The Supreme Court Takes On Birthright Citizenship

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Help us keep a pulse on culture by subscribing and why times.com/subscribed. Can I ask you a couple of questions? Did you sleep here last night? Yes, we did. We did.

We got here at about 11.30 pm and got some sleep until maybe 6 a.m. How early did you get here? 6.30. I've got here a little bit after 4. So we have been in the line from last Sunday.

Sorry, you've been waiting in line since last Sunday. Yeah, yeah, last Sunday. From New York Times, I'm Michael Babardo. This is a daily. On Wednesday morning in Washington, the scene outside of the Supreme Court captured the

enormous stakes of the case that was about to be argued before its nine justices. This is pivotal. This will define the immigration experience for decades. Birthright citizenship has just been a big part of what it means to be American for a very long time, like almost as long as the country. The crux of this is illegals or those of you temporarily should receive the benefit

of American citizenship, which is to be cherished. A case about President Trump's efforts to end birthright citizenship that literally asks who gets to be an American. So this case was very important for me because I'm an immigrant too. We all came for the reason because you as a shining city on the hills.

And now to change the whole thing.

“I'm like, did I make a right decision of wanting to come here?”

In a case so historic that President Trump himself showed up in the courtroom to hear the arguments. Today, my colleague Ann Marimo takes us inside the room. It's Thursday, April 2nd. And you had a pretty coveted seat inside the Supreme Court on Wednesday morning. And I suspect your eyes quickly fix themselves on the presence of President Trump.

Yes, it was a historic day. The first sitting president to be in the Supreme Court courtroom for an oral argument and to be sitting there as the justices were debating birthright citizenship. And what did it look like for him to enter that August room? So a hush came over the courtroom as the president was escorted to his seat.

The courtroom is always quiet, but this was even more quiet than usual.

As he walked in at that moment wearing a red tie and a dark suit and took his seat. And it's really interesting where he was seated instead of being close to the justices in the special seats reserved for their families and visiting dignitaries. He was seated in the front row for the public.

“Why? I think it's because he is one of the parties in the cases.”

And he's not a lawyer or member of the Supreme Court bar. So there he was in the front row of the public gallery. Just far enough away, perhaps, for some of the justices, like it feels difficult to overstate the symbolic potency of the head of the executive branch being in this room in the heart of the judicial branch.

And as you know, well, this is a president known for very keenly understanding power and how you flex it. And it felt to me anyway.

Like the president by showing up for these oral arguments on this case was basically saying,

you all want to sit in judgment of my executive order on birthright citizenship. And therefore, I'm going to sit in judgment of you as you do that. There's absolutely a lot of symbolism having him there. He had mused about showing up previously when the court took up his tariffs plan.

“That was also very important to the president. He ended up not coming and saying you didn't want to be a distraction.”

But you're right. There's been this effort as you've seen when the court has ruled against him. The president has tried to intimidate the justices and criticize them and really harsh personal terms. So to have him actually there in person face to face with the justices sent a real signal. And above all, the signal was this case is really important to the president and to his second term agenda, especially immigration just because he reminded us how this case found its way into this room.

And say it does not include the children of illegal immigrants or the children of many temporary foreign visitors.

“That was seen as an open challenge to the long held understanding of the 14th Amendment.”

And there were lawsuits filed immediately by democratic state attorney generals and expected parents. Right. Basically saying the 14th Amendment guarantees that anyone born with very few exceptions on American soil is an American citizen. Yes. And not just in the 14th Amendment, but in subsequent court rulings and actions by past presidents. This has been the common subtle law understanding.

Right. And so we always understood that the administration's legal arguments in defense of this executive order were going to be potentially tough sledding before the entire judiciary.

“So take us into these oral arguments and how they unfold and let's start with the administration's lawyer.”

