Tom Brenner/AP
After oral arguments on Wednesday, the Supreme Court appears likely to strike down President Donald Trump’s executive order denying birthright citizenship to newborns without a citizen or lawful permanent resident parent. A loss for the administration would be a setback to the president’s project of creating a permanent underclass of mostly racial minorities. The centrality of this radical scheme to Trump’s presidency was underscored by his presence in the courtroom, the first time a sitting president attended Supreme Court oral arguments.
Though there is much to be relieved about after hearing skepticism from most of the justices, the very fact that the court is contemplating revising what it means to be an American citizen is chilling. Even if the government loses—and it almost certainly will—Trump will have moved the goalposts about respectable debate and muddied the clear rules that establish a society of equals. Ultimately, the biggest winner may be Chief Justice John Roberts, whose unpopular court would be able to boast that it reaffirmed the promise of birthright citizenship, accruing legitimacy to an institution that has under his leadership wielded its power to erode American democracy.
The case will likely prove to be an example of Trump going too far, even for this court.
The first sentence of the 14th Amendment is clear: “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.” Drafted by Congress after the Civil War and ratified in 1868, the 14th Amendment put an end to the shameful era of inherited status that defined slavery. In its place, not only would formerly enslaved people and their children be citizens, but so too would the children of all immigrants born on US soil. That way, never again would politicians or judges be able to turn a disfavored group into a permanent underclass. The only exceptions were the children of ambassadors, invading armies, and sovereign Indian tribes—because those newborns would not be subject to American laws in the same way that everyone else is.
The arguments against this plain reading of the text and history are bad arguments; they distort the history and misread the precedent to create a nonsensical rule. To defend Trump’s executive order, Solicitor General John Sauer argued that the meaning of the term “jurisdiction” implies an allegiance that can only be obtained through citizenship or permanent residence, what he called domicile. Sauer’s argument also relied on a misreading of a landmark 1898 case, United States v. Wong Kim Ark, in which the Supreme Court affirmed that the 14th Amendment granted citizenship to anyone born in the United States, and that the understood exceptions were the only ones.
Sauer’s argument ran up against the incredulity of many of the justices. When Sauer cited Wong Kim Ark as evidence that the children of undocumented immigrants couldn’t be citizens, Justice Neil Gorsuch cut him off. “I’m not sure how much you want to rely on Wong Kim Ark,” he cooly said. Gorsuch was also skeptical that there was evidence backing Trump in the congressional record of 1866 debates over the Citizenship Clause. “In none of the debates do we have parents discussed,” he said. “We have the child’s citizenship and the focus of the clause is on the child, not on the parents, and you don’t see domicile mentioned in the debates. The absence is striking.”
Sauer’s points were often at odds with each other, and he attempted both to argue he was right about the original purpose of the Citizenship Clause and to raise modern utilitarian reasons that a broad understanding of birthright citizenship is dangerous. “We’re in a new world now, where eight billion people are one plane ride away from having a child who is a US citizen,” Sauer argued. Roberts was unconvinced. “Well, it’s a new world,” he replied. “It’s the same Constitution.”
The only justice who clearly seemed to have bought Sauer’s chaotic and contradictory arguments was Samuel Alito. Justice Alito seemed convinced that the narrow exceptions to birthright citizenship could be widened if the political branches see fit. And he agreed with Sauer that Wong Kim Ark, because the case was about a person whose parents were domiciled when he was born, only affirmed the citizenship of the children of domiciled immigrants. Alito launched multiple lines of questioning with ACLU legal director Cecilia Wang, who argued against the executive order on behalf of a class of children who would be denied citizenship. But he never landed a blow.
In one remarkable exchange, Alito posited that the ruling in Wong Kim Ark might have mentioned the term “domicile” many times because it was trying to differentiate between the children of domiciled and assimilating Chinese immigrants, like Wong Kim Ark’s parents, against the exploited and disfavored Chinese workers building the transcontinental railroad. These laborers “were overwhelmingly men, there wasn’t an indication that they would stay here, they could stay here, they didn’t have permanent homes,” Alito said. “And the opinion is drawing a distinction between those two categories of people who would have been well understood at the time when Wong Kim Ark was decided.”
Wang began to disagree but was interrupted by Justice Ketanji Brown Jackson, who saw an easy explanation for Alito’s question: that the court emphasized the status of Wong Kim Ark’s parents not to restrict birthright citizenship, but to smooth the public’s acceptance of its ruling at a time of intense anti-Chinese sentiment. “One could imagine that it was important, from a standpoint of helping people accept this citizen rule under these circumstances, to emphasize that these particular people in this case were in Justice Alito’s first category,” Jackson suggested.
In a second exchange with Wang, Alito asked whether the child of an Iranian man born in the United States but still a subject of Iran and expected to serve in the Iranian army, would be a US citizen at birth. “Is he not subject to any foreign power?” Alito asked, using language from the 1866 Civil Rights Act, a precursor to the 14th Amendment. The question seemed like a Fox News talking point, and was not difficult for Wang to answer. “That would have meant that the children of Irish, Italian and other immigrants…would not have been citizens either,” she said. “Because, if the only test is whether that US born child is considered a citizen by another country under their jus sanguinis”—inherited citizenship—“laws, then no foreign nationals’ children” would get birthright citizenship. Alito conceded this point, saying that those children could naturalize if and when their parents did. “Well, in all of those cases, the parents could be naturalized, and then the children would be derivatively naturalized when the parents were naturalized.” It was a shocking statement because it was an acknowledgment that birthright citizenship wouldn’t actually exist under Alito’s and the government’s conception of allegiance. Wang, sensing that Alito had just proved her point, didn’t respond, letting Alito’s words hang in the air.
Though it received little attention during oral arguments, one of the reasons Trump is likely to lose is that the effects of a win would be so enormous. Even though the executive order is constructed to apply prospectively to people born after it was issued, Justice Sonia Sotomayor noted that Trump—or another president, or Congress—could apply it retroactively, putting the citizenship of millions of people in jeopardy. Justice Amy Coney Barrett asked whether the children of people trafficked illegally to the US would be denied citizenship, and Sauer seemed to concede they could be. Sauer also conceded at various points that Congress could adjust the meaning of domicile, and therefore who is eligible for birthright citizenship at a given time. Other times, he seemed to suggest that one could appeal a denial of citizenship to a newborn if the parents intended to stay in the country. Either way, he promised to replace a clear, workable rule with a chaotic and ever-changing definition of citizenship.
The Roberts Court has gone out of its way to greenlight most of Trump’s second term agenda. They have repeatedly rescued his illegal and unconstitutional policies from lower court orders blocking his actions. Only in a small number of cases has the majority contradicted him, including striking down many of Trump’s tariffs. This case will likely prove another example of Trump going too far even for this court. If Trump’s presence on Wednesday was meant to intimidate the justices, this time it didn’t appear to work.
