial era on, at least for the colonists and for European immigrants.”
The three liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—seemed predictably opposed to the Trump administration.
Jackson asked, “Are we bringing in pregnant women for depositions?”
Sauer replied that the mother’s immigration status will likely be known if her child is born in the United States.
“The executive order turns on lawfulness of status. If you give birth to a baby, it gets the birth certificate,” he said. “The system automatically checks the immigration status of the parents.”
This story is developing and will be updated.
The post ‘New World, Same Constitution’: Justices Seem Hesitant to Overturn Birthright Citizenship appeared first on The Daily Signal.
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