The U.S. Supreme Court on Wednesday heard oral arguments in what may be the most consequential case to come before the court in decades. At issue in Trump v. Barbara is an executive order President Donald Trump signed on his first day back in office, over one year ago, terminating automatic birthright citizenship. While the 14th Amendment states, “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,” the president laid particular emphasis on the clause “subject to the jurisdiction thereof,” arguing that illegal immigrants and those in the U.S. on temporary or short-term visas (such as tourism visas, student visas, H-1B work visas, etc.) are not “subject to the jurisdiction” of the U.S., and neither therefore are their children.

The Argument

“When Congress used the term ‘not subject to any foreign power’ in the Civil Rights Act of 1866, it rejected the British conception of allegiance. Senator Trumbull explained that ‘subject to the jurisdiction thereof’ in the clause means not owing allegiance to anybody else,” U.S. Solicitor General D. John Sauer explained before the Supreme Court on Wednesday. “The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens,” he added. “The Citizenship Clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children, whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens, who have no such allegiance.”

The automatic granting of birthright citizenship renders U.S. citizenship effectively meaningless, the president and Sauer charged, incentivizing illegal immigration by affording the children of illegal immigrants a U.S. citizen child to “anchor” them in the U.S. The practice further poses potential national security risks and opens the U.S. to foreign and even hostile influence. “It demeans the priceless and profound gift of American citizenship,” Sauer observed. “It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States.”

The Supreme Court’s most stalwart conservative jurists — namely, Justices Clarence Thomas and Samuel Alito — seemed inclined to agree with the Trump administration’s reasoning. Thomas, who typically asks the first question during oral arguments, suggested that the Citizenship Clause was intended as a direct response to the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which ruled that the children of black slaves were not U.S. citizens. “How does the Citizenship Clause respond specifically to Dred Scott and answers, or changes, or corrects its answer as to citizens?” Thomas asked. “I’d like you to go back [to] the beginning and be more specific about the answer.”

Sauer recounted that the Supreme Court itself had clarified that “the one pervading purpose, the main object of the Citizenship Clause, is to overrule Dred Scott and establish the citizenship of the freed slaves.” The congressional record of the time, he said, evinces “a very clear understanding that the newly freed slaves and their children have a relationship of domicile. They do not have a relationship to any foreign power.” He continued, “That reinforces our point that ‘allegiance’ is what the word ‘jurisdiction’ means. It doesn’t mean regulatory jurisdiction or sort of being subject, merely subject to the laws. They’re talking, and they’re thinking about it in those debates, about allegiance.”

Other Supreme Court justices seemed more hesitant to embrace the Trump administration’s interpretation of the Citizenship Clause. Chief Justice John Roberts suggested that Sauer laid too much emphasis on the phrase “subject to the jurisdiction thereof” and offered “quirky” examples to prove his point. “Children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens [who] are here in the country,” he said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”

Democrat-appointed Justices Sonia Sotomayor and Elena Kagan, predictably, took issue with Sauer’s argument, countering that the historical principle upon which his argument rests was applicable to “sojourners,” those who were not domiciled in the U.S. but were temporary visitors or merely passing through. The argument would not, they suggested, be applicable to illegal immigrants, who have largely come to the U.S. to live and have no intention of returning to their home countries. Justice Ketanji Brown Jackson, appointed by former President Joe Biden, also seemed prepared to reject the Trump administration’s arguments. “If I steal someone’s wallet in Japan, the Japanese authorities can arrest me and prosecute me,” she said, describing “allegiance” as “a matter of law.” She added, “Even though I’m a traveler, I’m just temporarily on vacation in Japan, I’m still locally owing allegiance in that sense.”

Justice Samuel Alito indicated that he would likely accept the Trump administration’s arguments, despite some lingering questions. Like others, he acknowledged that the language of the Civil Rights Act of 1866 — “not subject to any foreign power” — was far less vague than the 14th Amendment’s phrase “subject to the jurisdiction” of the U.S. “‘Not subject to any foreign power’ is pretty straightforward,” he said in questioning American Civil Liberties Union (ACLU) attorney Cecelia Wang. “A boy is born here to an Iranian father who has entered the country illegally. That boy is automatically an Iranian national at birth, and he has a duty to provide military service to the Iranian government. Is he not subject to any foreign power?” Alito asked. “What I said about a boy born to an Iranian father is true of children born here to parents who are nationals of other countries,” he observed. “If I’m correct, it’s true to a child who’s born here to Russian parents. It’s true [for] a child who’s born here to Mexican parents. They’re automatically citizens or nationals of those countries and have a duty of military service. It sure seems like that makes them subject to a foreign power.”

