Takeaways from the Supreme Court arguments on Trump’s effort to end automatic birthright citizenship
By John Fritze, Tierney Sneed, Devan Cole, CNN
(CNN) — President Donald Trump’s push to end automatic birthright citizenship was met by a suspicious Supreme Court on Wednesday, with liberal and conservative justices raising tough questions about reimagining the way citizenship has been understood in the United States for more than a century.
Over the course of more than two hours, with Trump himself in attendance for roughly 75 minutes, the justices picked away at the arguments raised by the administration’s attorney – Solicitor General D. John Sauer – about whether the framers of the 14th Amendment intended to exclude children born to a wide swath of illegal and legal immigrants from the promise of citizenship by virtue of being born on US soil.
If Trump hoped his presence might influence the justices, it didn’t seem to work.
Should the decision reflect the arguments, it will mark the second major Trump administration policy to fall at the hands of a conservative Supreme Court on which three of nine justices were appointed by the president himself. The court also struck down Trump’s sweeping emergency global tariffs this year.
Here are takeaways from the court’s historic arguments:
Justices were dubious of Trump’s take on history
Chief Justice John Roberts set the tone for the rough arguments for Trump when he asked Sauer how the “quirky” and “idiosyncratic” examples of who everyone agrees was excluded from birthright citizenship could be applied to a much larger class of individuals born on US soil as Trump is arguing now.
Trump and Sauer said the order is intended to end “birth tourism,” but Roberts questioned how the framers of the 14th Amendment could possibly have foreseen their words being used that way given that no such concept existed at the time.
“We’re in a new world now,” Sauer said. Eight billion people, he added, “are one plane ride away from having a child who’s a US citizen.”
“Well, it’s a new world,” Roberts fired back. “It’s the same Constitution.”
Liberal Justice Elena Kagan accused the administration of relying on “pretty obscure sources” to make its arguments. Justice Neil Gorsuch, whom Trump nominated to the court, pressed Sauer on whether Trump’s interpretation of “domicile” – and its supposed application in deciding who qualifies for birthright citizenship – would have made sense in the 19th century when the amendment was framed, especially since the current restrictions on immigration didn’t exist at the time.
Justice Amy Coney Barrett, another Trump appointee, meanwhile, questioned how the administration’s embrace of a theory of a parent’s allegiance would have applied to children of newly freed slaves. Some of those children would have had slave parents who were only recently brought from Africa and thus might still have felt allegiance to the lands from which they were trafficked, she said. How can it be, she asked Sauer, that the amendment applied to all slaves and their children, if the Trump-proposed exceptions around a theory of parents’ allegiance existed?
Sauer suggested that, at the time, slaves were widely understood to have domicile in the United States.
“If you look at the 19th-century sources, what you see is that even though their entry may have been unlawful, 19th-century antebellum law never treated their presence as unlawful,” Sauer said.
Gorsuch, Kavanaugh suggest narrow loss for Trump
Several of the court’s conservatives, including Gorsuch and Brett Kavanaugh, another Trump nominee, suggested the case could be decided without even reaching the broad constitutional arguments the Trump administration is raising. That is because Congress, decades after the 14th Amendment was ratified, passed laws mirroring the Reconstruction-era amendment’s language.
The argument goes like this: By the mid-20th century, Congress understoodthat the 14th Amendment’s citizenship clause was being interpreted to sweep in virtually everyone born in the country. If lawmakers wanted a different interpretation then it wouldn’t make sense for lawmakers to include identical language to the amendment in the law.
“If you’re in Congress in 1940 and 1952 and you want … to eliminate ambiguity, why do you repeat the same language rather than choosing something different,” Kavanaugh asked in a particularly notable exchange during the arguments.
Sauer responded by arguing that Congress was only putting into law a “baseline” for who would be entitled to birthright citizenship, not addressing all of the potential exceptions.
But the back-and-forth on the point was notable because Kavanaugh’s question mirrored a key argument the American Civil Liberties Union was making. If Congress didn’t intend to cover immigrants, the ACLU attorney Cecillia Wang has argued, it would have said so.
Gorsuch, at one point, seemed to agree.
“There was a lot of water over the dam” between the amendment and the law, he said.
Gorsuch seemed, subtly, to offer Sauer to lose the case on the law rather than the Constitution. Such an outcome would still strike down Trump’s order, but it would give the administration an opportunity to try to push through a change in the law. A ruling that says the 14th Amendment barred Trump’s order would have far more permanence.
Sauer seemed to decline the offer for a narrow loss by denying that the court could read a difference between the statute and the Constitution.
“This is a straight-up constitutional ruling you want from this court — win, lose or draw?” Gorsuch asked.
“We think that the statute and the Constitution mean the same thing,” Sauer said. “If the court disagrees, obviously, we’d prefer an adverse ruling – if the court’s going to do that – on a statutory basis (rather) than a constitutional basis.”
