The Justices Aren’t Buying Trump’s Attack on Birthright Citizenship

The Supreme Court appears ready to reject Donald Trump’s war on birthright citizenship. During oral arguments in Trump v. Barbara on Wednesday, most of the justices—including at least two of the president’s own appointees—ranged from skeptical to hostile toward the government’s case.

Solicitor General John Sauer, arguing for the administration, invoked the purported dangers of birth tourism, at one point, to illustrate the government’s case for limiting citizenship for newborns. “Based on Chinese media reports, there are 500 birth tourism companies in the People’s Republic of China, whose business is to bring people here to give birth and return to that nation,” he claimed, without real evidence.

“Having said all that,” Chief Justice John Roberts asked him, “you do agree that that has no impact on the legal analysis before us?” Sauer countered that the prevailing interpretation of the Fourteenth Amendment’s citizenship clause had consequences that its “nineteenth-century framers” could not have imagined. He suggested that “we live in a world now … where eight billion people are just one plane ride away from having a child who is a U.S. citizen.”

Roberts sounded unmoved. “Well, it’s a new world, but it’s the same Constitution,” he replied. His blunt skepticism confirmed that there was no clear pathway for Trump, who attended the arguments, to obtain five votes in his favor in this particular case—in part because siding with the president would require the conservative justices to fully abandon their devotion to an originalist reading of our founding document.

Wednesday’s case centers an executive order targeting birthright citizenship that Trump signed the day he was inaugurated last year. It instructed executive branch officials to not “issue” documents recognizing U.S. citizenship or “accept” documents from state and local officials in certain cases. The order specifically targeted children born to parents in the United States on temporary visas or as undocumented immigrants.

Federal courts blocked the government from implementing the order almost immediately, with one judge describing it as “blatantly unconstitutional.” The Supreme Court sided with Trump last year to rule that plaintiffs could not seek nationwide injunctions against the administration, but it did not address the merits of his effort to rewrite birthright citizenship.

The Fourteenth Amendment’s citizenship clause is fairly straightforward: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” For more than 150 years after the amendment’s ratification, all three branches of government consistently concluded that it meant what it said. Anyone born on U.S. soil is automatically an American citizen, except for those not “subject to the jurisdiction” of the United States.

What does that exception mean? The amendment’s drafters and nineteenth-century courts identified just a narrow handful of categories that had preceded the amendment’s ratification. Children born to foreign diplomats were excluded because their parents had diplomatic immunity. Members of Native American tribal nations outside U.S. jurisdiction also did not qualify. (Congress erased the latter exception with the Indian Citizenship Act of 1924, after the closure of the frontier.)

In the 1898 case United States v. Wong Kim Ark, the Supreme Court laid out the standard interpretation of the amendment. Federal officials had sought to prevent Wong Kim Ark, who was born in San Francisco to Chinese parents who had later returned to their home country, from entering the United States, under the Chinese Exclusion Act. Since his parents were under U.S. jurisdiction on U.S. soil when he was born, however, the justices concluded that Wong was a natural-born citizen and could not be denied reentry to his native country.

Trump’s order, by contrast, had argued for a much narrower interpretation of the citizenship clause. It claimed that the Fourteenth Amendment had merely meant to overturn Dred Scott v. Sandford and confirm the U.S. citizenship of formerly enslaved people during Reconstruction. While that was the amendment’s principal effect at the time, there is ample historical evidence that its drafters sought to lay down a more expansive rule of citizenship that would cover virtually anyone born on U.S. soil. At the time, the concept of “illegal immigration” also did not exist in federal law.

Trump administration officials later embraced a novel interpretation of the Fourteenth Amendment that was invented by a handful of conservative legal scholars to justify Trump’s order. They claimed that “subject to the jurisdiction” does not actually mean what it says. Instead, they claimed, American citizenship hinges on one’s allegiance to the sovereign of their domicile at birth. This un-American vision would replace the inherent, autonomous citizenship that defines a liberal republican society with one akin to the reciprocal dependencies of medieval European feudalism.

In the American constitutional order, all power flows from citizens to the government, not the other way around. Americans would no longer be true citizens if this heresy prevailed, but mere subjects of a vague and indifferent sovereignty. Fortunately, almost none of the justices on Wednesday seemed eager to embrace this view of American society. Justice Elena Kagan noted that only a scant handful of “pretty obscure sources” supported the citizenship-as-allegiance model, compared to the wealth of sources arguing for the prevailing interpretation.