They're argument this morning in case 25365 Trump versus Barbara general sour. Mr. Chief Justice and may it please the court. President Trump solicitor general John Sauer who represents the administration at the Supreme Court is asking the justices to reinterpret or restore what he says is the original meaning of the 14th Amendment. The citizenship clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children. To keep point to the administration's argument centered on the language of the 14th Amendment and the meaning of a phrase subject to the jurisdiction of the language of the 14th Amendment says that all persons born or naturalized in the United States and subject to the jurisdiction there of our citizens of the United States.

For this court recognize that subject to the jurisdiction means owing direct and immediate allegiance. The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens.

John Sauer is trying to get the justices to focus on, again, the meaning of subject to the jurisdiction of is in his view.

The babies of illegal immigrants are not subject to the jurisdiction of the United States and are therefore not citizens. Every structured birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. And why, according to Sauer, the president's social general is that the case that children born to illegal immigrants are not subject to the jurisdiction there of of the United States government and therefore not eligible to be American citizens when they're born on American soil.

So the administration's argument really rests on one of the court's rulings in 1898 and this is the case of Wong Kim Ark. There the court ruled that a man born in San Francisco but to Chinese immigrants was a citizen and John Sauer says we've been thinking about that case all wrong.

“It's been read to broadly to apply to a larger group of people and really he says the key in that decision is the word domicile and the fact that Mr. Wong's parents were legally present in the United States even though they were not citizens.”

They had a commitment to living in the U.S. and for that reason when their son was born in San Francisco, he was a citizen. The court says at the very beginning of its opinion here are the accepted facts. These are lawfully domiciled here when it states the question presented it talks about domicile. When it recites the legal principle of page 693 it says domicile three times and it page 705 at the end of the opinion says here's the single question we've decided. We've decided that Chinese immigrants with a permanent domicile and residents here are followed in the rule of birth rights citizenship and so throughout the argument John Sauer asked the justices to focus on that word and saying that that's key to someone being able to become birth rights citizen.

And just to find that word domicile because having watched these oral arguments myself not in the room but at home it comes up a lot. It did come up a lot and the solicitor general told the justices domicile to him and in the law means somebody's residents but also their intention to stay and make a home and having the ability legally to be able to be domiciled somewhere. And in his telling undocumented immigrants by definition cannot be legally domiciled in the United States because they are here illegally.

Because they've come into the country illegally but also he brings in another term and that is allegiance because they sort of have a political allegiance to a foreign nation. It did not grants citizenship to the children of temporary visitors or illegal aliens who have no such allegiance.

So basically, Sauer is arguing that if you look really closely, especially at that arc case issued by the Supreme Court many, many, many decades ago, people have been misunderstanding this birth right citizenship precedent for a very long time and they've allowed it to be applied to broadly to people who should not be birth right citizens illegal immigrants, especially.

“That's right. Okay. So how do the justices respond to this argument?”

So don't Sauer got a lot of pushback pretty quickly including from some of the key conservative justices who are often in the majority.

Most notably from Chief Justice Roberts. You've 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 to refer to the government's theory as quirky. Never a great sign. Exactly. So the Chief Justice pointed out that the 14th Amendment includes very specific exceptions to groups of people who are not subject to the jurisdiction of the United States and therefore not citizens.

“You know, children of ambassadors, children of enemies during a hostile invasion, children on warships.”

And then you expand it to the 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. And he's asking John Sauer, you're asking us to create this huge new exception and to expand that understanding. Right. Roberts seems to be saying, you want us to get from the concept that invading villagers of the US. There are kids should not be American citizens to suddenly saying that all the children of undocumented immigrants shouldn't be given birthright citizenship. And he just doesn't quite see the line between the two.

Yes, and Sauer's response is to go back to the debates around the drafting of the 14th Amendment and even to a statute that existed before the amendment and to pull out various statements from senators at the time. The strongest statements of this is Senator Trumble statement that I quoted in the beginning or he says, there he's asked what does that mean, some of the jurisdiction there. And he says, it means not going allegiance to anybody else, that is what it means. And to try to reinforce this idea that in order to be a birthright citizen, your parents had to have complete allegiance to what he called the political jurisdiction of the United States.

