during oral arguments on Wednesday, the Supreme Court expressed significant concerns with the Trump administration’s attempt to replace it with its own preferred interpretation.
President Trump’s Department of Justice resurrected a legal theory which was relegated to the legal fringes after its defeat in the Wong Kim Ark case over 100 years ago. Specifically, the Trump administration argues that to be “subject to the jurisdiction” means to be within the full “political” jurisdiction of a nation. Thus, in their view, the babies of undocumented immigrants and any lawfully present immigrants without green cards are not entitled to birthright citizenship, because their parents’ presence in the country is either temporary or banned.
During oral arguments, the government, represented by Solicitor General John Sauer, claimed that the drafters of the 14th Amendment sought only to offer birthright citizenship to children of enslaved people who for years had been denied citizenship under the pre-Civil War Dred Scott decision, in which the Supreme Court held that children of enslaved people born in the United States were not citizens by birth.
Sauer argued that the drafters of the 14th Amendment deliberately steered the United States away from the prevailing common-law rules of birthright citizenship that pre-dated the Dred Scott decision and instead aimed to limit birthright citizenship only to those whose parents were legally “domiciled” in the United States.
Domicile is a legal term; generally, it refers to someone’s intent to live somewhere permanently. Sauer argued that people living in the United States with nonimmigrant visas and undocumented immigrants who are in violation of civil immigration laws cannot legally become “domiciled” because their long-term presence is restricted by law, and therefore, their children should not acquire citizenship at birth in the United States.
This position was met with pushback, including from the more conservative justices. Chief Justice Roberts, the second justice to weigh in, suggested that the Trump administration’s arguments were “quirky,” and that the exceptions they were trying to carve out didn’t seem to follow from the exceptions that the Supreme Court acknowledged in Wong Kim Ark. When Sauer later argued that modern policy reasons like “birth tourism” justified a restriction on birthright citizenship, Roberts quipped, “It’s a new world, [but] it’s the same Constitution.”
Throughout his time at the lectern, Sauer also faced skepticism from Justice Gorsuch, who said that it was “striking” to him how infrequently the concepts of allegiance and domicile — the keys to Sauer’s arguments — were discussed during the congressional debates around the 14th Amendment. Gorsuch later drew attention to a lecture by Justice Marshall Harlan — years after he dissented in Wong Kim Ark — in which he expressly said that the court’s ruling in the case covered temporary visitors to the United States.
While most of the debate focused on the Trump administration’s claim that parents had to be “domiciled” for their children to acquire citizenship at birth, justices also pressed the government on the practical ramifications. Justice Barrett asked how babies dropped off at hospitals without any knowledge of who their parents are would be covered under the government’s rule, and seemed unsatisfied with the government’s response that the baby would be a citizen thanks to a law passed by Congress, asking “Yeah, but what about the Constitution?” Justice Jackson also asked Sauer to explain how it would be determined at birth whether a child was a citizen or not, with Sauer responding that Social Security systems would make a first determination and if any parent believed a mistake was made, they could sue.
Only Justice Alito seemed to openly support the government’s position, pushing Cecillia Wang of the ACLU on the fact that the Wong Kim Ark decision mentions domicile over 20 times. In response, Wang argued that this was limited to the facts of the case. Justice Jackson also pointed out that the repeated references to Wong’s parents as having been domiciled in the country may have been an effort by the justices to assuage fears of many Americans at the time who held anti-Chinese attitudes and believed no Chinese person could ever assimilate.
While the justices asked tough questions of both sides, more of them appeared skeptical of the government’s position. Justice Kavanaugh opined that he might agree as a policy matter that children of undocumented immigrants should not be birthright citizens, but also noted that other countries’ practices don’t directly impact U.S. law, and agreed that if the Court were to accept the traditional understanding of Wong Kim Ark — in line with the general principle of letting precedent stand — then “this is a short opinion.” (That line got a laugh from the audience.)
. If there's one thing the left hates it's unfettered joy.
