Even this Supreme Court seems unwilling to end birthright citizenship

If you’ve been worried that this Supreme Court might give President Donald Trump the power to strip citizenship away from Americans, you can go ahead and exhale.

On Wednesday, the Supreme Court heard oral arguments in Trump v. Barbara, a case challenging an executive order Trump issued on his first day back in office, which purports to strip citizenship from children born to undocumented immigrants and from many people who are lawfully present in the United States but who are not yet authorized to remain here permanently.

There is no plausible argument that Trump’s executive order is constitutional. The Constitution’s Fourteenth Amendment provides that “all persons” born in the United States are citizens, with one narrow exception that does not apply in Barbara. Just three days after the executive order was issued, a Reagan-appointed federal judge blocked it — after saying that he’s “been on the bench for over four decades” and that he “can’t remember another case where the question presented is as clear as this one is.” 

Trump’s order has never taken effect thanks to lower court orders against it. Many of those orders relied on United States v. Wong Kim Ark (1898), a Supreme Court case that rejected a similar effort to restrict who can be a citizen of the United States nearly 130 years ago.

Still, Trump no doubt bet that this Court — which has a 6-3 Republican supermajority that previously ruled that Trump is allowed to use the powers of the presidency to commit crimes — would ignore both the text of the Constitution and Wong Kim Ark and decide the Barbara case based solely on their partisan loyalty to him.

Wednesday’s oral argument, however, left little doubt that Trump made a bad bet. Of the nine justices, only Justice Samuel Alito, the Court’s most reliable partisan for Republican Party causes, appeared to be a certain vote for Trump — although Justice Clarence Thomas asked ambiguous questions and might join Alito in dissent. That leaves seven justices who appear to believe that Trump cannot simply wipe away the Fourteenth Amendment’s text with an executive order.

Trump’s legal arguments in Barbara are risible

The Barbara case turns on the meaning of a single word — “jurisdiction” — which appears in the first sentence of the Fourteenth Amendment: “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.”

Someone is “subject to the jurisdiction” of a nation if they are bound by its laws. So, if Trump were correct that some children of immigrants are not subject to US jurisdiction, it would mean that the federal government was powerless to deport them — even if they were in this country illegally. It would also mean that the United States was powerless to arrest them if they robbed a bank.

As the Court explained many years ago in Wong Kim Ark, there are, in fact, some newborns who are born in the United States but not subject to its jurisdiction. When the Fourteenth Amendment was ratified, the most significant exemption to the birthright citizenship rule applied to citizens of American Indian tribes who were born on tribal lands — because those lands were considered a separate nation from the United States. But, in 1924, Congress granted citizenship to all Indigenous people born in the US. 

Today, the Fourteenth Amendment’s “subject to the jurisdiction” rule primarily excludes the children of foreign ambassadors and similar foreign officials from US citizenship, because the families of diplomats often enjoy diplomatic immunity from US law.

Trump’s attempt to expand this “subject to the jurisdiction” exception to include children of undocumented immigrants and people here on a temporary basis received a cold reception from nearly all of the justices. After US Solicitor General John Sauer tried to argue that Wong Kim Ark actually supports Trump’s position, for example, Justice Neil Gorsuch quipped back, “I’m not sure how much you want to rely on Wong Kim Ark.”

Similarly, after Sauer claimed that we live in a new world where pregnant foreign nationals allegedly enter the United States to ensure that their child will be a US citizen, Chief Justice John Roberts responded that “It’s a new world; it’s the same Constitution.”

Justice Brett Kavanaugh, meanwhile, asked several questions suggesting that he’d already decided to rule against Trump and was merely trying to decide what the legal basis for that decision should be. At one point, he asked Cecillia Wang, the ACLU lawyer defending birthright citizenship, whether the Court should rule against Trump based on a 20th century statute that also protects birthright citizenship. At another point, he noted that Trump’s lawyers don’t actually ask the Court to overrule Wong Kim Ark, so he suggested that the Court could issue a very short opinion affirming the lower courts and citing that 1898 case.

For her part, Justice Amy Coney Barrett offered a clever hypothetical exposing a contradiction in Sauer’s legal argument. Sauer argued that the children of immigrants who are not “domiciled” in the United States — meaning that they did not intend to remain here indefinitely — are not citizens. But Sauer also concedes that the Fourteenth Amendment was intended to extend citizenship to enslaved people freed during the Civil War.

So, Barrett asked about an enslaved person who was brought to the United States against their will, who always viewed themselves as a captive, and who never intended to remain in the US. Under Sauer’s “domicile” rule, she pointed out, this person could not be a citizen even though Sauer concedes that the Fourteenth Amendment does give citizenship to freed slaves.

These four Republican justices, along with the Court’s three Democrats, appear likely to reaffirm Wong Kim Ark and to declare Trump’s executive order unconstitutional. It appears that it is still possible for Trump to do something that is so clearly illegal that even this Supreme Court will rule against him.