This is the sort of general, new his audience that this conservative majority on this court likes originalism likes to go back to original sources and that he was appealing to that background. Sure, that's going to be key to this decision, what was the original meaning, what were the draftors thinking of the time. And there was a lot of discussion about how do you apply that history and the text to this modern day issue of illegal immigration that the draftors were not necessarily thinking about in these terms at that time.

And 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.

So how do we deal with that situation when we have a general rule? Right, just as a leader pipes up at this point, and he's curious how the government's argument confronts that.

“Right, and he asks about the idea of applying a broad principle to a new problem, and the solicitor general says, that's right, this broad principle does apply here, and that's what we often do.”

We're interpreting the constitution, and he has all of these historical examples that he cites to sort of back up this claim in the way that he thinks the principle has been applied over time. Now the problem of temporary visitors did exist, and it's very interesting that as you look at pages 26 and 28 of our brief commentators going from, you know, 1881 until 1922 are uniformly saying that children of temporary visitors are not included. And just as Kagan intervenes and says, wait a minute. Where does this principle come from, allegiance, domicile, allegiance, I think you point to a link in funeral speech as you are primary example of where this principle comes from.

It's certainly, these are really obscure, esoteric references you're making to history and kind of pulling them out of the air. And as far as I can tell, you know, at the time of the 14, you're using some pretty obscure sources to get to this concept. And she really cast out on those strong evidence. Right, she's saying, I'm listening to all your historical references, and they feel like you're really stretching and reaching because you don't have text within the 14th amendment on your side.

And just a circle back to Justice Kagan's point. It's striking that in none of the debates do we have parents discussed, we have the child's citizenship and the focus of clauses on the child, not on the parents. And you don't see domicile mentioned in the debates. That's the absence of striking.

“And Gorsuch asked questions about this word, domicile and says if that's so critical to your argument, where is that in the debates surrounding the drafting of the 14th amendment?”

Where is that in the history? What was the understanding of that word at the time? And what is that response? Well, he says that there are 19th century sources that talk about domicile, but really returns to one Kim Ark and the language in that opinion.

I would first cite one Kim Ark on that point because one Kim Ark says you're well, I'm not sure how much you want to rely on one Kim Ark.

But that state, there is a statement in there that says so long as they are permitted to be here. And Gorsuch goes so far as to suggest that the solicitor general not rely on the decision in one Kim Ark that was taken as a broad affirmation of birthright citizenship. This exchange really does seem to capture the tricky spot that the Trump administration is in here because one of the biggest arguments it's presenting to these justices is this idea that a decades old Supreme Court ruling that is you said broadly affirms birthright citizenship as a universal principle.

That somehow underpins the administration's case that birthright citizenship shouldn't apply to illegal immigrants and Gorsuch a Trump appointee to the Supreme Court is saying be careful here because you're kind of turning yourself into a legal pretzel. Right by the time John Sauer was finished with his argument, you had Chief Justice Roberts asking him about his quirky idios and credit theory, you had Justice Amy Coney Barrett asking how is this going to work on a practical level with the parents of newborn babies and asking them about their immigration status.

And you had Justice Gorsuch saying this precedent you're relying on is probably not your best case. So it was not looking good for the administration. In theory I knew that this kind of thing can happen in any family.

Anyone's first cousin could be plotting murder.

This is UC4735, and today is.

“Upstanding citizens are always turning out to be secret criminals.”

And I wouldn't even call my cousin Alan an upstanding citizen. But there's one thing to know. And another thing to understand. Alan murder me. It's another thing so much worse than I thought I knew.

The price is definitely reasonable.

Okay. What the hell was Alan thinking? Like, let's just say that I'm living with his stuff. Yeah, yeah. Now I get it.

“From serial productions and the New York Times, I'm am guessing, and this is the idiot.”

