The Constitution Is Clear on Birthright Citizenship. The Question Is Whether the Court Will Be

 

Sometimes showing up is a mistake. Donald Trump made that mistake today, becoming the first president to sit in on an oral argument before the United States Supreme Court, which heard the birthright citizenship case, Trump v. Barbara, today. He only made it through his side of the case, leaving midway through the argument shortly after the ACLU’s Cecilia Wang began, which just isn’t done.

Trump showed just how poorly he understands the dynamic with the Supreme Court. These aren’t people who need his approval. “Thank you again. Thank you again. I won't forget it”—the words Trump uttered to Chief Justice John Roberts at the State of the Union Address in 2025—make the justices cringe. This is why they have life tenure, so they can rule as they will, not as the person or the party who put them on the bench wants them to. We all understand the times we live in and the concerns about some members of this Court. 

But Trump’s brazen attempt to intimidate the Justices is the worst possible way he could go about it, and it showed. Trump can attack justices in his social media posts like he did over the weekend (“The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!). ‘Dumb Judges and Justices will not a great Country make!’”) and again today (below), but ultimately, there’s not much he can do if he doesn’t like their decisions. They know that. And the birthright citizenship case is this term’s nadir, a train wreck of a case whose weaknesses were on full display today.

Solicitor General D. John Sauer’s opener: Birthright citizenship is about slaves, not illegal aliens. Children of temporary visitors aren’t citizens. “Unrestricted birthright citizenship” contradicts practice in other countries.

Sort of.

The Fourteenth Amendment, which, if you recall our earlier conversations, is the constitutional source of birthright citizenship, was the fix for the injustice worked by the Dred Scott case. Its rule is clear: People born in the United States are citizens, with rare exceptions for people like babies born to foreign diplomats who aren’t subject to U.S. law. 

The Court underscored that principle in United States v. Wong Kim Ark in 1898, holding that a child born in the United States to non-citizen parents automatically acquires U.S. citizenship at birth. That’s been the state of the law and our understanding of it ever since.

Donald Trump made his views on the subject plain before he had even returned to the White House: “We’re going to end that because it’s ridiculous.” That’s what he told NBC’s Kristen Welker during an interview for Meet the Press. The executive order he issued upon returning to office is inconsistent with the plain language of the 14^th Amendment, which the Supreme Court has always interpreted as doing precisely what its language suggests: guaranteeing citizenship to people born in this country.

Every serious legal challenge since then has run into the same wall: the Constitution. This one seems headed in that direction too. And Trump did nothing to improve the case by showing up in such a rank, performative manner. He could have sat in the Oval Office and listened to the argument online like the rest of us.

As for Sauer’s argument that birthright citizenship “contradicts” how other countries handle it, it took me a moment to pick my jaw up off the floor after that claim. Did the ultra-conservative Solicitor General of the United States really encourage the justices to take into account other countries’ laws that conflict with our own? That’s strictly verboten in Federalist Society parlance. What’s next? An appeal to Sharia Law? Gasp. (Seriously, I just can’t overstate how hypocritical this is).

Conservative justices, including Antonin Scalia, Clarence Thomas, and Samuel Alito, have all strongly opposed using foreign law to interpret the Constitution, rejecting it as undercutting our democratic sovereignty. 

Conservative justices objected to the use of foreign precedents when they were the dissenters in cases involving the death penalty for juveniles and laws regulating sexual conduct. But now, and in a case where it’s the opposite of U.S. law, the Solicitor General felt free to call upon foreign precedent.

Chief Justice Roberts at his confirmation hearing: “In foreign law you can find anything you want,” Chief Justice Roberts said. “Looking at foreign law for support is like looking out over a crowd and picking out your friends.” Justice Alito at his: “We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.”

I’m belaboring this relatively minor point from the argument to show just how far this Justice Department, including the Solicitor General’s office, which is uniquely powerful and traditionally independent, has gone off the rails in service of what Donald Trump wants. Sauer’s willingness to wade in with this argument shows how willing this Justice Department is to contort itself into pretzel logic in service of Trump and abandon long-established conservative beliefs. But it’s also unlikely that this argument scored points with any of the justices who weren’t already inclined to go along with it no matter how contrary to existing law. It was a show for the audience of one who reclined in the courtroom, where he didn’t belong.

And in any event, isn’t the point that birthright citizenship is uniquely American and helps define our multicultural democracy and its values? We are a country like none other, fueled by immigrants and immigration. Birthright citizenship is part of our unique promise, a bright promise, not something to be afraid of, at least for those of us who welcome new people, new ideas, and new infusions of culture, food, and traditions. People who aren’t afraid of the promise displayed on the Statue of Liberty from Emma Lazarus’ 1883 poem:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

Justice Gorsuch worried about the difficulty of determining each person’s immigration status based on indeterminate factors and about whether Congress could further restrict who qualifies for citizenship in the future. Justice Barrett was concerned about the fate of children born and raised here with no ability to influence their place of birth. Justice Alito asked about the “humanitarian” issues that would arise for people who have lived their lives here.

There was this exchange:

JUSTICE GORSUCH: “Do you think Native Americans today are birthright citizens under your test?”

SOLICITOR GENERAL SAUER: “Uhh... I think so? I have to think that through.”

And this one:

SAUER: “We’re in a new world where 8 billion people are one plane ride away from having a child who’s a US citizen.”

CHIEF JUSTICE ROBERTS: “It’s a new world. It’s the same Constitution.”

You get the idea of how the argument went. It was a bad day for the government, but it was their own fault in insisting on a case that is contrary to law and that no solicitor general exercising independent judgment would have allowed to go forward.

At the end of her argument for keeping birthright citizenship as it now exists, Justice Kavanaugh asked Wang about her path to victory: “I think Mr. Sauer acknowledged that, and you mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, then you win. So that could be a -- if we did agree with you on Wong Kim Ark, that could be just a short opinion, right, that says the better reading is Respondents' reading, government doesn't ask us to overrule, affirmed? Is that …”

Wang responded, “Yes.”

This is how experienced Supreme Court advocates do it. The answer was perfect.

Kavanaugh continued, pointing out that Wang made one argument based on a statute and one based on the Constitution. He asked Wang which of her arguments the Court should rule on, pointing out that the Court typically rules on a statutory basis when that is sufficient to decide a case, rather than interpreting the Constitution, which it does only when necessary.

Kavanaugh: “Why would we address the constitutional issue…our usual practice, as you're well aware, of course, is to resolve things on statutory grounds and -- and not to do a constitutional ground.”

Wang: “Sure. You know, I think we obviously have these two paths to a win here. We're happy to win on either or both of them.”

There was laughter in the courtroom. It’s hard to predict with this Court, but the President’s presence today didn’t make his case any stronger. It may have been the final nail in the coffin.

You can read the full transcript from the argument here.

Cases can turn on oral argument—but the coverage doesn’t always capture what actually mattered in the room. I try to walk you through what happened and explain how it landed, based on years of arguing cases in the Courts of Appeals. If you appreciate this kind of analysis, subscribe to Civil Discourse and support independent journalism that isn’t afraid to take the administration on when it matters the most.

We’re in this together,

Joyce Vance