Will the Supreme Court Change the Meaning of “Subject to the Jurisdiction”?

The liberty principle for this Freedom Friday concerns birthright citizenship. The U.S. Supreme Court heard oral arguments today on a case challenging President Donald Trump’s executive order ending birthright citizenship. The court will most likely hand down their decision before the end of June. No one yet knows the decision, but the justices’ questions sound like the Trump administration will lose this case.

There are numerous articles about oral arguments today. One article was written by Lauren Irwin (reporting from outside the Supreme Court) and Emma Pitts (reporting from Salt Lake City) and published at the Deseret News. 

The Trump administration gave two main arguments for doing away with birthright citizenship or at least seeing substantial changes. The first argument is that “the citizenship clause in the 14^th Amendment has been misinterpreted for decades, asserting that just because a baby is born on U.S. soil should not automatically guarantee citizenship.

The administration’s second main argument was that “other countries do not allow birthright citizenship. Trump said that we are “the only country in the Word STUPID enough to allow ‘Birthright’ Citizenship!” There are plenty of countries that restrict birthright citizenship, but at least thirty-five countries have unrestricted birthright citizenship.

U.S. Solicitor General D. John Sauer began his argument by quoting the Fourteenth Amendment: “All persons born or naturalized 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.” He stated that the argued that “the federal government’s interpretation of ‘subject to the jurisdiction thereof’ means lawful, permanent allegiance to the U.S.” Under this meaning, “children born to temporary visitors or immigrants living illegally on U.S. soil” would not be granted automatic U.S. citizenship.

Sauer and Chief Justice John Roberts did a little jousting. Sauer said, “We’re in a new world now … where 8 billion people are one plane ride away from having a child who is a U.S. citizen” – something that the framers of the 14^th Amendment could not have imagined. Roberts responded, “It’s a new world, [but] It’s the same Constitution.”

Cecillia Wang, national legal director for the American Civil Liberties Union (ACLU) argued inside the court, while protesters rallied outside to oppose any changes to birthright citizenship.

Both sides cited a Supreme Court decision from 127 years ago, United States v. Wong Kim Ark, a decision “in which the court confirmed and clarified the 14^th Amendment.” Wang accused Sauer of trying to overturn the Wong ruling. Sauer responded that he was not trying to overturn the decision but to “reinterpret it or narrow it down so that it does not control the outcome of the justices’ current decision.”

Questions from the justices over the government’s current interpretation of the Wong case showed skepticism of the administration’s argument. Justice Neil Gorsuch went as far as to say that Sauer shouldn’t be invoking it in his argument.

If Wong has been understood for over 100 years to mean broad birthright citizenship, then narrowing it now seems functionally equivalent to overturning it, the justices said. Sauer disagreed….

Justice Samuel Alito was arguably the most aggressive when questioning ACLU’s interpretation of the Wong Kim Ark case.

“We’ve heard a lot of talk about Wong Kim Ark, and you dismiss the use of the word domicile in it,” Alito said. “It appears in the opinion 20 different times – including in the question presented and in the actual legal holding – and the government doesn’t want it to be overruled because it relies on, willing to rely on that particular fact … isn’t it at least something to be concerned about?”

Wang acknowledged the word but said that domicile was just one of the facts of the case, not the legal rule. The actual rule, she said, states that citizenship does not depend on domicile at all.

Alito did not seem satisfied with her response. “I might agree with you if domicile had simply been sprinkled in the opinion,” he said.

The justices are expected to issue a decision on the case by June. It’s unclear how the justices will ultimately rule, but after arguments Wednesday, they appeared to show skepticism of the administration’s argument for changing the interpretation of the Constitution.

President Trump made history on Wednesday as he sat in the courtroom’s public gallery to listen to arguments in the case. Trump arrived with U.S. Attorney General Pam Bondi and stayed in the courtroom for an hour before leaving.