WASHINGTON — Tackling one of President Donald Trump's most provocative policies, members of the Supreme Court on Wednesday expressed skepticism about the lawfulness of his proposal to limit the constitutional guarantee of birthright citizenship for anyone born on U.S. soil.
Announced on the first day of Trump’s second term in office as part of his hard-line immigration policy, the executive order at issue would limit birthright citizenship to people who have at least one parent who is a U.S. citizen or a permanent resident.
As a result, babies born to temporary visitors who entered the country legally or to people who entered illegally would not be citizens at birth.
Trump attended the oral argument in person, a first for a sitting president, but left before it ended. Several conservative justices questioned his solicitor general, D. John Sauer, and sounded skeptical of the government's argument.
Trump's executive order upends the traditional understanding of a provision of the Constitution’s 14th Amendment known as the citizenship clause.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” the clause states.
Amid discussion of how the issue of mass illegal immigration was not anticipated at the time the amendment became law, conservative Chief Justice John Roberts was among those who pushed back on the government's new interpretation.
"It's a new world. It's the same Constitution," he told Sauer.
The clause, ratified with the amendment after the Civil War to provide equal rights to formerly enslaved Black people, has long been assumed by officials at all levels of the government to apply to almost anyone born in the United States, regardless of the legal status of their parents.
The few exceptions understood at the time included children born to diplomats and foreign invaders.
Trump’s executive order was immediately blocked by courts around the country and has never been in effect.
Justice Neil Gorsuch, addressing Sauer's reliance on citizenship being conditioned on someone being a long-term resident of the United States, pointed out that at the time of the 14th Amendment's ratification, that would not have turned on whether someone had entered the country legally.
"If somebody showed up here in 1868 and established domicile, that was perfectly fine," he said. "And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial."
Liberal Justice Elena Kagan suggested Sauer was relying on "pretty obscure sources" to make his arguments.
"The text of the clause, I think, does not support you. I think you're sort of looking for some more technical, esoteric meaning," she added.
Even conservative Justice Clarence Thomas, often a reliable vote for Trump, asked Sauer to "be more specific" when raising the question of how the 14th Amendment was intended to repudiate the notorious 1857 Dred Scott ruling that said Black slaves were not citizens.
Conservative Justice Samuel Alito emerged as the most sympathetic to Trump, who sat silently in a section of the courtroom reserved for government officials.
Alito suggested it would be reasonable to apply the "subject to the jurisdiction thereof" language to new situations not contemplated at the time it was written.
"What we're dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration," he said.
Most legal experts predicted ahead of the argument that he would face an uphill battle to win the case.
The plan, if it were implemented, would affect thousands of babies born every year across the U.S.
One woman, who asked not to be identified to protect her family, was heavily pregnant last year when she heard about the executive order. Originally from Argentina, she now lives in Florida on a student visa and was immediately alarmed about what legal status her child would have.
“My baby was actually going to be one of the first ones impacted. I immediately went into panic mode,” she said in an interview.
Determined to make sure her now-8-month-old son’s citizenship was secured, she started making arrangements to apply for a passport for him before he was even born.
Although her son now has his passport, she said she is deeply sympathetic to other families expecting babies who remain unsure what will happen.
“I know there’s probably a lot of different families and moms, pregnant moms, in my situation that are probably stressed,” she said.
The administration’s legal argument focuses on the “subject to the jurisdiction thereof” language in the citizenship clause, saying it has a much broader meaning than hitherto believed.
Sauer argued in court papers that the citizenship clause was intended to apply primarily to the children of free slaves. People must be under the direct “political jurisdiction” of the U.S. and not have any allegiance to another country, he wrote.
He cited, among other things, the 1884 Supreme Court ruling in a case called Elk v. Wilkins that spelled out why Native Americans did not, at the time, have birthright citizenship. That case “squarely rejected the premise that anyone born in U.S. territory, no matter the circumstances, is automatically a citizen so long as the federal government can regulate them,” Sauer wrote.
Experts on Native American law have questioned the government’s reliance on that case, telling NBC News it was limited specifically to the unique status of tribes under U.S. law.
The American Civil Liberties Union, which is leading the legal challenge to Trump’s executive order, responded in its brief that the text of the 14th Amendment is largely self-explanatory, as are the history and tradition of how it has been interpreted.
The group’s lawyers also point to an 1898 Supreme Court ruling called United States v. Wong Kim Ark, which concluded that a man born in San Francisco to parents who were both from China was a U.S. citizen.
In addition to probing the language of the 14th Amendment, the justices also probed whether the executive order falls afoul of a federal immigration law that uses similar language, including "subject to the jurisdiction thereof." The court could rule that the executive order is unlawful under that law without having to decide the 14th Amendment question and put the onus on Congress to act.
The Supreme Court has a 6-3 conservative majority, which repeatedly ruled in Trump’s favor last year. But the court handed him a major defeat in February when it ruled that his broad use of tariffs was unlawful.
Trump responded to that ruling with harsh criticism of the justices who voted against him in the 6-3 decision, calling them “disloyal to the Constitution.”
