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By Jenni Fink
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Attorney Mike Davis said if the Constitution were to be followed, the U.S. Supreme Court would rule in favor of President Donald Trump regarding birthright citizenship but that they appear to be giving in to politics.
The Supreme Court on Wednesday heard arguments in a high-stakes case that could upend more than a century of settled law on birthright citizenship, weighing whether Trump can restrict the 14th Amendment’s guarantee that nearly anyone born on U.S. soil is an American citizen. The case, Trump v. Barbara, centers around a 2025 executive order that would deny citizenship to U.S.-born children unless at least one parent is a U.S. citizen or lawful permanent resident.
Davis told Megyn Kelly on her Sirius XM show, The Megyn Kelly Show, that if the Supreme Court does their "job" and follows the "very simple law, this executive order should be upheld." He said that the 14th Amendment clearly outlines birthright citizenship but that it's not enough to be born in the U.S. A person must also be subject to the jurisdiction of the United States, meaning a person has allegiance to the U.S., he said.
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He noted that the Supreme Court previously ruled that Native Americans didn't have birthright citizenship because they weren't subject to the jurisdiction of the U.S., although Congress later gave Native Americans citizenship through a law in 1924. Davis said that if Native Americans didn't have birthright citizenship, children of people who are not legal citizens of the United States should not have it, either, since they're not subject to the jurisdiction of the U.S.
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Davis and Kelly both seemed skeptical that the Court will side with Trump in the case.
"The issue is that there's this whole thing called politics and I am concerned, after listening to today's oral arguments, that these justices didn't wear their robes today," Davis said. "They wore their capes today."
Davis, a Trump ally, clerked for Justice Neil Gorsuch when he was a judge in Colorado and campaigned heavily for his nomination and confirmation to the Supreme Court. He also helped rally votes for Justice Brett Kavanaugh. He told Kelly that their wobbling on cases that involve Trump comes down to them being raised in a "different generation" than Justices Clarence Thomas and Samuel Alito.
"The law schools got a lot more Marxist and they went to law school at a different time than Justice Alito and Justice Thomas went to law school," Davis said. "When you're trying to be accepted in these elite Marxist law schools like Harvard, you have to be the acceptable conservative. That's the problem with Trump justices. They care too much about being the acceptable conservative."
Several conservative Supreme Court justices appeared openly skeptical of Trump’s effort to restrict birthright citizenship. During oral arguments in Trump v. Barbara, members of the Court’s conservative bloc pressed administration lawyers on their interpretation of the 14th Amendment, questioning whether the Constitution allows citizenship to hinge on a parent’s immigration status.
Chief Justice John Roberts and Kavanaugh focused on the historical understanding of the Citizenship Clause, noting that for more than a century it has been read to guarantee citizenship to nearly everyone born on U.S. soil, with only narrow exceptions such as children of foreign diplomats. Roberts suggested that the government’s theory would dramatically expand those exceptions, while Kavanaugh questioned whether the Trump administration’s reading could be squared with long-standing precedent.
Other conservative justices raised practical and legal concerns about how the policy would be applied. Gorsuch questioned how federal authorities would determine whether parents possess the level of “domicile” or “allegiance” the administration says should be required, while Justice Amy Coney Barrett pressed government attorneys on whether their claims conflicted with existing Supreme Court rulings, including United States v. Wong Kim Ark, the 1898 case widely viewed as cementing birthright citizenship.
Trump’s executive order would deny automatic citizenship to children born in the U.S. unless at least one parent is a citizen or lawful permanent resident. The order has been blocked by lower courts and hasn't taken effect.
Dave Aronberg, a former state attorney in Palm Beach, Florida, predicted on Kelly's show that the ruling could be 9-0 against Trump. Kelly disagreed, predicting that Thomas and Alito wouldn't rule against him. She predicted it would come down to Roberts, Kavanaugh, Gorsuch and Barrett, and said Kavanaugh sounded "a little skeptical."
Davis agreed, saying that the Trump-appointed justices "may very much disappoint on this one."
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