The Supreme Court seemed poised Wednesday to reject President Donald Trump’s restrictions on birthright citizenship in a consequential case that was magnified by his unparalleled presence in the courtroom.
Conservative and liberal justices questioned whether Trump’s order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens comports with either the Constitution or federal law.
Arguments lasted more than two hours in a crowded courtroom that included not only Trump, the first sitting president to attend arguments at the nation’s highest court, but also Attorney General Pam Bondi and Commerce Secretary Howard Lutnick, and in seats reserved for the justices’ guests, actor Robert De Niro.
Trump spent just over an hour inside the courtroom for arguments made by the Republican administration’s top Supreme Court lawyer, Solicitor General D. John Sauer. The president departed shortly after lawyer Cecillia Wang began her presentation in defence of broad birthright citizenship.
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After court adjourned, Trump posted on Truth Social: “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” Actually, about three dozen countries, nearly all of them in the Americas, guarantee citizenship to children born on their territory.
Trump heard Sauer face one sceptical question after another. Justices asked about the legal basis for the order and voiced more practical concerns.
“Is this happening in the delivery room?” Justice Ketanji Brown Jackson asked, drilling down into the logistics of how the government would actually figure out who’s entitled to citizenship and who’s not.
Chief Justice John Roberts suggested that Sauer was relying on quirky exceptions to citizenship to make a broad argument about people who are in the country illegally. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples,” Roberts said.
Justice Clarence Thomas sounded the most likely among the nine justices to side with Trump.
“How much of the debates around the 14th Amendment had anything to do with immigration?” Thomas asked, pointing out that the purpose of the amendment was to grant citizenship to Black people, including freed slaves.
Testing Trump’s executive reach
The justices heard Trump’s appeal of a lower-court ruling from New Hampshire that struck down the citizenship restrictions, one of several courts that have blocked them. The restrictions have not taken effect anywhere in the country.
The case frames another test of Trump’s assertions of executive power that defy long-standing precedent for a court that has largely ruled in the president’s favour — but with some notable exceptions that Trump has responded to with starkly personal criticisms of the justices. A definitive ruling is expected by early summer.
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The birthright citizenship order, which Trump signed the first day of his second term, is part of his Republican administration’s broad immigration crackdown.
Birthright citizenship is the first Trump immigration-related policy to reach the court for a final ruling. The justices previously struck down global tariffs Trump had imposed under an emergency powers law that had never been used that way.
‘Unpatriotic’ justices
Trump reacted furiously to the late February tariffs decision, saying he was ashamed of the justices who ruled against him and calling them unpatriotic.
He issued a preemptive broadside against the court on Sunday on his Truth Social platform. “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!,” the president wrote. “Dumb Judges and Justices will not a great Country make!”
Trump’s order would upend the long-standing view that the Constitution’s 14th Amendment, ratified in 1868, and federal law since 1940 confer citizenship on everyone born on American soil, with narrow exceptions for the children of foreign diplomats and those born to a foreign occupying force.
The 14th Amendment was intended to ensure that Black people, including former slaves, had citizenship, though the Citizenship Clause is written more broadly. “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” it reads.
In a series of decisions, lower courts have struck down the executive order as illegal, or likely so, under the Constitution and federal law. The decisions have invoked the high court’s 1898 ruling in Wong Kim Ark, which held that the US-born child of Chinese nationals was a citizen.
The Trump administration argues that the common view of citizenship is wrong, asserting that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore are not entitled to citizenship.
The court should use the case to set straight “long-enduring misconceptions about the Constitution’s meaning,” Sauer wrote.
‘Birth tourism’
Appearing before the court, Sauer said unrestricted citizenship encourages illegal immigration and “birth tourism” by pregnant women who visit the US only to give birth.
Roberts asked Sauer how significant “birth tourism” is.
No one knows for sure, he said, adding, “but of course, we’re in a new world now” where 8 billion people are a plane ride away “from having a child who’s a US citizen.”
The chief justice replied, “It’s a new world. It’s the same Constitution.”
Justice Neil Gorsuch, a Trump appointee, also revealed his scepticism of Sauer’s position when the solicitor general said the 1898 Supreme Court case should be read to endorse Trump’s view of citizenship. “I’m not sure how much you want to rely on Wong Kim Ark,” Gorsuch said.
Yet another conservative justice appointed by Trump, Brett Kavanaugh, suggested to Wang that the court could resolve the case in Wang’s favour either with a “short opinion” saying that the Wong Kim Ark case was correctly decided and it means Trump’s order is unconstitutional.
Or, he said, the justices could avoid constitutional questions and find that the order is illegal under federal law.
No court has accepted the Trump administration’s argument, and lawyers for pregnant women whose children would be affected by the order said the Supreme Court should not be the first to do so, Wang told the justices.
Intense judicial questioning
The most difficult questions Wang faced, from several justices, dealt with the repeated use of the word “domicile” in Wong Kim Ark, which the administration says indicates that the court’s view of birthright citizenship excluded people in the country temporarily or illegally.
Roberts said the word is used 20 times in the 1898 decision. “Isn’t it at least something to be concerned about?” he asked.
Wang says it’s true that the Chinese parents in that case were domiciled in the US but that the decision did not turn on that fact.
Generally, though, the intensity of the justices’ questions dropped off during her presentation, often a signal of where the court will come out.
More than one-quarter of a million babies born in the US each year would be affected by the executive order, according to research by the Migration Policy Institute and Pennsylvania State University’s Population Research Institute.
While Trump has largely focused on illegal immigration in his rhetoric and actions, the birthright restrictions also would apply to people who are legally in the United States, including students and applicants for green cards, or permanent resident status.
(FRANCE 24 with AP)
