The conservative justices on Wednesday were, at times, appropriately skeptical of the Trump administration’s patched-together attempt to undermine birthright citizenship, a bedrock of American life for well over a century.
That they treated his theory as legitimate at all is a sign of how amenable they are to President Trump’s whims, given that his argument directly contradicts Supreme Court precedent and subsequent congressional action.
Still, all but Justice Samuel Alito seemed to find it tough to swallow a new conception of citizenship that would exclude the children of undocumented immigrants and temporary visitors based on their insufficient loyalty to the United States and lack of a “domicile” in its borders. The administration claims that these groups are not “subject to the jurisdiction” of the United States, and therefore are not included in the 14th Amendment’s Citizenship Clause.
“You obviously put a lot of weight on ‘subject to the jurisdiction thereof,’ but the examples you give to support that strike me as very quirky: children of ambassadors, children of enemies during a hostile invasion, children on warships,” Chief Justice John Roberts said to Solicitor General John Sauer. “Then you expand it to a whole class of illegal aliens here in the country — I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”
Roberts also pressed on Sauer’s contention that “birth tourism” — foreign nationals traveling to the United States just to give birth and get their babies citizenship — is a massive problem. When he asked Sauer how common an occurrence this actually is, Sauer responded that “no one knows for sure” but that it might be on the order of millions.
Justice Amy Coney Barrett — who occasionally used Trump arguments to press ACLU legal director Cecillia Wang, the attorney arguing against the president’s order — questioned Sauer about how the children of slaves, forced into the United States against their will and retaining “allegiance” to the countries they came from, could be citizens under this theory. It’s “not textual,” she pointed out, though it was clearly the effect of the 14th Amendment’s passage.
In an early quip, Justice Neil Gorsuch laid bare the difficulty of Trump’s argument: “I’m not sure how much you want to rely on Wong Kim Ark,” he warned Sauer. United States v. Wong Kim Ark is the landmark 19th century case establishing that children of foreign nationals born in the United States are American citizens.
“I think Mr. Sauer acknowledged — and you mentioned this in your opening — that if we agree with you on how to read Wong Kim Ark, then you win,” Justice Brett Kavanaugh said to Wang. “If we did agree with you on Wong Kim Ark, that could be just a short opinion.”
“Yes,” Wang replied succinctly, prompting laughter in the courtroom.
The conservatives didn’t poke holes in Trump’s theory the whole time; some seemed to at least lend credence to the idea that the word “domicile” is all over the Wong Kim Ark ruling and, therefore, must have some bearing on the earlier Court’s read of the 14th Amendment. Barrett and Gorsuch seemed troubled by the 14th Amendment’s exception for Native Americans, arguing that the quasi-jurisdiction, led by a lack of “allegiance” to the United States, sounds a lot like what Trump is proposing.
Alito, in classic form, seemed to completely embrace Trump’s theory. He bemoaned the modern era’s “unenthusiastic” immigration enforcement, and questioned whether the Framers intended more exceptions to the Citizenship Clause to crop up in the years and decades after it was written.
“What we’re dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration,” he said.
Justice Clarence Thomas was harder to read, opening with arguments against Trump’s theory, but echoing government points later.
Towards the end of the two-hour argument, some of which Trump listened to in person, Wang got an opportunity to articulate why it’s so difficult for even this Court to do the president’s bidding on birthright citizenship.
She described how, at the time birthright citizenship was being debated, the country had been through a couple decades during which powerful factions vehemently opposed Irish immigration — but, she observed, even then, its most vociferously anti-immigrant voices acknowledged that the American-born children of Irish immigrants were citizens.
“Contrary to the government’s arguments now, they wanted to grow this country,” she said. “They wanted to make sure we had a citizenry to populate the military, to settle the country. And they also had an intuition that was consistent with the founding aversion to inherited rights and disabilities.”
Hard disagree that they shouldn’t have taken it. Sometimes, they’ve just got to go in and cut out the tumor, lest it metastasize and get out of control. This is one of those cases.
Been reading Without Precedent by Lisa Graves, a book that unmasks the smiling, genial John Roberts to reveal his lifelong persistence in subverting the constitution and destroying democracy as we have known it. It’s a damning account that shows just how evil this grinning creep really is.
When he asked Sauer how common an occurrence this actually is, Sauer responded that “no one knows for sure” but that it might be on the order of millions.
Of course the Justices could as just one person familiar with “birth tourism” and that would be Trump. Ask him how many pregnant Russian women reside in Trump Tower and his other properties.
Tiny piece of trivia:
I had to look it up but Wong and Wang are not two romanizations of the same word – Wong Kim Ark was 黄金德 (in pinyin Huang Jinde) while Cecillia Wang is 王德棻 (in pinyin Wang Defen) – they both have 德 “virtue” in their given names, though.