Plaintiffs face tough question on ‘domicile’
As Wang, who was arguing for a group of immigrants challenging Trump’s order, began fielding questions from the nine, it became clear that her arguments in defense of the US’ long-held tradition of birthright citizenship faced a less skeptical bench.
“Ask any American what our citizenship rule is and they’ll tell you, everyone born here is a citizen alike,” Wang said during her opening statement.
Still, Wang was nonetheless hit with some difficult inquiries from justices on both ends of the ideological spectrum. They pressed her on the fact that the landmark 19th-century precedent she believes should decide the current case in her favor raises some problems for her position.
One of the government’s leading arguments is that US v. Wong Kim Ark, which granted citizenship to a man of Chinese descent in the 19th century, repeatedly stressed the idea that in order to be entitled to birthright citizenship, a person must intend to permanently live in the country — in other words, to be domiciled.
The Trump administration and the ACLU fought bitterly over whether a domicile requirement applied and who would qualify.
“You dismiss the use of the word of ‘domicile,’” Roberts told Wang. “It appears in the opinion 20 different times.”
“Isn’t it at least something to be concerned about?” he said.
Later, Gorsuch asked what the court should do with the fact that after Wong Kim Ark was decided, the legal community in the country was sharply divided on what being domiciled meant in the context of citizenship. Gorsuch described that disagreement as a “mess.”
“I know you’ve got a lot of good stuff on your side too. But what do we do with the fact that many, many sound legal authorities thought it remained an open question?” he asked.
Even Justice Elena Kagan, a member the court’s liberal wing, asked at one point of the 1898 decision: “What are those 20 domicile words doing there?”
Wang stuck with her contention that those words were not central to the holding in that case and therefore not an issue for today’s court to worry about.
Trump makes history by showing up to arguments
Just weeks after he derided several members of the court – calling those who voted against his global tariffs an “embarrassment to their families” – Trump made history by showing up in person to stare down the justices who hold the fate of his birthright citizenship policy in their hands.
Though presidents have sometimes appeared at the Supreme Court for ceremonies, no sitting president has previously attended an argument, according to the Supreme Court Historical Society.
Trump repeatedly floated that he might attend past arguments, only to back out when the time came. The rules and traditions of the Supreme Court – including that neither cameras nor modern technology are permitted – present logistical hurdles to a presidential visit.
But Trump indicated to reporters on the eve of the arguments that he felt the issue was important enough to come in person. The president complained about the “STUPID” judiciary in a social media post earlier in the week, and he offered a preview of Sauer’s arguments with reporters in the Oval Office.
The president sat in the front row of the public section, an area usually reserved for members of Congress and other special guests. He left at 11:20 a.m. ET, after Sauer’s presentation to the court was over.
“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” Trump posted on social media after leaving the Supreme Court.
Real-world impacts of Trump’s order receive little attention
Most of the debate dealt with history and the meaning of the 14th Amendment. Far less attention was paid to the practical impacts of allowing Trump’s order to take effect.
Over the next 50 years, an average of roughly 255,000 children born in the US every year would start life without US citizenship based on their parents’ status, according to an estimate from the Migration Policy Institute. The order would affect not only immigrants in the country illegally but also people like DACA recipients or those who benefit from other humanitarian programs and who are lawfully present.
Even US citizens would have to jump through additional hoops to verify the citizenship of their newborns.
The justices did not seem particularly concerned about any of those consequences, or at least did not discuss them at length. Only Justice Ketanji Brown Jackson, a member of the court’s liberal wing, grilled Sauer about those practical issues, asking him if pregnant women would need to sit for depositions to attest to their desire to stay in the US permanently.
“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 citizen of the United States under your rule?” Jackson said.
When other justices brought up the mechanics of determining one’s qualification for birthright citizenship, they usually were doing so in the context of teasing out how those mechanics would have played out in the 19th century, as the justices tried to decipher what the framers of the 14th Amendment had in mind.
Barrett said resolving disputes over who would be entitled to citizenship under Trump’s order could be “messy in some applications.”
She specifically asked about “foundlings,” children of unknown parentage or who were abandoned by their parents. Sauer pointed to federal law to suggest they would be covered.
“Yeah, yeah, yeah,” Barrett shot back. “But what about the Constitution?”
“How would you adjudicate these cases?” Barrett continued. “You’re not going to know at the time of birth for some people whether they have the intent to stay or not, including US citizens, by the way.”
Sauer said that practically it wouldn’t be an issue because Trump’s order turns on an “objectively verifiable thing, which is immigration status.”
Every court to consider the legality of Trump’s order has rejected it. In the case at hand, a US District Court in New Hampshire barred enforcement of Trump’s order against any babies who would be impacted by the policy in a class-action lawsuit. Trump appealed the ruling to the Supreme Court before an appeals court had a chance to review the matter.
The Supreme Court is expected to hand down its decision in the case by the end of June.
CNN’s Austin Culpepper contributed to this report.
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