The Supreme Court on Wednesday pressed lawyers for the Trump administration and the ACLU on so-called “birthright citizenship” protections in the U.S., part of a landmark court challenge that could upend more than a century of legal precedent and executive branch policy.
In Trump v. Barbara, justices are weighing the legality of the executive order Trump signed on his first day back in office. The order in question seeks to end automatic citizenship — or “birthright citizenship” — for nearly all persons born in the U.S. to undocumented parents, or to parents with temporary non-immigrant visas in the U.S.
As oral arguments kicked off, justices appeared somewhat skeptical of the Trump administration’s arguments, including its view of the 14th Amendment, and pressed the Trump administration’s lawyer, U.S. Solicitor General D. John Sauer, on the administration’s reading of the citizenship clause.
Chief Justice John Roberts told Sauer that he viewed one of the key arguments made by the Trump administration in its case as “quirky.”
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“You obviously put a lot of weight on [the] ‘subject to the jurisdiction thereof’ issue,” Roberts told Sauer. He noted the administration cited “children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a whole class of illegal aliens 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.”
Justices Amy Coney Barrett and Neil Gorsuch also expressed skepticism during early questions and pressed Sauer on key issues of precedent, enforcement, and the text of the citizenship clause itself.
“We’re in a new world now,” Sauer said, noting that “some 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”
“It’s a new world, but it’s the same constitution,” Roberts said in response.
As expected, arguments focused heavily on precedent set in the 1898 Supreme Court case, United States v. Wong Kim Ark, which established birthright citizenship protections for persons “domiciled,” or born on U.S. soil.
Justice Brett Kavanaugh also appeared skeptical of the administration’s argument. He noted that Congress adopted the 1952 Immigration and Nationality Act (INA), which essentially mirrors the text of the 14th Amendment.
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Kavanaugh pointed to the INA and the precedent in Wong Kim Ark, noting: “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.”
“I am not seeing the relevance as a legal constitutional interpretative matter,” he told Sauer, after a brief back-and-forth.
Justice Samuel Alito, for his part, appeared the most open to Trump’s argument.
He noted that the case brings to the forefront key questions on whether laws should be read as being limited only to situations lawmakers had in mind at the time of passage, or whether they should be applicable in future situations, even if unimaginable at the time.
“Scalia had an example that dealt with this situation,” Alito said, referring to the late Supreme Court Justice Antonin Scalia.
“He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven,” Alito said. “And then afterwards, someone is charged with the crime of stealing a microwave oven. And this fellow says, ‘Well, I can’t be convicted under this, because the microwave oven didn’t exist at that time.’”
“There’s a general rule there, and you apply it to future applications,” Alito said, to which Sauer emphatically agreed.
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Trump’s executive order was immediately met with a flurry of federal lawsuits last year, and to date, no U.S. court has sided with the administration on the issue.
Trump himself attended Supreme Court oral arguments, making him the first sitting U.S. president to do so. Other administration officials, including Attorney General Pam Bondi, were also in the audience.
A ruling in Trump’s favor would represent a seismic shift for immigration policy in the U.S., and would upend long-held notions of citizenship that Trump and his allies argue are misguided.
It would also yield immediate, operational consequences for infants born in the U.S., putting the impetus on Congress and the Trump administration to immediately act to clarify their status.
A decision from the high court is expected by late June.
