Can Trump limit birthright citizenship? Supreme Court hears arguments

The U.S. Supreme Court heard oral arguments on Wednesday in a case challenging whether President Donald Trump can limit birthright citizenship by prohibiting it for the children of immigrants who entered the country unlawfully. 

The nation's high court heard arguments in the case of Barbara et al. v. Donald J. Trump et al., one of multiple lawsuits challenging birthright citizenship. D. John Sauer, solicitor general for the U.S. Department of Justice, argued in defense of a Trump executive order trying to restrict birthright citizenship.

According to Sauer, the 14th Amendment was meant to grant citizenship to freed slaves and their offspring who had lived in the United States for generations and “did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance.”

“Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States,” Sauer continued. “For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile.”

“For decades following the clause’s adoption, commentators recognized that the children of temporary visitors are not citizens, and illegal aliens lack the legal capacity to establish domicile here.”

Justice Samuel Alito questioned Sauer about how the millions of immigrants who have been living in the U.S. for years do not count as an example of “domicile” as he was using it. Alito also wondered if there was “a humanitarian problem” with depriving the children of immigrants of birthright citizenship, given their parents’ longtime presence in the country.

Sauer replied that there still needs to be a “legal capacity” to the concept of “domicile,” rather than “the subjective intent” of an individual who entered the U.S. illegally.

Regarding the humanitarian query, Sauer countered that the rule on birthright citizenship in the U.S. is “an outlier” compared to other nations, noting that “every nation in Europe has a different rule” and thus “the notion that they have a huge humanitarian crisis as a result of not having unrestricted birthright citizenship I don’t think is a strong argument.”

Justice Ketanji Brown Jackson asked Sauer about the implementation of the more limited birthright citizenship order, such as when birth parents would have to prove their citizenship.

Sauer responded that the Social Security Administration has a “completely transparent” system in place, involving a “robust database,” that can check such matters at the birth of a child.

Much of the discussion centered on the 1898 Supreme Court case U.S. v. Wong Kim Ark, where the high court ruled 6 to 2 that a person born in California was indeed a U.S. citizen, even though his parents were Chinese nationals.

Sauer clarified that the Trump administration did not want to overturn Wong Kim Ark, as they agree with the overall ruling, and that they will not enforce the executive order on the children of immigrants who have already been born.

Cecillia Derphine Wang of the American Civil Liberties Union argued against the executive order, saying that the administration made a “fatal concession” by admitting that they do not want to overturn Wong Kim Ark.

“When the government tried to strip Mr. Wong Kim Ark’s citizenship on largely the same grounds they raise today, this court said no,” Wang stated. “Wong Kim Ark’s controlling rule of decision precludes their parental domicile requirement.”

Wang argued that legal precedent shows that the framers of the 14th Amendment embraced concepts within English common law, which formed the basis for birthright citizenship. She pointed out that during World War II, when Japanese Americans were forcibly placed in internment camps under suspicion of being enemies of the state, children born to them in the camps were considered American citizens by birth.

Alito asked about the 1866 Civil Rights Act, which included the phrase “not subject to any foreign power” when referring to the exemptions to birthright citizenship.

Alito noted that certain countries grant citizenship to children of their citizens no matter where they are born and subject them to mandatory military service, technically making them “subject to” a “foreign power.”

Alito gave the hypothetical example of a boy born in the U.S. who has an Iranian father who is also an illegal immigrant, noting that “that boy is automatically an Iranian national at birth and he has a duty to provide military service to the Iranian government.”

“Is he ‘not subject to any foreign power’?” Alito asked.

“Not within the meaning of the 1866 Act,” Wang responded. “What the framers meant by the phrase ‘not subject to any foreign power’ was referring to the ambassador exception.”

Wang added that “if it meant what the government contends, basically ‘not a subject of any foreign power,’” then it would mean “lawful permanent residents, all foreign nationals” would “not have been citizens, either.”

Wang said that the exemptions already found in birthright citizenship — such as the children of foreign diplomats or the children of hostile enemies in occupied territory — were meant to be a “closed set” of exceptions and that Congress at the time of adopting the 14th Amendment did not intend for the list to be expanded.

Shortly after taking office last year, Trump issued an executive order removing automatic citizenship for children born to illegal or temporary immigrants in the U.S., with it set to take effect Feb. 20.

“The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” stated the order.

The executive order was the subject of multiple lawsuits, including one filed by the American Civil Liberties Union and other progressive advocacy organizations.

After multiple courts issued nationwide injunctions against the executive order, the Trump administration appealed to the Supreme Court, which agreed last December to hear oral arguments.