The 14th Amendment has granted citizenship to nearly all infants born in the United States since 1868, but President Trump is seeking to block citizenship for the children of undocumented immigrants and temporary residents.
SCOTUS will hear debate on birthright citizenship. Here’s what we know:
The Supreme Court is scheduled to hear arguments on birthright citizenship in May. Here’s what we know about its impact:
WASHINGTON – President Donald Trump’s effort to redefine who is an American did not result in the swift rejection from the Supreme Court that many had expected heading into oral arguments April 1, but leading conservative justices appeared skeptical of the administration’s claims about its legality.
Every other court that has considered President Trump’s executive order severely restricting birthright citizenship has ruled against it.
But the conservative justices in the 6-3 majority asked the other side pointed questions, particularly about how to understand the court’s landmark 1898 decision that upheld citizenship for a San Francisco-born man whose Chinese parents were barred from citizenship by law at the time.
Still, the court could rule against Trump without agreeing to the meaning of the ruling. This will be a major blow to the president, who is historically the first sitting president to attend part of the debate.
Here are six takeaways from the discussion:
Judges have multiple ways to rule against Trump
14th The proposed amendment would automatically grant citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction of the United States.”
President Trump has argued that this provision does not apply to the children of people who are in the country illegally or temporarily.
Although the justices spent much of their time debating the original meaning of that clause and how to interpret the court’s landmark 1898 decision on it, there is another potential way the court could decide this case.
Similar language was used in the Civil Rights Act of 1952, but it was widely understood at the time to differ from President Trump’s interpretation of Section 14.th The amendment means the court could reject President Trump’s order without resolving any questions about the amendment’s intent or the 19th-century ruling.
Justice Brett Kavanaugh, a Trump appointee, noted that the court’s standard practice is to resolve issues based on law rather than constitutionality whenever possible.
But ACLU attorney Cecilia Wang, who is representing the challengers, said it’s important the court upholds the landmark 1898 decision on birthright citizenship.
“I just think it would be wise for the court to revisit that,” Wang said. “But of course we are willing to win in any position.”
Attorney General John Sauer argued that the lawmakers who drafted the 1952 law had misunderstood the 2014 law.th amendment, the Supreme Court could amend it at the same time by upholding President Trump’s order.
But if the court were to rule against Trump, Sauer added, the administration would prefer to lose based on the 1952 law rather than the Constitution. If that were to happen, Congress could change the law to strip people of their birthright citizenship, but that would be highly unlikely without a Republican majority in both chambers. That would certainly lead to new legal challenges and likely send the constitutional issue back to the high court.
What does “domicile” mean?
A hotly contested issue is whether the parents must be “resident” in the United States, meaning they must be legally present and intend to remain in the United States, in order for the children to be considered citizens. The word “settlement” appeared multiple times in the landmark 1898 ruling upholding birthright citizenship, but lawyers challenging Trump’s order argue that citizenship does not require it.
Sauer argued that domicile refers to people who are legally present in the country and intend to permanently reside there. His position excluded children of illegal immigrants and people visiting the country temporarily, who are not automatically granted citizenship.
But Judge Amy Coney Barrett, a Trump appointee, suggested that applying the definition of birthright citizenship could be difficult.
“Some people don’t know at birth whether they want to stay or not,” Barrett said.
Chief Justice John Roberts noted that the word “residence” appeared 20 times in the court’s 1898 decision, which affirmed birthright citizenship for nearly everyone born in this country.
“Isn’t it at least concerning that something has been discussed 20 times and plays such an important role in the opinion that it can be dismissed as irrelevant?” Roberts asked Wang, the ACLU attorney.
Mr Wang said birthright citizenship derives from British common law, which does not require parents’ domicile.
Justice Neil Gorsuch, a Trump appointee, suggested that the purpose of the word “residence” in the 1898 decision was unclear.
“It seems confusing to me,” he said. “Maybe you can convince me otherwise.”
Birth tourism: Judges say Trump’s policy concerns are irrelevant
President Trump has blamed “birth tourism” — the practice of pregnant women coming to the United States to give birth and making their babies citizens — as the main justification for cutting back on birthright citizenship.
