Supreme Court justices, with Donald Trump breaking historical precedent by attending oral arguments, tackled the legality of his executive order to restrict birthright citizenship in the U.S., a contentious part of his administration’s immigration approach.
The justices heard arguments in the Trump administration’s appeal of a lower court’s decision that blocked his executive order directing U.S. agencies not to recognize the citizenship of children born in the United States if neither parent is an American citizen or legal permanent resident.
Some of the justices, conservatives and liberals alike, grilled the Justice Department lawyer defending Trump’s action, then posed hard questions to the attorney arguing for the plaintiffs who challenged the directive.
Solicitor General John Sauer, representing the administration, opened the arguments by saying that “unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations.” The U.S. — along with Canada — is among about three-dozen countries, nearly all in the Americas, considered to have unconditional birthright citizenship, according to the Global Citizenship Observatory research project at European University Institute’s Robert Schuman Centre for Advanced Studies.
“It demeans the priceless and profound gift of American citizenship,” Sauer said. “It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws but also jump in front of those who follow the rules.”
Trump’s directive on the very first day of his second term as president resulted in class-action lawsuits from parents and children whose citizenship would likely be threatened. The executive order, a lower court in New Hampshire found, violated citizenship language in the U.S. Constitution’s 14th Amendment, as well as a federal law codifying birthright citizenship rights.
Trump 1st president to attend arguments
The administration has said that granting citizenship to virtually anyone born on U.S. soil has created incentives for illegal immigration and led to “birth tourism,” by which foreigners travel to the United States to give birth and secure citizenship for their children.
Trump, wearing a red tie and dark suit, sat in the front row of the public gallery of the ornate courtroom after arriving by motorcade from the White House. He left not long after Sauer completed his presentation for the U.S. government, and his presence was not publicly acknowledged by the justices.
Trump became the first sitting president to attend an oral argument at the Supreme Court, according to Clare Cushman, the resident historian at the Supreme Court Historical Society.
Trump in his second term has lambasted judges and even conservative justices Neil Gorsuch and Amy Coney Barrett, calling them “an embarrassment to their families” after a recent top court ruling on tariffs went against the administration.
Chief Justice John Roberts, meanwhile, has on at least two occasions since last year rebuked personal attacks on judges, at a time when threats to the judiciary are on the rise.
Groups of demonstrators gathered outside the courthouse, some holding anti-Trump signs reading “Trump must go now,” “hands off birthright citizenship” and “Don’t let Trump change the Constitution, don’t give him more power.”
‘It’s a new world, it’s the same constitution’
The 14th Amendment has long been interpreted as guaranteeing citizenship for babies born in the United States, with only narrow exceptions such as the children of foreign diplomats or members of an enemy occupying force.
The provision at issue, known as the Citizenship Clause, states: “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.”
Roberts told Sauer that his arguments, that would limit who qualifies for citizenship at birth based on the 14th Amendment language “subject to the jurisdiction thereof,” seemed “quirky.”
The 14th Amendment was ratified in 1868 in the aftermath of the Civil War that ended slavery in the United States, overturning a notorious Supreme Court decision from a decade earlier that had declared that people of African descent could never be U.S. citizens.
When Sauer suggested times have changed greatly, with millions more able to access the U.S. by plane, Roberts countered, “It’s a new world, it’s the same constitution.”
Conservative Justice Brett Kavanaugh, meanwhile, questioned the relevance of the Justice Department’s decision to cite the laws of foreign countries.
“I guess I’m not seeing the relevance as a legal, constitutional interpretive matter, necessarily, although I understand it’s a very good point as a policy,” he told Sauer.
The administration has asserted that the phrase “subject to the jurisdiction thereof” means that being born in the United States is not enough for citizenship. Citizenship is granted only to the children of those whose “primary allegiance” is to the United States, and that allegiance is established through a “lawful domicile.”
Conservative Justice Amy Coney Barrett suggested to Sauer that that would provide a less-than-straightforward definition.
“What if you have someone who is living in Norway with their husband and family, but is still a U.S. citizen, comes home and has her child here and goes back? How do we know whether the child is a U.S. citizen because the parent didn’t have an intent to stay?” she said.
New precedent could have far-ranging affects
American Civil Liberties Union attorney Cecillia Wang, arguing for the challengers, told the justices that Trump’s order was unlawful.
Wang said there are only limited exceptions to this “otherwise universal rule,” and that disturbing this widely understood view of the Constitution would wreak havoc.
“The 14th Amendment’s fixed, bright-line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable and it prevents manipulation,” Wang said.
With the exception of Justice Samuel Alito, she was not questioned as extensively as Sauer to justify some of her legal contentions.
The nonpartisan Migration Policy Institute has argued that repealing birthright citizenship would “significantly swell the size” of the population in the U.S. that is considered unauthorized, while leaving an average of about 255,000 children per year born on U.S. soil without citizenship.
Critics have expressed concern that Trump’s executive order could pave the way for the administration to pursue more onerous or even retroactive restrictions. In one of several so-called “friend of the court” briefs, dozens of municipal and local officials from across the U.S. argue that the order would create “stateless” children subject to stigma and discrimination, and whose access to basic services and health care would be compromised
Front Burner29:59The end of birthright citizenship?
Sauer insisted that Trump’s order would apply “only prospectively” and not retroactively. But Justice Sonia Sotomayor pointed to historical incidents of the U.S. moving to denaturalize Native Americans after court rulings. She said under Sauer’s argument, a future president could try to strip citizenship from U.S.-born children years from now.
The Supreme Court is expected to issue its opinion by the end of June.
The court, which has a 6-3 conservative majority, has backed Trump on other major immigration-related policies since he returned to the presidency. It let Trump expand mass deportation measures on an interim basis while legal challenges play out, such as ending humanitarian protections for migrants or allowing them to be deported to countries where they have no ties.
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