WASHINGTON — Members of the Supreme Court expressed doubt on Wednesday about the legality of President Donald Trump’s proposal to restrict the constitutional right to birthright citizenship for individuals born on U.S. soil.
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. Consequently, babies born to temporary visitors who entered the country legally or to individuals who entered illegally would not automatically become citizens at birth.
Trump attended the oral argument in person, a first for a sitting president, but left before it ended. “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” he wrote on Truth Social soon after.
Trump’s executive order challenges the conventional interpretation of a provision in the Constitution’s 14th Amendment, specifically the citizenship clause.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” it states.
Amidst discussions about the unforeseen nature of mass illegal immigration when the amendment was enacted, conservative Chief Justice John Roberts and others challenged the government’s revised interpretation.
“It’s a new world. It’s the same Constitution,” Roberts told Solicitor General D. John Sauer, arguing on behalf of Trump.
Conservative Justice Neil Gorsuch, addressing Sauer’s reliance on citizenship’s being conditioned on someone’s being a long-term resident of the U.S., 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 he raised the question of how the 14th Amendment was intended to repudiate the notorious 1857 Dred Scott ruling, which said Black slaves were not citizens.
