The U.S. Supreme Court heard oral arguments Wednesday in a case that could dramatically test the limits of citizenship in America and reshape immigration policy.
At issue was President Trump’s executive order that ended automatic citizenship for U.S.-born children of parents living in the country illegally. In a historic first, the president attended the first part of the hearing as the named party sued by approximately 20 states.
Trump watched as his attorney general, John Sauer, presented a credible and defensible argument that the 14th Amendment was never intended to grant universal citizenship to the offspring of those who broke the law by coming here fraudulently or illegally.
SCOTUS REVISES TRUMP EXECUTIVE ORDER ON BIRTH RIGHT CITIZENSHIP
Sauer was an impressive advocate with a masterful command of law and history. However, he faced a degree of skepticism from a majority on the court, suggesting that Trump’s executive order may ultimately be rescinded.
Admittedly, predicting an outcome based solely on verbal arguments can be like reading tea leaves. The dynamics could change behind closed doors and upon further consultation. But it cannot be overlooked that even conservative justices asked probing questions during the hearing that seemed to express their doubts.
ACLU attorney Cecillia Wang argued in defense of broad birthright citizenship. She too was confronted with challenging questions, albeit in a much more conciliatory tone that seemed to betray the final outcome.
As expected, much of the discourse focused on the 14th Amendment, which was ratified in 1868, three years after the end of the Civil War. The central objective was to grant citizenship to formerly enslaved people and their children:
TRUMP SAYS HE WILL ATTEND SUPREME COURT ORAL ARGUMENTS ON BIRTH RIGHT CITIZENSHIP CHALLENGE
“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 in which they reside.”
But what did the framers mean when they inserted the phrase “subject to the jurisdiction thereof”? These five words took up much of the discussion in the Supreme Court on Wednesday.
Showing his knowledge of the 1866 debate, Sauer referred back in time to the amendment’s sponsors, who explained that it implied complete allegiance to the U.S. and “owed no allegiance to any foreign power.”
The attorney general argued that illegally present aliens are not “subject to the jurisdiction” of the U.S. because they presumptively maintain political allegiance to another sovereign as citizens of that foreign power. Simply setting foot on American soil does not necessarily signify loyalty or otherwise subject an individual to absolute jurisdiction.
The Supreme Court in Washington, December 17, 2024. (AP Photo/J. Scott Applewhite, file)
Sauer quoted Senator Lyman Trumbull, a driving force behind the 14th Amendment, who specifically stated that the Citizenship Clause does not cover individuals who are still subject to any foreign power or “owe loyalty to anyone else.”
His colleague, Senator Jacob Howard, further defined the boundaries of citizenship, stating that “this obviously does not apply to persons born in the United States who are foreigners or aliens…”
However, the justices seemed unmoved by the idea that citizenship should not apply to the children of people who have broken the law and are not allowed to be in the US.
The justices extensively revisited an important precedent in the 1898 decision in United States v. Wong Kim Ark (169 US 649), involving a US-born son. But his parents, originally from China, were here legally and permanently resident. They did not avoid the law. At the time, the Supreme Court’s decision hinged on this striking fact.
Nevertheless, the judges expressed reservations about the fact that the Ark This case could be used as a primary basis for excluding the citizenship of the descendants of unlawfully present parents who are subject to deportation.
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For at least a century, our government has granted citizenship based on a perception of the 14th Amendment that Sauer described as “a longstanding misconception.” Over the years, the authors’ original intent and the crucial context of the congressional debate had been forgotten. No one who helped draft the amendment has argued that citizenship should be given to children of illegal immigrants.
Yet the current case may be one of those where an established norm or accepted practice, compounded by the complexity of reversing course, poses too great an obstacle. Judge Amy Coney Barrett questioned how an endless series of cases would be tried if the court were to uphold Trump’s order. Yet another judge raised the thorny issue of a humanitarian dilemma.
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A decision is expected before the end of the Supreme Court’s current term in June. If Trump does not prevail, there is still an opportunity for redress. Congress always has the option to set explicit parameters through legislation by redefining birthright citizenship.
But given the chronic stagnation that continues on Capitol Hill, no one should be optimistic that this can happen anytime soon.
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