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Washington — The Supreme Court on Wednesday appeared skeptical of President Trump’s bid to end birthright citizenship, hearing arguments in a high-stakes case that tests one of the pillars of the president’s immigration agenda.
A majority of justices seemed open to rejecting Mr. Trump’s executive order, with several conservatives peppering the attorney arguing for the administration with questions about the legal underpinnings and practical applications of the directive.
Mr. Trump attended a portion of the arguments, the first time a sitting president has done so. He was accompanied by White House counsel David Warrington. Attorney General Pam Bondi also attended.
Following the session, Mr. Trump wrote on Truth Social: “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”
For more than 100 years, the 14th Amendment’s Citizenship Clause has been understood to mean that nearly everyone born in the U.S. is automatically granted citizenship. The clause says that “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.”
But the president’s order, issued soon after he took office, embraced a narrower view, and seeks to deny citizenship to children born to parents who are in the country illegally or temporarily. The order has been blocked by lower courts, which have found it likely illegal, and has not taken effect.
The question before the Supreme Court in the case, known as Trump v. Barbara, is whether the executive order complies with the 14th Amendment and an immigration law from 1952 that codified the language of the Citizenship Clause.
The administration’s argument
Solicitor General D. John Sauer presented the case on behalf of the administration, asserting that unrestricted birthright citizenship “demeans the priceless and profound gift of American citizenship.” His argument hinged on the phrase “subject to the jurisdiction thereof” in the Citizenship Clause.
Sauer said that the phrase was understood in the 19th century to mean those who are “domiciled” in the U.S., meaning those who are “lawfully present and have an intent to remain permanently.” He said that the amendment has been misconstrued for decades to apply to almost all babies born in the U.S.
The solicitor general said an 1898 Supreme Court case known as Wong Kim Ark supports his theory. In that case, the justices ruled that Wong, who was born in the U.S. to Chinese parents, was an American citizen. The court cited the parents’ “domicile” in the U.S. more than 20 times in its opinion. Sauer said the ruling was evidence that lawful permanent residence was seen as a prerequisite for citizenship.
“We agree there’s a principle there in the 14th Amendment. It is that ‘jurisdiction’ means ‘allegiance,’ the allegiance of a — and this is very strongly reflected in 19th-century sources — the allegiance of an alien present in another country is determined by domicile,” he said.
Chief Justice John Roberts questioned his interpretation of the amendment, saying it relies on “very quirky” examples of exceptions and broadens them to include millions of people in the country illegally.
“You obviously put a lot of weight on ‘subject to the jurisdiction thereof,’ but the examples you give to support that strike me as very quirky. You know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to the whole class of illegal aliens who are here in the country,” Roberts said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”
Justice Elena Kagan told Sauer that “the text of the clause, I think, does not support you.”
“I think you’re sort of looking for some more technical, esoteric meaning. And then the question becomes, ‘OK, if the text doesn’t support you, if there’s a real history of people using it that way,’ but as far as I can tell, at the time of the 14th — you’re using some pretty obscure sources to get to this concept,” she said.
Justice Neil Gorsuch raised practical questions about Sauer’s position, asking who would decide whether a person in the U.S. has established “domicile.”
“How are we going to determine domicile? I mean, would we use contemporary sources on what qualifies as domicile in a state, or do we look in 1868? And do we have to do this for every single person?” he asked.
Justice Amy Coney Barrett questioned why the framers of the 14th Amendment didn’t express that they were seeking a more narrow citizenship rule, as Sauer claimed.
“If they were going to invent an entirely new kind of citizenship, like an American brand, why wouldn’t we have seen more discussion of that in the debates? she asked.
She also pressed Sauer on how his definition of “domicile” would apply to certain people, specifically the children of individuals illegally trafficked into the country or those whose parents are unknown, and said some applications of the executive order may be “messy.”
“The thing about this is, then you have to adjudicate, if you’re looking at parents and if you’re looking at parents’ domicile, then you have to adjudicate with residence and intent to stay,” Barrett said. “What if you don’t know who the parents are?”
Justice Samuel Alito, meanwhile, asked Sauer about the scope of his argument as it relates to undocumented immigrants. He noted that the nation was in an “unusual situation” because federal immigration laws have been “ineffectively and, in some instances, unenthusiastically enforced” by the government.
