It is not surprising that the three liberal justices on the Supreme Court were antagonistic toward President Donald Trump’s Solicitor General John Sauer during oral argument in Trump v. Barbara on Wednesday, nor were some of the softballs tossed Sauer’s way by Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh.
But there were three key exchanges between Sauer and the other three justices that not only get to the heart of the legal questions involved, but also indicate that Trump will most likely lose this case when it is released later this June.
1. Sauer forfeits arguing the 14th Amendment
In a strategic decision he may later regret, Sauer chose not to challenge the Supreme Court’s 1898 holding in United States v. Wong Kim Ark that the child of two Chinese citizens born in San Francisco was a natural born citizen of the United States by virtue of the first clause of the 14th Amendment of the Constitution.
Instead, Sauer argued that since the majority decision repeatedly mentioned that Wong Kim Ark’s parents were “domiciled residents” of the United States when she was born, this limits the extension of natural born citizenship to those born of parents with both “lawful presence” in the country and an “intent to remain permanently.”
But as Justice Neil Gorsuch exposed, this understanding of what a “domiciled resident” was did not exist when the 14th Amendment was passed, and therefore cannot serve as the test for natural-born citizenship.
“Today, you can point to laws against immigration that are much more restrictive than they were in 1868 — we really didn’t have laws like that, that we do today, until maybe 1880,” Gorsuch said. “So, if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to anything, any immigration laws. There they were. And so why wouldn’t we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial?”
This question goes to the heart of Sauer’s case, since Trump’s birthright citizenship executive order turns entirely on whether or not someone is in the country legally or illegally.
Sauer then responded, “I would first cite Wong Kim Ark on that point because Wong Kim Ark says…”
And then Gorsuch interrupts him, “Well, I’m not sure how much you want to rely on Wong Kim Ark.”
Undeterred, Sauer continued, “But that — that statement — there is a statement in there that says so long as they are permitted to be here. So Wong Kim Ark — keep in mind that by the time they decide Wong Kim Ark in 1898…”
And Gorsuch cuts him off there, “I know, but you’re —, but that’s 1898. Now I’m looking at 1868…So it wouldn’t be the INA that would control whether you’re capable of having domicile; it would be whatever the law was in 1868.”
And that is the big hole in Sauer’s argument. He is trying to graft current standards about “legal” vs “illegal” immigration on to a distinction that just didn’t exist when the 14th Amendment was written.
2. What serves as ‘intent’ to classify domiciled residents?
Justice Amy Coney Barrett touched on a similar point later, noting that under Sauer’s “domiciled residents” theory, whether or not a child’s parents had “intent” to stay in the United States would be a contestable point, not a bright line rule.
“How would it work? How would you adjudicate these cases?” Barrett asked. “You’re not going to know at the time of birth for some people whether they have the intent to stay or not, including — including U.S. citizens, by the way. I mean, what if you have someone living in Norway with, you know, their husband and family, but is still a U.S. citizen, comes home, has her child here, and then goes back? How do we know whether the child is a U.S. citizen because the parent didn’t have an intent to stay?”
Sauer responded by saying that Trump’s executive order creates a new bright-line rule in the form of legality. One is either lawfully present in the United States or is not. But again, that distinction did not exist in 1868, when the 14th Amendment was passed. Sauer is again inserting a modern concept into an old debate.
3. Does birth tourism serve a point in Sauer’s argument?
Finally, Chief Justice John Roberts challenged why Sauer included arguments about birth tourism in his argument, noting that since this is a modern development, “you do agree that that has no impact on the legal analysis before us?”
To which Sauer responded, “We’re in a new world now, as Justice Alito pointed out, where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”
DEMOCRATS KEEP CHOOSING ILLEGAL IMMIGRANTS OVER AMERICANS
But Roberts was ready to flatten that argument: “Well, it’s a new world. But it’s the same Constitution.”
And that ultimately is why Trump is going to lose his birthright citizenship case. He is essentially trying to rewrite the 14th Amendment in light of subsequent developments in immigration law, but that is not how constitutional law works.
