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By Jenna Sundel
News Reporter
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Several of the Supreme Court's conservative justices seemed skeptical of the Trump administration's arguments on Wednesday in a case about the president's executive order on birthright citizenship
Conservative and liberal justices both questioned Solicitor General D. John Sauer's recounting of the history of the debates that led to the adoption of the Fourteenth Amendment.
The case centers around whether President Donald Trump's executive order complies with the Citizenship Clause of the Fourteenth Amendment and the Nationality Act of 1940, which has been understood as making everyone born in the U.S. a citizen, with exceptions for children of foreign diplomats and invading armies.
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Justice Neil Gorsuch, one of three conservative justices nominated by Trump during his first term, noted that there is little discussion about domicile, which refers to someone's permanent home. The concept is a key part of Sauer’s argument.
Gorsuch also questioned the sources of Sauer's arguments.
"The stuff you have about 'unlawfully present,' it's like Roman law sources you're going to," Gorsuch said.
Trump made history by attending Wednesday's oral arguments. He is the first sitting president to attend an oral argument at the Supreme Court.
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Why It Matters
Trump signed an executive order on the first day of his second term establishing that children of temporary visitors and illegal immigrants are not U.S. citizens by birth. The order was met with multiple lawsuits, and every court that has considered the order has found it to be illegal and prevented it from taking effect.
More than a quarter-million babies born in the U.S. each year would be affected by the order, according to research by the Migration Policy Institute and Penn State University’s Population Research Institute.
The Supreme Court currently has a 6-3 conservative majority, and it has ruled in favor of the Trump administration on several key issues, including immigration enforcement. Trump also nominated justices Brett Kavanaugh and Amy Coney Barrett during his first term.
However, in February, Chief Justice John Roberts, Justice Gorsuch and Justice Barrett joined the court’s liberal justices to form a majority in a decision released Friday, which held that a 1977 law does not authorize the president to implement tariffs.
Trump said he was “absolutely ashamed” of some justices who ruled against him in that case, calling them “disloyal to our Constitution.”
What To Know
Roberts says it is not clear how the exceptions to citizenship under the law can be applied to “a whole class of illegal aliens.”
He said he is not sure “how you get to that big group from such tiny and idiosyncratic examples.”
Kavanaugh said Congress might have worded things differently in laws enacted in 1940 and 1952 if lawmakers wanted to make clear that children of people here illegally or temporarily were not entitled to citizenship.
Conservative Justice Clarence Thomas seemed to express openness to the Trump administration's arguments, recounting that the aim of the 14th amendment was to make citizens of the freed slaves.
"How much of the debates around the 14 Amendment had anything to do with immigration?” Thomas asked.
The case before the Supreme Court began with a legal challenge to Trump’s executive order filed for two babies and their parents and a pregnant woman who has since given birth, on behalf of a nationwide class. A district court certified the class and entered a preliminary injunction. The government appealed the decision and asked the Supreme Court to hear the case.
Trump wrote in support of the order on social media on Monday.
"Birthright Citizenship is not about rich people from China, and the rest of the World, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America. It is about the BABIES OF SLAVES! We are the only Country in the World that dignifies this subject with even discussion," Trump said. "Look at the dates of this long ago legislation - THE EXACT END OF THE CIVIL WAR! The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!). ‘Dumb Judges and Justices will not a great Country make!’"
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What People Are Saying
Chief Justice John Roberts, during oral arguments: "You 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."
Justice Brett Kavanaugh, during oral arguments: "I get the point thinking about European countries don't have this, or most other countries, many other countries in the world don't have this. 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."
What Happens Next
The Supreme Court has not issued a ruling yet in the birthright citizenship case.
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