Dem
47
GOP
53
With Donald Trump in attendance, at least seven of the folks in black robes seemed skeptical about his executive order on citizenship. Trump's XO would deny citizenship to a child born in the U.S. if neither parent is a U.S. citizen or green card holder. Standing in Trump's way is the Fourteenth Amendment, which grants citizenship to "all persons born or naturalized in the U.S. and subject to the jurisdiction thereof." All parties agree that the language is based on the English common law concept of "jus soli" or "right of soil" that recognized citizenship by virtue of birth in the territory.
The other obstacle is the only Supreme Court case to have definitively addressed the citizenship question under the Fourteenth Amendment. In Wong Kim Ark, the Court held that children born in the U.S. to foreign nationals, even those present unlawfully, are citizens, full stop.
This case is at the Court in an unusual and complicated set of circumstances, involving a series of injunctions and emergency requests from the White House for stays of those injunctions. The upshot is that we're still technically on the shadow docket but the Court at least has the benefit of a merits briefing.
The government's position seems to hinge on an expansive reading of the clause "subject to the jurisdiction thereof." Solicitor General John Sauer argued that phrase requires parents to be "domiciled" in the U.S. and to intend to remain here permanently in order for their U.S.-born children to qualify for citizenship. The Justices seemed understandably hesitant to adopt a rule that seems so unworkable in practice. As Associate Justice Ketanji Brown Jackson asked, "Are pregnant women to be brought in for depositions to determine their intent?" Associate Justice Amy Coney Barrett wondered what to do when a child's parentage is unknown.
In addition to those practical questions, the Justices were also dubious of Sauer's legal arguments. Sauer asserted that Congress' use of the phrase "not subject to any foreign power" in the Civil Rights Act of 1866 means that children of foreign nationals who can be subject to another country's laws don't qualify for birth citizenship. He argued that phrase is analogous to "subject to the jurisdiction thereof," and so must mean the same thing. If so, it would mean that citizenship does not convey to the children of such people, unless they can demonstrate domicile in, and allegiance to, the United States. However, Associate Justice Kavanaugh pointed out that when later statutes amending the CRA were passed, which was after the Wong Kim Ark case, Congress used the same wording as the Fourteenth Amendment. This signals that Congress agreed with the Court's interpretation of that clause, which only recognized a limited number of exceptions: diplomats, Indian tribes, and those in occupied territories. Foreign ambassadors, for example, are not subject to U.S. jurisdiction.
Sauer also made what was essentially a policy argument that the Fourteenth Amendment should be read narrowly to address "birth tourism—people who come to the U.S. simply to give birth so their child is a U.S. citizen." But when he was questioned by Associate Justice Gorsuch as to his evidence of the scope of this alleged problem, Sauer admitted that he had none. And Kavanaugh pushed back that the Court is not called on to address policy, only to interpret the Constitution. On the whole, Sauer was arguing that the president and Congress have the authority to interpret the Fourteenth Amendment to exclude all manner of categories of people from U.S. citizenship based on murky concepts like "domicile" and "allegiance." The Court seemed reluctant to adopt such a stark departure from established law and precedent. Only Associate Justice Samuel Alito seemed fully on board with the president's action.
By contrast, Cecillia Wang, National Legal Director of the ACLU and arguing for the plaintiffs, had an easier time of it. She argued that "domicile" was irrelevant under the English common law on which the Fourteenth Amendment is based, and, thus, precludes a parental domicile requirement for citizenship in the United States. She was questioned on why the word "domicile" appears so often in Wong Kim Ark if it's irrelevant to the holding. She said that the case was presented with certain stipulated facts, including the Wong family's efforts to establish domicile in the U.S. But the holding of the case specifically states that domicile is irrelevant under the plain language of the Amendment. She reminded the court that, historically, children of temporary sojourners were citizens, as were the children of Chinese immigrants who were unwelcome and whom Congress was actively trying to exclude; she also pointed to the children born in Japanese internment camps who are undeniably U.S. citizens.
Alito asked about an Iranian citizen who is subject to mandatory military service and whether their children born here are U.S. citizens. Wang said "yes," and that if the test is whether another country believes a person is also subject to their laws, that would exclude children of all foreign nationals, whether they claimed domicile here or not. She also addressed the question of whether immigration issues were debated at the time the Fourteenth Amendment was passed or whether, as the government argues, it was solely about overturning the Supreme Court's Dred Scott decision to ensure that the children of slaves would secure automatic citizenship. She reminded the Court that some senators were concerned that the amendment would encourage "Gypsies" to come to the country to give birth and that it would cause a "mass flood of Chinese immigrants." One senator responded, "Yes, and I am voting for that because I want children born here to be citizens." Even the Know-Nothing Party, who believed the Irish to be "unassimilable" believed Irish children born here should be citizens. Wang persuasively argued that the framers had an "aversion to inherited rights and disabilities." They specifically rejected the French approach of "jus sanguinis" or "right of blood," where citizenship is determined based on parental ancestry. Instead, they adopted the English common law of "jus soli" to eliminate just such a caste system.
Wang's bottom line was that the narrow exceptions to automatic citizenship by birth are "closed" exceptions. Neither the president nor Congress has the authority to add to that list. Congress can grant citizenship to more people but can't contract those rights. The Fourteenth Amendment is the floor below which the federal government cannot go.
Finally, Justice Kavanaugh asked whether the Court can simply find for the plaintiffs on statutory grounds—that the XO conflicts with the 1952 law—and not get into the Constitutional issues. In a response that drew laughter from the gallery, Wang said simply, "Yes." She then said that they would prefer that the Court put the other issues to rest also and reaffirm Wong Kim Ark, but that they would take the win however they can get it. A decision is expected by the end of June.
On Trump's attendance today, our take is that it looks an awful lot like an attempt to intimidate the Court, and is disrespectful of an independent branch of government. No president has ever attended a Supreme Court oral argument, and that is because they didn't want to give even the appearance of trying to affect the outcome or of having a vested interest in a particular decision. So, it's hard to interpret Trump's attendance as anything but an effort to put his thumb on the scale. This can only backfire. If any of the justices were wavering on this issue, they surely aren't anymore. They will not want to be seen as having caved to overt pressure from the President.
Other outlets seem to largely agree with our assessment of the argument, including Politico and The New York Times. (L)