In an appearance on “Washington Watch” Wednesday night, Ken Cuccinelli, senior fellow for Immigration Security at the Center for Renewing America and both a former Homeland Security official under the first Trump administration and the former attorney general of Virginia, summarized the arguments. “The basic principle … that the president advanced is: it is not enough to just be born in our territory,” he said. “The parents need to have allegiance and obedience to the sovereign, to use common law language,” with the “sovereign” being the U.S. “People who are here illegally cannot possibly fulfill that requirement. The citizenship clause requires not only presence in the United States, but that the person born is subject to the jurisdiction of the United States,” Cuccinelli stressed. “What that meant in 1868 included allegiance and obedience to the sovereign. And, again, illegal aliens are illegal because they are not being obedient to the sovereign. They’re not obeying our laws.”

U.S. v. Wong Kim Ark

Justice Neil Gorsuch, who was appointed by Trump and frequently sides with Thomas and Alito, also expressed skepticism. He suggested that if the interpretation of the Citizenship Clause prevalent at the time of its enactment in the 1860s were to be adhered to today, then the legal status of an immigrant would likely make no difference to whether or not he could be considered domiciled in the U.S. (i.e. living in the U.S. on a permanent basis), since there were very few immigration laws on the books at the time. “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?” he asked. Sauer replied, “I would first cite [U.S. v.] Wong Kim Ark on that point because Wong Kim Ark says you’re —” Gorsuch interrupted, “Well, I’m not sure how much you want to rely on Wong Kim Ark.”

U.S. v. Wong Kim Ark was the first Supreme Court decision, issued in 1898, to address the citizenship of children born in the U.S. to alien parents. Wong Kim Ark was born in San Francisco to Chinese nationals domiciled in the U.S. After a trip abroad, Wong was denied re-entry into the U.S. under the Chinese Exclusion Act of 1882, which barred nearly all immigration from Chinese and the naturalization of most Chinese nationals domiciled in the U.S. One of the chief disputes among the Supreme Court justices of the time was the meaning of the phrase “subject to the jurisdiction” of the U.S. The court’s majority ruled that “subject to the jurisdiction thereof” ought to be interpreted “in the light of the common law” of Britain, which held that children born even to foreigners on British soil were subjects of the British king, with the exceptions of the children of foreign rulers or emissaries, children born on foreign ships, and the children of enemies or invaders.

The dissent in the case, led by Chief Justice Melville Fuller, asserted that the U.S. had broken from British common law tradition when it declared its independence and established for itself its own set of laws, its own constitution, and its own distinct government. Fuller argued that the U.S. had more readily embraced the concept of jus sanguinis, which held that a child inherited his parent’s citizenship regardless of birthplace, over the British notion of jus soli. Noting that the U.S. had signed and issued numerous treaties and statutes restricting immigration from China and barring Chinese nationals from becoming U.S. citizens, Fuller concluded that “the children of Chinese born in this country do not, ipso facto, become citizens of the United States unless the 14th Amendment overrides both treaty and statute.”

He further cited, as did Sauer, the Civil Rights Act of 1866, which stipulates that “all persons born in the United States and not subject to any foreign power” are afforded U.S. citizenship. (Emphasis added.) Fuller warned that the adoption of jus soli over jus sanguinis would result in a situation where “the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”

“So there were actually two separate parts of Wong Kim Ark. One was with respect to Wong Kim Ark, who was born in San Francisco, who was born to two parents who were lawfully domiciled in San Francisco, engaging in commerce, not representing the Empire of China,” explained Andrew R. Arthur, resident fellow in Law and Policy at the Center for Immigration Studies, in comments to The Washington Stand. While the court ultimately ruled that Wong was a U.S. citizen, they explained, in dicta, that there are exceptions to birthright citizenship, including the children of foreign diplomats, children born on foreign ships harbored in U.S. waters, children born in U.S. territory occupied by enemies, and Indians. Gorsuch and Justice Amy Coney Barrett, another Trump appointee, focused much of their questioning on that fourth exception. Arthur anticipated, “If there is any acceptance of Sauer’s arguments, it’s going to be in some way distinguishing those members of Indian tribes from other foreign nationals who were present in the United States, but not lawfully domiciled here.”

“Barrett asked do these Indians carry a bubble around them, so that if they leave tribal lands and they go and give birth outside of the tribal lands, are their children citizens? That indicated at least a willingness to consider Sauer’s arguments,” Arthur suggested, “because his point is temporary sojourners, which would be non-immigrants and those here unlawfully, cannot be lawfully domiciled in the United States.” The term “non-immigrants” is applied to those who come to the U.S. legally but only temporarily, such as those on work, student, or tourist visas, as opposed to those who come to the U.S. legally in order to live permanently, such as the spouses of U.S. citizens.

