Several justices appeared skeptical of the Trump administration’s bid to limit birthright citizenship.
On Wednesday, April 1, the Supreme Court heard oral arguments in the birthright citizenship case, Trump v. Barbara. Justices across the ideological spectrum appeared skeptical of the Trump administration’s effort to strip birthright citizenship from children born in the United States to parents who are undocumented or on temporary visas. The executive order at issue was announced on the first day of Trump’s second term and would limit birthright citizenship to people who have at least one parent who is a U.S. citizen or permanent resident.
The case marks a historic moment as President Donald Trump became the first sitting president to attend oral arguments. He departed shortly after Solicitor General D. John Sauer finished arguing in favor of the administration’s case before the bench. Not long after leaving, Trump posted to social media claiming that the United States is “the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship.” This claim is false, as several dozen nations have birthright citizenship, including neighboring nations Mexico and Canada.
Sauer contended that the longstanding view that almost everyone born in the United States is entitled to citizenship is based on a misreading of the Constitution. He referenced early English and American legal traditions and asserted that citizenship was historically tied to allegiance to the government. Several justices, including those in the conservative majority, pressed Sauer on his legal reasoning. In response to Sauer’s argument that “we’re in a new world” since the time of the 14th amendment’s passage, Chief Justice John Roberts said, “it’s the same Constitution.”
Justice Neil Gorsuch asked whether, under the administration’s proposed test, Native American children born today would be entitled to citizenship. Sauer initially answered yes, before changing his answer to “I’m not sure. I have to think through that.”
Cecillia Wang, the national legal director of the ACLU, argued in favor of birthright citizenship. She was born to parents on student visas herself. “Ask any American what our citizenship rule is, and they’ll tell you, everyone born here is citizen alike,” she told the Court.
Justices Brett Kavanaugh and Amy Coney Barrett pressed Wang on whether the 14th amendment’s carve-outs should be seen as frozen in time or if they could be applied to modern circumstances such as undocumented immigration. Wang argued that the precedent set in United States v. Wong Kim Ark settled the matter.
According to legal scholars, at least seven justices appear to be leaning in favor of birthright citizenship. Georgetown Law Professor Steven Vladeck said that the Trump administration’s bid was “transparently odious and counter historical.” Others emphasize that anything but a unanimous decision against the administration’s claim would be a loss as it would establish legitimacy for antihistoric legal claims.
A decision is expected before the summer recess, which begins at the end of June or early July. The outcome would affect the citizenship status of thousands of children born in the United States each year.
