Supreme Court appears deeply skeptical of Trump’s bid to eliminate birthright citizenship

A majority of Supreme Court justices appeared deeply skeptical of President Donald Trump’s bid to unilaterally eliminate birthright citizenship as part of his attack on immigration in all forms.

In oral arguments Wednesday morning, liberal and conservative justices alike — including those appointed during Trump’s first term — sharply questioned Solicitor General D. John Sauer about Trump’s executive order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens.

At many points, justices openly said they were confused by the Department of Justice’s (DOJ) defense of Trump’s order.

Signed on his first day in office, the order directed federal agencies to reinterpret the Constitution’s 14th Amendment to deny citizenship to children born to undocumented parents or parents who have lawful, but temporary, residency status.

Trump’s order has never gone into effect, as lower courts have unanimously ruled that it violates federal immigration law and the 14th Amendment’s Citizenship Clause, which 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.”

Whether Trump’s order indeed violates that clause is now the question before the Supreme Court.

In defending Trump’s order, the DOJ has claimed that the 14th Amendment, added to the Constitution in 1868, was never intended to grant citizenship to everyone born in the United States. Instead, the department argues that the clause was solely meant to give citizenship to former enslaved persons and their children after the Civil War.

However, the DOJ’s argument directly contradicts the federal law that codified the Citizenship Clause and the Supreme Court’s landmark 1898 decision in U.S. v. Wong Kim Ark. In that case, the court held that the Citizenship Clause applies to almost all people born in the U.S., regardless of their race or their parents’ citizenship status.

While asking the second question of the hearing, Chief Justice John Roberts described Solicitor General D. John Sauer’s defense of Trump’s executive order as “quirky.” 

Sauer had highlighted specific, well-established exceptions to birthright citizenship, such as the children of foreign ambassadors in the U.S. or of soldiers. However, Roberts said he was struggling to understand how those exceptions were relevant to the order’s denial of citizenship to children of noncitizen parents.

Sauer countered by claiming that the world has changed since the adoption of the 14th Amendment, claiming that “8 billion people are one plane ride away from having a child who’s a U.S. citizen.”

“It’s a new world; it’s the same Constitution,” Roberts responded.

Trump attended Wednesday’s hearing in person, making him the first sitting president to sit in on oral arguments. However, he stayed for only half of the arguments, leaving after Sauer’s opening defense before the court.

Trump’s attendance comes after he has relentlessly attacked justices, including those he appointed in his first term, for striking down his sweeping global tariffs in February.

“Dumb Judges and Justices will not a great Country make!” Trump wrote in a post Monday.

After the hearing, Trump again took to social media to falsely claim that the U.S. is the “only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” 

Over 30 other countries offer unconditional birthright citizenship, including Canada, Mexico and Brazil.

In addition to Roberts, Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh — all of whom were appointed by Trump — appeared skeptical of Sauer’s arguments.

Barrett pointed out that the DOJ’s argument had very little to do with the text of the Fourteenth Amendment.

“That’s not textual,” Barrett told Sauer. 

While he was answering her question about what the government would do with “foundlings” — or children with unknown parentage — Barrett cut Sauer off, saying, “Yeah, yeah, yeah — what about the Constitution?”

Kavanaugh noted that Sauer isn’t just asking the Supreme Court to effectively overturn case precedent. He’s also asking the court to overrule Congress, which included the text of the Citizenship Clause in the Immigration and Nationality Act (INA) of 1952 and previous iterations of that law. 

Kavanaugh also rejected the DOJ’s reliance on other countries’ citizenship processes in its arguments.

“We try to interpret American law with American precedent based on American history,” Kavanaugh said.

Justice Sonia Sotomayor said she believed the government, without explicitly saying it, was asking the court to overturn the landmark Wong Kim Ark ruling.

“You’re asking us to overrule Wong Kim Ark,” Sotomayor said. “You’re asking us to overrule that case.”

Sauer asserted the DOJ wasn’t asking that and that it actually agreed with the case and “much of its reasoning.” 

In fact, the solicitor general relied on the Wong Kim Ark on several occasions, even though the ruling contradicts the DOJ’s argument.

Justice Neil Gorsuch noted the contradiction. “I don’t know how much you want to rely on Wong Kim Ark,” he at one point told Sauer.

Justice Ketanji Brown Jackson pressed the solicitor general on how the federal government expected to carry out Trump’s order.

“How does this work? How are we determining when, or whether, a newborn child is a citizen of the United States?” Jackson asked. “Are we bringing pregnant women in for depositions to figure this out?”

Wednesday marked the second time the Supreme Court has held a hearing in challenges to Trump’s birthright citizenship order. Previously, the justices heard arguments over whether lower courts were correct in blocking Trump’s order through “nationwide” or “universal” injunctions. 

Used against past Republican and Democratic presidents alike, universal injunctions had prevented the government from enforcing a law, regulation, or policy across the entire U.S. — not just against the specific parties involved in the lawsuit, and not just in the districts where the injunctions are issued.

In a 6-3 ruling in June, the court determined that individual district court judges did not have the authority to bar enforcement of Trump’s order nationwide. However, the decision did not address the underlying constitutionality and merits of the order.

Following that ruling, civil rights and immigration organizations countered with several class-action lawsuits representing babies and expecting parents who would be affected by Trump’s order. 

In the case before the court, Trump v. Barbara, the DOJ is challenging a July 10 order from U.S. District Judge Joseph Laplante that barred the government from enforcing Trump’s order against thousands of families represented by the American Civil Liberties Union and its partners.