WASHINGTON — The Supreme Court appears to have significant concerns regarding the Trump administration’s approach to limiting birthright citizenship.
On the first day of his presidency, Donald Trump faced a legal challenge right after signing an executive order aimed at ending citizenship guarantees for children of undocumented immigrants and those on temporary visas. This event marked the first time a sitting president attended oral arguments at the Supreme Court.
From a prominent seat in the courtroom, Trump observed as the justices engaged with Attorney General John Sauer over the interpretation of the 14th Amendment’s citizenship clause. This clause ensures that all persons born in the U.S. and “subject to its jurisdiction” are citizens, including children of slaves.
“It’s a new world,” said Chief Justice John Roberts to Sauer, adding, “It’s the same constitution.”
During discussions, the justices questioned the validity of the government’s assertion that a child can only be a citizen if their parent is considered a “resident.” The administration’s argument suggests that temporary visitors and undocumented immigrants do not possess sufficient loyalty or ties to the U.S. to be deemed under its “jurisdiction.”
Justice Brett Kavanaugh pointed out that while comparing U.S. laws with those of other nations may inform policy, the court’s role is to interpret American law based on its own history: “Why do we have to think… Hey, European countries don’t have this?”
This case marks the second attempt by the Trump administration to defend its executive order in court. Previously, when the administration appealed a district court decision that blocked the order, it sought consideration from the Supreme Court on a “universal injunction,” which was ultimately upheld in a separate case, United States v. CASA. This could potentially stretch the authority of federal courts.
Following the striking down of President Trump’s tariffs earlier in the year, he expressed displeasure with two of his appointees who sided with the ruling, stating beforehand that “stupid judges and justices don’t make great countries.”
About an hour and twenty minutes into the arguments, Trump quietly exited the courtroom shortly after Sauer concluded his presentation. Several of his administration officials, including Commerce Secretary Howard Lutnick and Attorney General Pam Bondi, had joined him for the discussions.
New world meets old law
Justice Samuel Alito noted the peculiarity of the situation, stating that typically, someone who is arrested and deported would not be able to establish a domicile. Yet, due to ineffective immigration laws, many individuals, despite their status, feel they are making permanent homes in the U.S., which creates a humanitarian dilemma.
Justice Elena Kagan described the government’s stance as “historical revisionist,” arguing that it relies on obscure references that do not adequately back up their position.
Chief Justice Roberts echoed these sentiments, labeling some of the examples presented by the government as “outlandish,” pointing to previous exceptions to birthright citizenship, which included diplomats and children of enemy combatants.
The concept of birthright citizenship, or ‘jus soli’, originates from British common law. Some defend the notion that the Supreme Court relied on this tradition in the 1898 case United States v. Wong Kim Ark, which established that children born to resident aliens are citizens. However, the government claims that the framers of the Fourteenth Amendment did not intend to continue this practice.
Sauer pointed out that Wong Kim Ark’s parents were legal residents yet faced barriers due to the Chinese Exclusion Act. “I don’t know how much you want to rely on Wong Kim Ark,” Justice Gorsuch remarked, suggesting that the lawsuit may not bolster the administration’s case.
The justices also probed into the recurring mention of “address” during discussions, with Roberts questioning its significance: “Isn’t it at least concerning that it’s been discussed 20 times and plays a significant role in opinion?”
Wang, representing the ACLU, emphasized that the decision wouldn’t be complete without considering the rules around common law, stating that domicile was irrelevant under English common law.
Alito argued that the language in the Civil Rights Act of 1866 could be clearer in understanding the obligations of children born to undocumented parents, bringing up the military obligations that children of Iranian fathers must still fulfill.
At one point, Kavanaugh proposed that if the justices could agree on how to interpret Wong Kim Ark, the outcome might favor Wang and be summarized in a brief ruling. “So even if we agree with you…it might just be a short opinion, right?”
