Trump’s push to redefine American citizenship falls flat at Supreme Court

WASHINGTON (CN) — With President Donald Trump watching on, the Supreme Court on Wednesday seemed to close the door on the administration’s attempt to redefine American citizenship.

During the nearly two-hour argument session, the government pushed a new understanding of the 14th Amendment’s promise of birthright citizenship to support Trump’s bid to stymie immigration into the U.S.

“We’re in a new world now … where 8 billion people are one plane ride away from having a child that is a U.S. citizen,” U.S. Solicitor General John Sauer said.

But the justices appeared unconvinced such a reading comported with the text or original understanding of the amendment over 150 years after its enactment.

“While it’s a new world, it’s the same Constitution,” Chief Justice John Roberts, a George W. Bush appointee, said.

There is no recorded history of a president ever attending an oral argument session, but Trump chose to sit in the audience for Wednesday’s arguments. The president arrived shortly before the session started, flanked by Attorney General Pamela Bondi, Commerce Secretary Howard Lutnick and White House Counsel David Warrington.

Trump sat in the front row of the public session, giving him a direct line of sight to the justices but behind the reserved seating for arguing counsel, Justice Department attorneys, reporters, the justices’ guests and Supreme Court bar members.

In 1868, Congress ratified the 14th Amendment, declaring “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” According to the White House, the central question for birthright citizenship wasn’t “all persons born or naturalized in the United States,” but those “subject to the jurisdiction thereof” who were due 14th Amendment rights.

For over a century since then, the United States has granted citizenship to most people — with exceptions for children of diplomats and invading armies — born within its territorial boundaries with little fuss.

Then Trump claimed to erase birthright citizenship for the children of individuals who do not have legal status or those with temporary legal status in an executive order last year. He argued that immigrants without legal status and foreigners participating in “birth tourism” had degraded the meaning and value of American citizenship.

Justice Samuel Alito, another George W. Bush appointee, was the most supportive of Trump’s position. Since its enactment, the citizenship clause has included exceptions for the children of diplomats, invading enemy forces and Native Americans. Alito suggested that the modern problem of illegal immigration could be lumped in with one of these categories.

“There’s a general rule there, and you apply it to future applications,” Alito said. “And what we’re dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration.”

But nearly all of Alito’s colleagues appeared to disagree. Justice Elena Kagan, a Barack Obama appointee, said the amendment’s text didn’t support those arguments.

“The text of the clause does not support you,” Kagan told Sauer. “I think you’re sort of looking for some more technical, esoteric meaning. And then the question comes, okay, if the text doesn’t support you, is there’s a real history of people using it that way? But as far as I can tell, you’re using some pretty obscure sources to get to this concept.”

While the government has recognized citizenship rights for all individuals born on U.S. soil for over a century, Trump says his predecessors had it wrong. He said the 14th Amendment’s citizenship clause was a solution to a singular problem: Dred Scott v. Sandford. The Supreme Court held in the infamous 1857 ruling that formerly enslaved African Americans and their descendants were not citizens.

This theory, the White House argued, was supported by an 1884 case known as Elk v. Wilkins, which held that Native Americans born within the territory of the United States did not have birthright citizenship.

Kagan framed Trump’s supporting claims as a revisionist history.

The ACLU, representing a group of immigrant parents and their children, said the 14th Amendment set an unmovable floor to guarantee rights to all born on U.S. soil.

“We can’t take the current administration’s policy considerations into account to try to reengineer and radically reinterpret the original meaning of the 14th Amendment,” Cecillia Wang, an attorney with the ACLU, said.

While Trump’s attendance at oral arguments was novel, his arguments were not. Thirty years after the 14th Amendment’s ratification, a man born in San Francisco to two Chinese immigrants asked whether the citizenship clause’s promise applied to the children of foreign nationals.

In a case known as United States v. Wong Kim Ark,**the Supreme Court established parameters of what is known as jus soli, or the citizenship of children born in the United States to noncitizens.

But the government said the 14th Amendment was rooted in the parents’ domicile.

“The clause does not extend citizenship to the children of temporary visa holders or illegal aliens,” Sauer said. “Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile.”

Sauer said this was confirmed by Wong Kim Ark, citing a statement about his parents’ having permission to be in the United States.

The court seemed to disagree.

“I’m not sure you want to rely on Wong Kim Ark,” Justice Neil Gorsuch, a Trump appointee, told Sauer.

While modern laws create barriers to immigration, Gorsuch said no such concerns applied in 1868, when the 14th Amendment was written.

Several justices questioned why “domicile” appeared in the Wong Kim Ark opinion over a dozen times if it wasn’t relevant to determining citizenship rights. But Justice Ketanji Brown Jackson, a Joe Biden appointee, pointed to the historical context in which the case was decided.

The government said the children of lawful permanent residents would qualify for citizenship rights, tying their status to the parents’ intent to live in the U.S. But Justice Amy Coney Barrett, another Trump appointee, said the practical application of the executive order would be “messy,” noting there would likely be litigation over intent.

Jackson tried to determine when such proceedings would happen.

“Is this happening in delivery rooms?” Jackson asked. “Are we bringing pregnant women in for depositions?”

Although most of Trump’s arguments centered on the 14th Amendment, Congress codified the citizenship rights in 1940 and again in 1952 using identical language to the Constitution. Gorsuch said everyone accepted that the public understanding of citizenship rights during the enactment of the Immigration and Nationality Act was to all persons born on U.S. soil.

“It uses the same term as the citizenship clause, and one might have pretty good argument … that it should be understood to mean whatever it meant in 1868, but there was a lot of water over the dam between those two things,” Gorsuch said.

Despite the fanfare around Trump’s unprecedented attendance, he seemed to have little effect on the arguments. The court didn’t acknowledge his presence, and Trump listened silently until leaving after about an hour.

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