“So there are people who are subject to removal at any time if they are apprehended and they go through the proper procedures, but they have, in their minds, made a permanent home here, and have established roots,” he said. “And that raises a humanitarian problem.”
Justice Ketanji Brown Jackson likewise raised practical questions about what would happen if Mr. Trump’s order is allowed to go into effect.
“How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?” she asked.
The Trump administration has said that the executive order is prospective, and it directs federal agencies not to issue or accept citizenship documents for children born more than 30 days after it takes effect. But opponents of the measure have warned that if the president prevails, the citizenship of generations of Americans born to parents in the country illegally or temporarily could be called into question.
“The logic of your position, if accepted, is that this president or the next president or a Congress or someone else could decide that it shouldn’t be prospective,” Justice Sonia Sotomayor said. “There would be nothing limiting that, according to your theory.”
Roberts asked Sauer about the prevalence of “birth tourism,” in which parents travel to the U.S. to give birth so their child will have citizenship. The Trump administration has argued that birthright citizenship has spawned a birth tourism industry, and Sauer said that while no one knows for sure how prevalent the practice is, there are 500 birth tourism companies in China.
Still, Roberts responded, “you do agree that that has no impact on the legal analysis before us” and noted that the practice was not an issue in the 19th century. Sauer said it was evidence of the negative impacts of the prevailing interpretation of the Citizenship Clause: “We’re in a new world now … where 8 billion people are one plane ride away from having a child who is a U.S. citizen.”
“Well, it’s a new world. It’s the same Constitution,” Roberts replied.
The challengers’ argument
Cecilia Wang, the legal director of the American Civil Liberties Union, argued on behalf of those challenging the president’s order, three parents with children who would be impacted by the directive. Wang warned that a ruling in the administration’s favor would have vast repercussions.
“Swaths of American laws would be rendered senseless. Thousands of American babies will immediately lose their citizenship, and if you credit the government’s theory, the citizenship of millions of Americans past, present and future could be called into question,” she said. “All of this tells us the government’s theory is wrong.”
The justices mostly focused on the court’s reasoning in Wong Kim Ark in their questioning of Wang, asking her why the court would reference Wong’s parents’ “domicile” so often in its 1898 opinion if it had no bearing on whether a child is entitled to citizenship.
“Why put ‘domicile’ in? Sometimes it’s hard to figure out what is the holding of the case here. He tells us this is the holding of the case. Why put ‘domicile’ in there?” Alito asked. “Why put it in if it’s irrelevant?”
Wang argued that the concept of “domicile” was not part of the court’s reasoning in the case.
“You have to follow that controlling rule of decision, and if you follow that rule, you get the same result for people without domicile,” she said. “Wong Kim Ark says six times in the first parts of the opinion, as well as on the page the government focuses on, that domicile is not relevant.”
Kavanaugh hinted that Wang’s side would prevail if the justices agreed with her reading of Wong Kim Ark.
“I think Mr. Sauer acknowledged that, and you mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, then you win. So if we did agree with you on Wong Kim Ark, that could be just a short opinion, right? That says, ‘The better reading is respondents’ reading, government doesn’t ask us to overrule, affirmed,'” Kavanaugh said.
“Yes,” Wang said to laughter. “I do think it would be prudent for the court to reaffirm its decision in Wong Kim Ark … but of course, we’re happy to take a win on any ground.”
If the Supreme Court invalidates Mr. Trump’s executive order, it could do so on both statutory and constitutional grounds. The justices could rule that the measure violates the Immigration and Nationality Act, which Congress enacted in 1952, more than 50 years after the high court’s decision in Wong Kim Ark.
During an earlier exchange with Sauer, Kavanaugh questioned why Congress would adopt the language of the Citizenship Clause in that law if it wanted to limit the scope of Wong Kim Ark or eliminate any ambiguity over who is entitled to U.S. citizenship.
“Given Wong Kim Ark, 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, and yet Congress repeats that same language, knowing what the interpretation had been,” he said. “So how are we to think about that?”
A decision from the Supreme Court is expected by late June or early July.