“I think you point to a Lincoln funeral speech as your primary example of where this principle comes from,” Kagan told Sauer at one point. “It’s certainly not what we think of when we think of the word jurisdiction.” When looking at what “subject to jurisdiction” generally means, she noted, “one doesn’t say, ‘Oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does.’ So the text of the clause does not support you. I think you’re sort of looking for some more technical, esoteric meaning.”

Justice Sonia Sotomayor also pushed back on the government’s bizarre efforts to bootstrap its new interpretation out of a handful of early modern English legal sources, contrary to the genuine laws. “Wong Kim Ark does a wonderful job of laying out the English rule [of nationality],” she noted, “and you claim it was different, but there aren’t any treatises or scholars who say it’s different. English rule was always by birth. Other countries were not by birth.”

The Trump administration also insisted that it was not trying to overrule Wong Kim Ark and that its interpretation was consistent with it, save for some portions that weren’t relevant to the central ruling. Multiple justices were openly skeptical of that tightrope walk. When Sauer mentioned the 1898 ruling at one point, Justice Neil Gorsuch replied, “Well, I’m not sure how much you want to rely on Wong Kim Ark,” implying that the decision did not support his case.

Gorsuch also expressed some scorn at the eclectic citations that Trump and his allies used to build their case, scoffing at one point at the use of “Roman law sources.” He noted that John Marshall Harlan, one of the justices who dissented from Wong Kim Ark, later publicly admitted that he had been wrong. And he forcefully pressed Sauer on how his interpretation would apply to Native Americans, reflecting Gorsuch’s well-known personal interest in tribal sovereignty cases.

Trump’s other appointees were similarly unpersuaded. Justice Amy Coney Barrett rejected the administration’s theory out of hand. “You say that the purpose of the Fourteenth Amendment was to put all slaves on equal footing, newly freed slaves on equal footing, and so they would be citizens,” she told the solicitor general. “But that’s not textual.” Kavanaugh also chided the government for citing the earlier Civil Rights Act of 1866, which extended citizenship to anyone born in the United States and “not subject to any foreign power,” when interpreting the later Fourteenth Amendment.

“Those texts are, on their face, different, and the history that Justice Kagan referred to might have developed quite a bit differently if the Fourteenth Amendment’s text had used the phrase that was in the Civil Rights Act,” he noted. Sauer, apparently thinking he had an ally on the bench, called this an “excellent point” and claimed the two phrasings actually meant the same thing. “Why didn’t they say the same thing?” Kavanaugh asked, with a strong hint of skepticism.

Only two justices appeared to potentially favor the Trump administration’s view. Justice Clarence Thomas’s handful of questions hinged around the administration’s original claim that the citizenship clause only applied to formerly enslaved people, though he did not weigh in on any other aspect of the case. It fell to Justice Samuel Alito to be Trump’s friendliest voice on the high court.

At one point while questioning Sauer, Alito brought up an anecdote from the late Antonin Scalia about kitchen appliances. “He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven, and then afterwards, someone is charged with the crime of stealing a microwave oven,” Alito explained. “And this fellow says, ‘Well, I can’t be convicted under this because the microwave oven didn’t exist at that time.’ And [Scalia] dismissed that. There’s a general rule there, and you apply it to future applications.”

Alito’s point was that the citizenship clause’s narrow range of exceptions at the time it was ratified could later be expanded upon by future generations of presidents, lawmakers, and jurists. “What we’re dealing with here is something that was basically unknown at the time when the Fourteenth Amendment was adopted, which is illegal immigration,” he noted. “So how do we deal with that situation when we have a general rule?”

Sauer, unsurprisingly, said that he “strongly agree[d] with the way that you framed it.” The other conservative justices would likely disagree. What Alito articulated is completely antithetical to originalism. The entire point of originalism is that the Constitution’s text does not evolve or change over time. Instead, its proponents argue that it is fixed by the original public meaning of its provisions when they were enacted or amended.

How the court decides Trump v. Barbara will have existential consequences for millions of living Americans, as well as innumerable generations of Americans who are yet to be born. Alito’s anecdote illustrates the basic dilemma of this case: In order to rule in Trump’s favor, the conservative justices would have to abandon their central ideological and philosophical stance on how to interpret the Constitution. Fortunately, for at least some of the court’s conservative members, this is no real dilemma at all.