Listen, wherever you get your podcasts. So and walk us through the argument, put forth by the other side of this case, the lawyer challenging President Trump's executive order on birthright citizenship. Who's wrong? Mr. Keith Justice and may it please the court.

So this is Cecilia Wong, who is a legal director of the American Civil Liberties Union. And she's representing the group of expectant parents who've sued the Trump administration on behalf of their future babies. Ask any American what our citizenship rule is, and they'll tell you. Everyone born here is a citizen alike.

That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy. And Wong makes the case that it's a simple reading of the 14th Amendment. When the government tried to strip Mr. Wong Kim arcs citizenship on largely the same grounds they raised today, this court said no.

That it's been interpreted broadly for generations and understood in court rulings throughout the years and executive actions by past presidents. And she says very strongly that the interpretation of the 14th Amendment should not be changed now.

That is a fatal concession.

“Because Wong Kim arcs controlling rule of decision precludes their parental domicile requirement.”

And Wong says that the government's case is particularly weak because it's asking the court not to overall Wong Kim arc, which again, she says stands for this broad principle of birthright citizenship. And the majority tells us six times in the opinion that domicile is irrelevant under common law. She says the government's emphasis on the word domicile was not the point of that opinion. So if they continue to say that it should not be overruled, then the ACLU should win.

Right.

She basically seems to be saying where the Trump administration finds some legal solace in this case,

which is that old arc case means that actually they have no case at all because that domicile argument in her telling is just kind of bunk. Right. But then she faces some major pushback from the justices. We've heard a lot of talk about Wong Kim arc and you dismiss the use of the word domicile in it.

It appears in the opinion 20 different times. So first she hears from Chief Justice Roberts who makes the point that the administration has made over time to point out that the opinion in Wong Kim arc does include the word domicile 20 times. Isn't it at least something to be concerned about to say that discuss 20 different times and has that significant role in the opinion that you can just dismiss it as irrelevant?

And he asks sort of how this can be dismissed as irrelevant if the court from that era chose to include that in the opinion. Well, just one on draft. What do we do with the fact that after Wong Kim arc at least some authorities took the view that the non-domicillary question wasn't decided. Remained open and even continue to press the view that domicile is required. You hear similar questions from Justice Gorsuch about the history and then perhaps more surprising. Justice Elena Kagan, a liberal, also starts asking questions about the appearance of the word domicile throughout the opinion.

“Ms. Wong, I mean, everything you say strikes me as, yeah, that's the way I read it to, but then what are those 20 domicile words doing there?”

Well, I think, again, that was those were the stipulated facts in the case, and it's clear we have textual evidence in the majority opinion. And in response, similar to the solicitor general, she started pulling on different aspects of history. We have an 1896 state department regulation. All to make this case about the long-standing broad principle of birthright citizenship. Again, after setting out the English common law rule and the exact same.

She went back to English common law, and other areas of history, citing even the example of Japanese nationals who were in turn during World War II. When the United States was detaining Japanese nationals whose children babies who were born were US citizens. Everyone agreed that those babies were US citizens, and Professor Mueller goes on to explain that, you know, there are many cases of those US citizens going on to a lifetime of government service to the United States. Everyone agrees those babies.

And, and seemingly to make the point that even in what seemed like rather extreme moments where we might question the allegiance of a foreign national and whether they were domiciled. Our system determined that their children were American citizens. Yes, exactly, even in wartime, she's saying this principle was affirmed over and over again throughout history. And many of the justices seem satisfied with her answers to questions about the word domicile.

“But what are the most skeptical justices seem to be just as Samuel Lito?”

So let me give you these examples. Who posed a hypothetical about a boy born to an Iranian father? A boy is automatically an Iranian national at birth and he has a duty to provide military service to the Iranian government. Is he not subject to any foreign power? And he asked when the child be subject to military service and doesn't that child still have allegiance to that country.

There's no surprise that he brought up this example since we are at war with Iran.

