Demonstrators rally in support of birthright citizenship outside the U.S. Supreme Court as President Donald Trump attends oral arguments in Washington, D.C., on April 1.
Kent Nishimura/AFP via Getty Images
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Kent Nishimura/AFP via Getty Images
A majority of Supreme Court justices peppered Solicitor General D. John Sauer with skeptical questions about the Trump administration’s position that birthright citizenship should not apply to babies born to immigrants in the country illegally.
That included conservatives Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
If conservatives were skeptical of Sauer, Justices Gorsuch and Barrett, in particular, had hard questions for Cecillia Wang, legal director of the American Civil Liberties Union who argued against Trump’s position, too, and could be potential swing votes.
Roberts, at one point, called some of what’s undergirding Sauer’s arguments “quirky and idiosyncratic.”
Gorsuch quizzed Sauer on immigration laws in 1868 when the 14th Amendment, which guarantees automatic citizenship to those born on U.S. soil and said some of the Sauer’s sources for his argument were “like going back to Roman law.”
When Sauer used a previous Supreme Court case, Wong Kim Ark, widely believed to be precedent upholding birthright citizenship for all born on U.S. soil, Gorsuch joked, “I’m not sure you want to apply Wong Kim Ark.”
Kavanaugh pressed Sauer on language differences between the 14th Amendment, which was enacted in 1868, and the Civil Rights Act of 1866.
The 1866 law mentions that people would be citizens, who are “not subject to any foreign power.”
The 14th Amendment does not use that phrase, instead stating: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Sauer argued that the intent was the same with both laws.
“Why didn’t they say the same thing?” Kavanaugh responded.
Kavanaugh also dismissed the idea that many other countries don’t have birthright citizenship.
“I’m not seeing the relevance as a legal, interpretive matter,” Kavanaugh said. Sauer agreed that it wasn’t relevant legally.
Justice Barrett said part of Sauer’s argument was “puzzling” — about why the framers didn’t make citizenship explicitly tied to bloodline (jus sanguinis) instead of soil (jus soli) as other countries did.
The strongest questioning for Wang came from conservative Justice Samuel Alito. He asked several questions and sparred with Wang on the idea of the intent of the 14th Amendment. Wang acknowledged that the “intent” of both laws was the same, but noted that Wong Kim Ark’s ruling points out that the 14th Amendment clears up that ambiguity.
Under questioning from Kavanaugh, Wang noted that the phrase “foreign powers” refers specifically to the exception that children of ambassadors do not qualify for automatic citizenship.
Among those at the Supreme Court on Wednesday was President Trump, making him the first sitting president to attend oral arguments at the nation’s highest court.
An opinion is expected this summer.
This story will be updated.
