The Supreme Court seemed poised Wednesday to reject President Donald Trump’s restrictions on birthright citizenship in a consequential case that was magnified by his unparalleled presence in the courtroom.
Conservative and liberal justices 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.
Local advocates took notice of the justices’ pointed questions about the validity of the presidential order. They also expressed concerns about potential wide-ranging impact if the order were allowed to take effect.
“If this executive order had been in place when I was born, I wouldn’t be a U.S. citizen,” said Sarang Sekhavat, chief of staff at the Massachusetts Immigrant & Refugee Advocacy Coalition. He was born in Brockton to immigrant parents from Iran. “Taking away or watering down the 14th Amendment is going to mean there are children all over this country who aren’t going to have those same opportunities. Somehow they’re going to be treated differently because of their parents.”
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.
After court adjourned, Trump posted on Truth Social: “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” Actually, about three dozen countries, nearly all of them in the Americas, guarantee citizenship to children born on their territory.
Justices ask about the Trump order’s legal basis
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.
Chief Justice John Roberts suggested that Sauer was relying on quirky exceptions to citizenship to make a broad argument about people who are in the country illegally. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples,” Roberts said.
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.
Oren Sellstrom, litigation director at the Boston-based organization Lawyers for Civil Rights, said the justices were “rightfully skeptical” in asking about the constitutionality of Trump’s order and the potential chaos of allowing it to take effect.
“The bright line rule that we all know today and that has existed in this country for the last 150 years — that any child born here is an American citizen — would be undermined at that point,” Sellstrom said.
“Everyone in that situation would then have to prove the citizenship or other status of their parents. That is a practical nightmare that the justices were pointing out, in addition to the fact that it is entirely antithetical to what our Constitution says,” he added.
Several courts have blocked the citizenship restrictions
The justices heard 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. The restrictions have not taken effect anywhere in the country.
The case frames another test of Trump’s assertions of executive power that defy long-standing precedent for a court that has largely ruled in the president’s favor — but with some notable exceptions that Trump has responded to with starkly personal criticisms of the justices. A definitive ruling is expected by early summer.
The birthright citizenship order, which Trump signed the first day of his second term, is part of his Republican administration’s broad immigration crackdown.
Birthright citizenship is the first Trump immigration-related policy to reach the court for a final ruling. The justices previously struck down global tariffs Trump had imposed under an emergency powers law that had never been used that way.
Trump reacted furiously to the late February tariffs decision, saying he was ashamed of the justices who ruled against him and calling them unpatriotic.
He issued a preemptive broadside against the court on Sunday on his Truth Social platform. “Birthright Citizenship is not about rich people from China, and the rest of the World, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America. It is about the BABIES OF SLAVES!,” the president wrote. “Dumb Judges and Justices will not a great Country make!”
What would Trump’s order do?
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,” Sauer wrote.
Appearing before the court, Sauer said unrestricted citizenship encourages illegal immigration and “birth tourism” by pregnant women who visit the U.S. only to give birth.
Roberts asked Sauer how significant “birth tourism” is.
No one knows for sure, he said, adding, “but of course, we’re in a new world now” where 8 billion people are a plane ride away “from having a child who’s a U.S. citizen.”
The chief justice replied, “It’s a new world. It’s the same Constitution.”
Justice Neil Gorsuch, a Trump appointee, also revealed his skepticism of Sauer’s position when the solicitor general said the 1898 Supreme Court case should be read to endorse Trump’s view of citizenship. “I’m not sure how much you want to rely on Wong Kim Ark,” Gorsuch said.
Yet another conservative justice appointed by Trump, Brett Kavanaugh, suggested to Wang that the court could resolve the case in Wang’s favor either with a “short opinion” saying that the Wong Kim Ark case was correctly decided and it means Trump’s order is unconstitutional.
Or, he said, the justices could avoid constitutional questions and find that the order is illegal under federal law.
No court has accepted the Trump administration’s argument, and lawyers for pregnant women whose children would be affected by the order said the Supreme Court should not be the first to do so, Wang told the justices.
Justice Amy Coney Barrett also seemed to openly question the historic foundations of Sauer’s argument, calling them “puzzling.” She said the government has reliance on narrower versions of the “jus soli” rule, or a legal principle granting automatic citizenship to people born within a country’s soil, and the jus sanguinis rule, another legal principle that allows children to get the same citizenship as their parents, focusing on their family’s geographical lineage.
“Why would they have done that?” Coney Barrett said of the authors of the Fourteenth Amendment. “And if they were gonna invent an entirely new kind of citizenship, like an American brand, why wouldn’t we have seen more discussion of that?”
Saeur said English Common Law points to “allegiance” of parents of a child in citizenship.
“They don’t focus on the parents. It’s the child. And your approach focuses on the parent’s allegiance. Yeah, I’m not sure that that’s true. It seems a little ambiguous,” said Coney Barrett.
“I think she was definitely approaching it from a devil’s advocate point of view,” said Sekhavat who wasn’t entirely convinced Coney Barrett was favoring Wang’s arguments.
Advocates in Massachusetts said birthright citizenship is “deeply rooted” in the nation’s history.
“The 14th Amendment and centuries of precedent categorically reject the maintenance of a permanent underclass. No good-faith reading of the law can hold otherwise,” said Carol Rose, executive director at the ACLU of Massachusetts.
Lenita Reason is executive director of Brazilian Worker Center, an organizational plaintiff in Lawyers for Civil Rights’ related lawsuit focused on birthright citizenship. She says the center serves thousands of people who would be impacted by the executive order, some of whom “wouldn’t have a country” if it took effect. Reason said that would be a “nightmare.”
She said some immigrant women who are pregnant have already called the Brazilian Worker Center with questions about the ongoing birthright citizenship issue. “We really don’t have the answers. We just hope this doesn’t happen,” she said.
Questions about the word ‘domicile’
The most difficult questions Wang faced, from several justices, dealt with the repeated use of the word “domicile” in Wong Kim Ark, which the administration says indicates that the court’s view of birthright citizenship excluded people in the country temporarily or illegally.
Roberts said the word is used 20 times in the 1898 decision. “Isn’t it at least something to be concerned about?” he asked.
Wang says it’s true that the Chinese parents in that case were domiciled in the U.S. but that the decision did not turn on that fact.
Generally, though, the intensity of the justices’ questions dropped off during her presentation, often a signal of where the court will come out.
More than one-quarter of a million babies born in the U.S. each year would be affected by the executive order, according to research by the Migration Policy Institute and Pennsylvania State University’s Population Research Institute.
While Trump has largely focused on illegal immigration in his rhetoric and actions, the birthright restrictions also would apply to people who are legally in the United States, including students and applicants for green cards, or permanent resident status.
Content from the Associated Press was used for this story. Associated Press writer Darlene Superville contributed to this report.