Right, but again, Justice Lito, that would have meant that the children of Irish, Italian and other immigrants, which won came our first two.

And the framers referred to would not have been citizens either. And in response, one tried to broaden the scope to say, you know, if that's the case, what about children of Irish immigrants?

Right, because Lito is of Italian descent.

“And what she seems to be saying is if you take the hypothetical argument that Lito is making about an Iranian father and son and what do you have to serve in the army?”

Perhaps because he has dual citizenship. But that was true of every person from every country who came to the US and had a kid. They owed some theoretical allegiance back to their home country.

Right, and she's saying that this issue of birthright citizenship has never been about the parents.

It's always about the children born here and their citizenship opportunities. Thank you, Council. General, the case is submitted. And as these arguments wrapped up on Wednesday afternoon.

“And just as they were long and they were very substantive, was it right to think of this as a case that is quite likely to cut against the president and his executive order?”

Seeking to and birthright citizenship? Was that the way the wind was blowing?

Yeah, I heard skepticism from at least a majority of justices, including some key conservative justices.

But I was also struck by how seriously they took the arguments from the Trump administration. Those were once seen as sort of fringe obscure theories. It was clear that they were trying to process those and make sense of those. But at the end of the day, I do think that the citizenship order will be struck down. And I want you to return to President Trump, who is best I can tell, is in that courtroom during a lot of the argument we're talking about.

What do you glean from his body language from anything about what he made of these arguments?

Well, he ended up leaving about halfway through.

He stayed to hear from his solicitor general arguing in favor of the administration's position. He listened to the introduction from the ACLU lawyer. And then he popped up and just slowly walked out of the courtroom and quickly went back to the White House. And there he got onto social media and started criticizing the whole idea of guaranteed birthright citizenship saying that the United States is the only country in the world. The stupid enough, as he said, to allow birthright citizenship, which we know is not true, but just showing how much this is on his mind and how important it is to him.

Right. And something about that phrase, stupid enough, makes me think that Trump might have left the Supreme Court, not certain of victory. In fact, maybe nervous of defeat and perhaps if he had hoped that being there might change the dynamics of this difficult case, perhaps recognizing that maybe it didn't. I think that he's been counseled all along that this was a difficult case asking the court to reinterpret a long held understanding of the 14th Amendment. But certainly, the atmosphere, the dynamics that pushed back to the administration could not have felt great leaving the courtroom.

Oh, Anne. Thank you very much. Appreciate it. Thank you. We'll do it back.

“Here's what else you need to know today.”

As we speak this evening, it's been just one month since the United States military began Operation Epic Fury, targeting the world's number one state sponsor of terror around. In a televised speech to the nation on Wednesday night, President Trump declared that the United States and is really war against Iran has been a major military success. In these past four weeks, our forces have delivered swift, decisive, overwhelmed victories on the battlefield. But Trump offered no clear timeline for when or how the war might end.

Down played its economic costs and claimed without evidence that the straight of her moves would spontaneously open back up at the conclusion of the conflict. When this conflict is over, the straight will open up naturally. It'll just open up naturally. And 10, 9, 8, 7, RS 25 inches, 4, 3, 2, 1, booster ignition, and lift off. Artemis 2, a 10-day mission around the moon, began on Wednesday evening when a spacecraft carrying four astronauts blasted off from the Kennedy Space Center in Florida.

The mission is one of several that are expected to culminate in the next few years with the return of humans to the moon for the first time in decades.

“Today's episode was produced by Eric Crocky, Shannon Lynn, Lexi Diel, and Jack Disodoro, with help from Clare Tenisketter.”

It was edited by Rob Zipko and MJ Davis Lynn, with help from Lindsay Harrison.

Contains music by Marian LaZona, Chelsea Daniel, and Pat McCusker. Our theme music is by Wonderland. This episode was engineered by Alyssa Moxley.

“That's it for Daily. I'm McAverbal. See you tomorrow.”

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