“I think this is the part that people really aren’t focused on because it’s probably the most complicated part of this. Many of the principles that the majority in Wong Kim Ark relied upon, in fact, they relied almost exclusively on English common law in order to interpret the citizenship clause of the 14th Amendment,” Arthur observed. “You know, ideas of fealty to the king. You were born in the King’s territory, therefore you owe subjection to the king, and because you owe subjection to the king, the king owes you protection,” he continued. “These truly are feudal principles.”

Fuller, who was joined by Justice John Marshall Harlan, rejected that idea. “They’re like, ‘English common law is not what we should be using because the Founders rejected all of those English concepts when they overthrew the crown. There is no king in this country, and therefore, it’s not appropriate to use those ideas,’” Arthur recounted. “Because birthright citizenship under English common law was very expansive. Anybody born in England was considered to be an English subject.”

The End of America?

Regardless of various interpretations of how oral arguments proceeded, legal scholars agreed that the issue of birthright citizenship before the Supreme Court is of paramount importance for the U.S. and the nation’s future. “On this 250th anniversary of the birth of our nation, the issue remains salient because the whole point was that we meant to create a new polity, a new citizenry,” Arthur told TWS. “It’s an abuse of the generosity of the American legal system for people to come here and give birth, to hire a surrogate in the United States, send over eggs and plant them and have a child born here.”

“If there is a civic institution that is sacred, it is American citizenship, and yet for some reason, the extent of birthright citizenship, the breadth of birthright citizenship has largely gone unexamined,” Arthur added. “As Sauer makes clear in his briefs, we’re basically utilizing an interpretation of birthright citizenship that the Franklin Roosevelt administration simply created almost out of whole cloth. Consequently, it is appropriate to have the highest court issue a decision that clarifies for everybody how expansive birthright citizenship is.”

Cuccinelli observed, “We have vulnerabilities in our society. The president is trying to close this one. He’s obviously already closed the border, everybody knows that.” He continued, “I would not say this is a change in law the president is seeking. This is a return to the original understanding of the citizenship clause of the 14th Amendment, and the main reason that clause needed to be put in the 14th Amendment was to overturn the horrendous Dred Scott decision by the Supreme Court from 1857, part of what led to the Civil War.” Cuccinelli also observed that the British common law understanding adopted by the Supreme Court in U.S. v. Wong Kim Ark could never have anticipated or provided for the modern phenomenon of mass immigration. “The whole question of mass illegal immigration is really unknown to the common law. This was not a problem in the United States in 1868, when the 14th Amendment was passed. And that was part of what the discussion in the oral argument today wandered around, because everyone agreed this wasn’t a problem then. So what do you do about it?”

Experts were less unanimous in their opinion of how the Supreme Court would ultimately rule in the case, although most anticipate that the ruling will be one of the last to be published in late June, so that the justices could end the term and retreat from the resulting controversy. Josh Hammer, senior counsel at the Article III Project, told TWS that he expects a majority — possibly even a 7-2 majority — to rule against the Trump administration. “John Sauer is a man who knows his legal history and, just as important, knows his audience. He answered every question tossed his way with confidence, skill, and ease. His argument about the all-important ‘subject to the jurisdiction thereof’ 14th Amendment language and his emphasis on ‘domicile’ is correct as an original matter,” Hammer said. “Regardless, I predict the votes will not be there to sustain the argument. … But I very much hope I am wrong.”

Cuccinelli anticipated a narrower margin. “This is definitely going to be one of those opinions that isn’t going to issue until the end of June, and I think it could be a very close vote,” he said. “It is very clear that if the administration wins this, I think it will be five-four, and if you were a betting man, which I’m not at this point, you’d probably bet against the administration just going by the oral argument today.”

Arthur suggested a more complicated approach, predicting that the justices would likely find the “subject to the jurisdiction thereof” phrase sufficiently vague to pass the matter to Congress to clarify. “This is an originalist court. They don’t really care about the practicalities of any of this,” he opined. Arthur deduced that Thomas and Alito were almost certain to side with the Trump administration and that Barrett and Gorsuch were likely open to accepting Sauer’s arguments but warned that Roberts and Justice Brett Kavanaugh were more difficult to read and could either bolster a majority decision or else take a third approach altogether.

“A lot of observers … think that the government has a tough row to hoe, and I don’t necessarily disagree with them, but I think that the key point that they’re going to make is that the ‘subject to the jurisdiction thereof’ clause is more vague than the ACLU argues that it is open to interpretation,” Arthur said. “I think that what they’re going to find is that it is vague and it could be interpreted, but Congress is the one to do the interpretation to make any limitations — again, subject to judicial review — not the executive branch.”

Cuccinelli pointed out that even if the Supreme Court were to rule against the Trump administration’s executive order, Congress could still act. “Then it’s in Congress’s hands. They can pass statutes just like they did with respect to the American Indians in 1924,” he said. “Only the U.S. and Canada have this foolish, self-destructive rule of territorial birth, and it can be gotten rid of by Congress.”