Supreme Court Appears Divided Over Trump’s Birthright Citizenship Order

The definition of “domicile” as it relates to the legal status of the parents of children born in America appears to be a key issue for Supreme Court justices mulling whether President Trump’s executive order limiting birthright citizenship is constitutional.Several justices raised questions over the concept to both sides during more than two hours of oral arguments on Wednesday that featured an unprecedented appearance by a sitting president. Mr. Trump stayed for the government’s argument but left as the opposition offered its case.The case, Trump v. Barbara, hinges on the Citizenship Clause of the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” are citizens.Justice Clarence Thomas started the questioning by asking the Trump administration’s solicitor general, John Sauer, “How does the citizenship clause respond specifically to Dred Scott?” The court declared, in that infamous 1857 decision, that black people could never be American citizens.Mr. Sauer responded that the Dred Scott decision was one of the biggest miscarriages of justice in the court’s history. “It’s very clear the court in all its early cases in interpreting the 14th Amendment said the one pervading purpose, the one object of the Citizenship Clause, is to overrule Dred Scott and establish the citizenship of the freed slaves,” Mr. Sauer said.The Trump administration claims that the 14th Amendment only applied to children of freed slaves after the Civil War and not all children born on American soil. Several justices appeared skeptical of the government position that birthright citizenship has been misinterpreted for 140 years. Chief Justice John Roberts, during his questions, referred to Mr. Sauer’s historical references to support his case as “quirky” and did not deal with large groups of people who could be affected by any change in interpretation of birthright citizenship. Justice Elena Kagan noted that the government’s brief deals extensively with temporary visitors but less so about undocumented migrants who are living in the country.“The text of the clause doesn’t support you,” Justice Kagan told Mr. Sauer. She later referred to the government’s interpretation of birthright citizenship as “revisionist.”Near the end of presenting his case, Mr. Sauer said the government was “not asking you to overrule Wong Kim Ark,” the 1898 Supreme Court decision which granted citizenship to children born in the country to foreign parents.The national legal director of the ACLU, Cecillia Wang, started her argument against the Trump Administration by saying its support of that decision was fatal to their case.Justice Brett Kavanaugh said that if justices agree with Ms. Wang on how to read the Wong Kim Ark case then “you win” and the decision could be “a short opinion.”“Yes,” Ms. Wang responded to laughter in the courtroom.Much as was the case with Mr. Sauer, Ms. Wang faced a battery of tough questions from justices. Justice Neil Gorsuch told Ms. Wang the legal community’s understanding of Wong Kim Ark is “a mess”.Justice Samuel Alito appeared to be most open to accepting the Trump administration’s argument that the decision should be interpreted to only apply to children born to parents with permanent legal status and exclude illegal immigrants and people visiting on temporary visas.President Trump signed his executive order on the first day of his administration that prohibited citizenship for babies of parents who are not American citizens or were in the country illegally. A federal judge put the order on hold and it has never been implemented.A small crowd in support of the ACLU’s case rallied outside the court during the arguments. Ms. Wang addressed them after exiting the building, saying she was “confident” the justices would block the administration’s attempt to “radically rewrite” the 14th Amendment.A decision in the case is expected by early July.

Supreme Court Appears Divided Over Trump’s Birthright Citizenship Order

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