The U.S. Supreme Court on Wednesday considered whether President Donald Trump’s executive order denying citizenship to children of parents without legal immigration status complies with the Constitution.
Trump signed an executive order on his first day in office to block children from automatically receiving citizenship if their parents were residing in the country unlawfully during the birth. It immediately faced legal challenges, based on the 14th Amendment of the U.S. Constitution, ratified in 1868, which established birthright citizenship.
The amendment guarantees citizenship to any person born in the country and “subject to the jurisdiction thereof.” The April 1 arguments, which Trump attended, focused on the meaning of the latter phrase and on Supreme Court precedent in the 1898 decision in the U.S. v. Wong Kim Ark case.
In February, the U.S. Conference of Catholic Bishops (USCCB) petitioned the Supreme Court to consider the moral implications of Trump’s order, saying it will determine “whether the law will protect the human dignity of all God’s children.”
Andrew Arthur, resident fellow in law and policy at the Center for Immigration Studies and a former immigration judge, told “EWTN News Nightly” those questions “weren’t really relevant” to the legal debate in court, which instead focused on the proper interpretation of the amendment and precedent.
The bishops’ objections were “heavy on morality, on human dignity, but rather light on the law itself,” he said.
Justices question Trump’s authority
Solicitor General D. John Sauer, who defended the government, noted the motivation for the 14th Amendment was to guarantee citizenship to “the newly freed slaves and their children” after the abolition of slavery.
He argued that the text is meant to protect those who are “domiciled” in the country, which he defined as those with a “lawful presence with the intent to remain.” He said the “domicile of the child follows the domicile of the parents,” and those who are meant to be temporarily present or not allowed to be present are “not covered by the clause.”
Sauer referenced the Wong Kim Ark case, in which the Supreme Court said the man — born in the United States to two parents who were legal permanent residents but not citizens — was a citizen upon birth and referenced the parents’ “domiciled” status.
Although the nearly 130-year-old decision held a broad view of birthright citizenship, he said the court at the time did not directly address the citizenship of those born to parents who were not “domiciled.”
That decision, however, only listed a few examples for when birthright citizenship did not apply: those born to foreign diplomats, those born to occupying enemy forces, and certain Indigenous Americans.
Sauer added that there is a problem with “birth tourism,” stating people have “flocked to give birth in the United States in recent decades,” creating citizens with “no meaningful ties” to the country. He told the justices it is “a new world,” which forces the justices to deal with questions that the previous court did not have to consider.
This prompted a response from Chief Justice John Roberts: “It’s a new world, [but] it’s the same Constitution.”
It’s a new world, [but] it’s the same Constitution.
John RobertsChief Justice of the U.S. Supreme Court
Justice Neil Gorsuch expressed heavy skepticism of the argument, saying: “You don’t see ‘domicile’ mentioned in the debates” in Congress over the 14th Amendment, stating: “These concepts aren’t discussed in them.”
Justice Elena Kagan similarly said the “domiciled” element is “not what we think of when we think of the word jurisdiction” and accused him of “using some pretty obscure sources to get to this concept.”
More concerns came from Justice Amy Coney Barrett, who pointed out the historical distinction between “Jus soli” and “Jus sanguinis” citizenship, with the former guaranteeing citizenship based on the soil and the latter guaranteeing citizenship based on the parents.
She said it would be “puzzling” for the framers to word the amendment that way if they wanted to tie citizenship to the parents and that one would expect “more discussion” of that. She said the language doesn’t “focus on the parents” but rather the child.
Justices leave door open to interpretation
In spite of the heavy skepticism of the government’s position, several justices left the door open to a more restrictive interpretation of birthright citizenship.
Cecillia Wang, an attorney for the American Civil Liberties Union and a beneficiary of birthright citizenship herself, argued that the framers of the amendment enshrined birthright citizenship in the Constitution to “put it out of the reach of any government official to destroy.”
She argued that the 14th amendment embodies the English common law tradition, which did not consider “domicile” to be relevant to “Jus soli” citizenship and said the Wong Kim Ark case did not limit the ruling to the children of “domiciled” parents.
Rather, Wang argued the decision provides “a closed set of exceptions” to birthright citizenship, which cannot be expanded without overturning that precedent. She said it was written in a way “to foreclose new exceptions.”
Several justices took issue with this as well, with Justice Brett Kavanaugh asking whether there could be “additional exceptions, based on modern circumstances, reasoning by analogy,” and Barrett raising the same point, stating: “The language doesn’t say it’s closed.”
Kagan noted that the Wong Kim Ark case used the word “domiciled” several times to explain the ruling, and Justice Samuel Alito argued “domiciled” was used to distinguish permanent residents from migrant laborers who did not plan to remain.
Alternatively, Justice Ketanji Brown Jackson suggested the language for “domiciled” may have simply been used “to help the public accept the outcome of this case” rather than to limit the decision.
Gorsuch said the legal opinion following the Wong Kim Ark decision, about whether the ruling applied to the children of non-domiciled people, “remained opened” and scholarly opinion was varied and unclear, adding: “It seems to me it’s a mess.”
The Supreme Court has the option to simply rule on Trump’s executive order or wade into the broader constitutional questions in its decision. The government is not asking the court to reject the birthright citizenship of people who have already received it but is seeking to have a different policy moving forward.