Conservative and liberal justices on Wednesday questioned whether Trump's order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens comports with either the Constitution or federal law.
Trump, the first sitting president to attend arguments at the nation’s highest court, spent just over an hour inside the courtroom for arguments made by the Republican administration's top Supreme Court lawyer, Solicitor General D. John Sauer. The president departed shortly after lawyer Cecillia Wang began her presentation in defense of broad birthright citizenship.
Trump heard Sauer face one skeptical question after another. Justices asked about the legal basis for the order and voiced more practical concerns.
“Is this happening in the delivery room?” Justice Ketanji Brown Jackson asked, drilling down into the logistics of how the government would actually figure out who’s entitled to citizenship and who’s not.
Justice Clarence Thomas sounded the most likely among the nine justices to side with Trump.
“How much of the debates around the 14th Amendment had anything to do with immigration?” Thomas asked, pointing out that the purpose of the amendment was to grant citizenship to black people, including freed slaves.
The justices are hearing Trump’s appeal of a lower-court ruling from New Hampshire that struck down the citizenship restrictions, one of several courts that have blocked them. They have not taken effect anywhere in the country.
Trump's order would upend the long-standing view that the Constitution’s 14th Amendment, ratified in 1868, and federal law since 1940 confer citizenship on everyone born on American soil, with narrow exceptions for the children of foreign diplomats and those born to a foreign occupying force.
The 14th Amendment was intended to ensure that black people, including former slaves, had citizenship, though the Citizenship Clause is written more broadly. “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,” it reads.
In a series of decisions, lower courts have struck down the executive order as illegal, or likely so, under the Constitution and federal law. The decisions have invoked the high court's 1898 ruling in Wong Kim Ark, which held that the U.S.-born child of Chinese nationals was a citizen.
The Trump administration argues that the common view of citizenship is wrong, asserting that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore are not entitled to citizenship.
The court should use the case to set straight “long-enduring misconceptions about the Constitution’s meaning,” wrote Sauer, the solicitor general.