“In recent decades, countless foreign nationals from potentially hostile countries have flocked to give birth in the United States, creating an entire generation of Americans abroad with no meaningful connection to the United States, creating a sprawling industry of birth tourism,” Sauer said in court.
However, the scope of birth tourism and its threat to national security is hotly debated. Estimates range from a “mere” 2,000 babies per year to a debatable 100,000 babies per year over 15 years.
Asked about the statistics by Roberts, Sauer acknowledged it was unclear how common the practice was.
“No one knows for sure,” Sauer said.
Regardless of their impact, Roberts argued that policy considerations “have no bearing on the legal analysis before us.”
Kavanaugh, another conservative justice whose votes are often key to decisions, made a similar point about the administration’s argument that most countries do not have birthright citizenship.
“You have mentioned several times the practices of other countries, which clearly support what you are saying here as a matter of policy,” Kavanaugh told Sauer. “But obviously we’re trying to interpret American law based on American history, based on American precedent.”
Some conservatives insist on the Trump administration’s claims
Some of the court’s conservative justices appeared concerned about the breadth of the Trump administration’s claims or the practicality of how they would be applied.
Roberts, an appointee of President George W. Bush, said he found it “very strange,” citing the Trump administration’s assertion that children born in the United States to illegal immigrants are not automatically citizens.
The administration pointed to the children of ambassadors and the children of enemies who have entered the country, suggesting that children of undocumented immigrants may not have citizenship either, since these children were not historically understood to have a right to citizenship.
“I don’t really understand how you can go from such a small, kind of idiosyncratic example to that large group,” Roberts said.
Sauer said there is historical evidence to support the understanding that birthright citizenship is granted to people who do not owe allegiance to another country.
Barrett suggested it would be difficult to apply the Trump administration’s definition of birthright citizenship – whether the parents of a child born in the United States are “resident” in the United States, meaning whether they intend to remain in the United States permanently.
As a practical matter, Sauer said, because the president’s executive order takes into account the legal immigration status of a child’s parents, there is no need for courts to evaluate parental intent.
Liberals doubt Trump’s stance on birthright citizenship
It was clear even before the arguments were heard that the court’s three liberal justices were deeply skeptical of the Trump administration’s stance on birthright citizenship.
In a June dissent in a case challenging a lower court judge’s authority to block President Trump’s citizenship order nationwide, Justice Sonia Sotomayor said the order was “clearly unconstitutional under settled law.” Justices Ketanji Brown Jackson and Elena Kagan joined the opinion.
Judging by the April 1 debate, none of the three Democratic-appointed justices have changed her mind.
Kagan, who was appointed by President Barack Obama, said “everybody” has believed in the rationale for birthright citizenship “for a long time.”
Jackson suggested that a Trump administration victory could fundamentally destabilize civil rights. That’s because Congress could continue to overturn birthright citizenship simply by redefining what it means to be “domiciled” in the United States (the Trump administration says a parent’s “domiciled status” is key to whether a child has birthright citizenship).
Sotomayor argued that if the Trump administration wins, it could begin stripping people of their citizenship rights through new executive orders, even if the executive orders in question apply only to future children born in the United States.
“The government could move to denaturalize people who were born here illegally,” she says.
Sauer argued that there has long been controversy over who has birthright citizenship, and that the Trump administration is not seeking to retroactively revoke birthright citizenship.
In an unprecedented move, President Trump attends Supreme Court arguments
President Trump demonstrated the importance of the case to him by attending the April 1 argument in person, an unprecedented step for a sitting president.
President Trump’s motorcade arrived at the courthouse around 9:40 a.m. on its way from the White House to the courtroom across from the Capitol, passing a school group touring the National Mall. He entered through the back door.
The judge and his lawyers did not acknowledge Mr. Trump’s presence, but a quiet gasp echoed throughout the room when Mr. Trump entered the room. He was seated in the front row of public seating behind the lawyers’ table.
Trump left the debate more than an hour after Sauer’s main presentation ended.
“We are the only stupid country in the world that recognizes ‘natural-born’ citizenship!” Trump said on social media after the argument.
According to the Pew Research Center, 32 other countries, including Canada, Mexico and Brazil, offer birthright citizenship under similar terms to those in the United States.
Contributor: Carissa Wadick
