SCOTUS asks pointed questions as fate of Trump’s birthright citizenship order hangs in the balance

The Supreme Court heard oral arguments on Wednesday in the case challenging President Donald Trump’s executive order to end birthright citizenship.

Trump made history by being the first sitting president to attend a SCOTUS hearing. He attended for over an hour, departing shortly after the solicitor general, John Sauer, concluded his arguments.

‘Why put it in if it’s irrelevant?’

Shortly after noon on Wednesday, Trump wrote in a post on social media, “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”

Sauer previously claimed that lower-court rulings finding Trump’s executive order unconstitutional were overly broad and incorrectly held that “birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law.”

During Wednesday’s arguments, Sauer contended that the 14th Amendment phrase “subject to the jurisdiction thereof” requires parents of a child to be domiciled in the U.S. and have allegiance to it.

He explained that the citizenship clause was enacted after the Civil War to grant citizenship to freed slaves and their children whose allegiance to the U.S. “had been established by generations of domicile here.”

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“It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance. This conclusion reflects the original public meaning of the clause,” he stated.

Supreme Court Chief Justice John Roberts called Sauer’s argument “very quirky.”

“Well, starting with that theory, you obviously put a lot of weight on ‘subject to the jurisdiction thereof,'” Roberts stated. “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,” Roberts continued. “And then you expand it to a whole class of, illegal aliens are 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.”

Sauer argued that birthright citizenship has generated “a sprawling industry of birth tourism,” adding that “uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States.”

American Civil Liberties Union legal director Cecillia Wang argued before SCOTUS against Trump’s executive order.

Wang was pressed about U.S. v. Wong Kim Ark, an 1898 Supreme Court case in which the court ruled that a child born in the U.S. to Chinese citizen parents was an American citizen. While the ruling set the precedent for anyone born in the U.S., Ark’s parents were both legally domiciled in the U.S.

“Thirty years after ratification, this court held that the 14th Amendment embodies the English common law rule,” Wang stated during Wednesday’s hearing. “Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.”

“The majority tells us six times in the opinion that domicile is irrelevant under common law,” Wang added.

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Justice Samuel Alito pushed back on Wang’s arguments, stating that he “might agree” with her “if ‘domicile’ had simply been sprinkled in the opinion,” though it appeared 20 times.

“Why put it in if it’s irrelevant?” Alito asked Wang.

“The first is that, again, it was a stipulated fact,” Wang responded. “The second is that regardless of what the judgment in the case was … the rule of decision in Wong Kim Ark has binding precedential effect. Even if you think that Wong Kim Ark decided the case based on the stipulated facts, you have to follow that controlling rule of decision. And if you follow that rule, you get to the same result.”

Justice Elena Kagan appeared to share Alito’s concern, stating, “What are those 20 ‘domicile’ words doing there? You can take some of them and say, ‘I don’t know; they were just summarizing the facts of the case,’ but not all of them.”

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