SCOTUS hears birthright citizenship arguments

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Hey there, it's the NPR Politics Podcast. I'm Miles Parks. I cover voting. I'm Carrie Johnson. I cover the Supreme Court and Justice. I'm Nina Totenberg. and I cover the Supreme Court. And I'm Domenico Montanaro, senior political editor and correspondent. And today on the show, a major court case over the future of citizenship in this country. For more than two hours, the Supreme Court discussed if all babies born in the United States,

regardless of their parents' status, are automatically granted citizenship. U.S. Solicitor General D. John Sauer began by laying out the thrust of his argument. Mr. Chief Justice, and may it please the court, the citizenship clause was adopted. it just after the Civil War to grant citizenship to the newly freed slaves and their children whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance. Throughout the arguments, though, justice has returned to that concept again and again

with skepticism. Justice Neil Gorsuch pressed the matter in exchange with John Sauer. Whose domicile matters? I mean, it's not the child. obviously. It's the parents you'd have us focus on. And, you know, what if, is it the husband? Is it the wife? What if they're unmarried? Who's domicile? Well, in the executive order, it draws a distinction between the mother and the father. That's really the mother's domicile. I think that would matter. Well, but 1868 matters, you're telling us. So what's the answer?

The 1868 sources talk about parental. I'm not aware of them drugging to syncheting between mother or father, but they say the domicile of the child follows the domicile of the parents. In her argument, Cecilia, Leah Wong, the national legal director for the ACLU, said the Trump administration's interpretation would up into the Constitution and the lives of millions of people. The executive order fails on all those counts. Swaths of American laws would be rendered senseless. Thousands of American babies will immediately lose their citizenship. And if you credit the government's theory, the citizenship of millions of Americans,

past, present and future, could be called into question. All of this tells us the government's theory is wrong. One of the biggest moments came when Chief Justice John Roberts directly rebuked the government's argument. We're in a new world now, as Samuel Alito pointed out to, where 8 billion people are one plane right away from having a child as a U.S. citizen. Well, it's a new world. It's the same Constitution. I want to bring in now NPR Supreme Court correspondent Kerry Johnson, senior political editor and correspondent Dominico Montanaro, and joining us from the Supreme Court is NPR Legal Affairs correspondent Nina Totenberg. Hi to you all. Hi there.

Hey. So let's start with the main takeaways. Nina, let's start with you. Well, you know, with the President of the United States, for the first time ever, as far as we know, in the courtroom, and sitting in the audience, I thought the court actually went out of its way to not beat the crap out of any of the council. And to ask very probing questions without completely tipping their hands at the same. time you heard this constant refrain of this is pretty clearly what the Constitution says. I know it may have problems today, policy problems, but it is what the Constitution says. And that is sort of the way the court, because this is a very originalist court, it doesn't

think it's a living constitution. And in the same way, it believes, for example, that there are, you know, there are, you quite severe restrictions on what kinds of regulations there can be of firearms, of guns. And that's the second amendment to the Constitution, but it's also an amendment to the Constitution, much like the 14th Amendment was an amendment to the Constitution. Tell me a little bit more. One of the most unprecedented aspects of these arguments is the fact that the President was actually there. Can you tell me a little bit more about his reaction throughout all of this?

how that impacted things? Well, I have to tell you in truth, that sitting in the press section, I don't think any of us, except maybe one or two people on the far end, could see the president at all. And the White House had imposed a new restriction on how we cover the court, which is they told us to sit down. Before the court started, the proceeding started, the guards told us to sit down. And I very clearly said, you know, this is our job, is to look and see what's going on in this courtroom, at least before the proceedings begin. And they said, well, I'm sorry, this isn't our decision. This is a new rule that the White House imposed on us. So I didn't see anything of the president. But part of that is, of course, also that I'm short. Okay. Well,

getting into the arguments, Carrie, I want to go back to what we heard from the chief justice, this moment where he says, it's a new world, but it's the same constitution. That was a moment where I found myself my eyebrows raised when I heard it. What was your reaction to that? Yeah, a number of the justices at the center of the court from the Chief Justice John Roberts, to Neil Gorsuch and other Trump appointee, to Elena Kagan, an Obama appointee, raised some questions about the Trump administration's case. John Roberts said their arguments in some ways were quirky and idiosyncratic. Elena Kagan called them esoteric. Neil Gorsuch talked about how the Solicitor General John Sauer was reaching to sources in Roman law to make his argument that the 14th Amendment didn't mean what it says.

And I think all of those things were significant. Also, you know, the Trump administration has been advancing this argument that people are coming to the U.S., people from Russia and China to have babies here. And that could pose some kind of national security threat or a threat to allegiance to the United States. John Roberts basically said, you know, we may have a new social problem here in that, but we don't have a new constitution. And that's an issue that other justices came back to as well. Elena Kagan in particular basically said, I understand the policy considerations that this administration is putting forth, but it's not maybe enough, or we would need a tremendous magnitude of evidence and argument to turn away from birthright citizenship, which this country has basically understood to mean something for 160 years or so. Yeah, let's listen to a little bit more of Chief Justice

John Roberts talking about the skepticism of John Sauer's argument. You obviously put a lot of weight on subject to the jurisdiction thereof. But the examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to the whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples. Domenico, what did you make of how the justices received the Solicitor General's argument? Yeah, I thought it was interesting that you had And a majority of the Supreme Court's justices peppering the Solicitor General D. John Sauer

with really skeptical questions about the Trump administration's position about birthright citizenship. I mean, I'm going to be watching some of these justices for what they think specifically, you know, what their interpretation winds up being specifically on things like bloodline versus born in the country. Soil, Justice Amy Coney Barrett specifically was saying, well, why didn't you? the justice, why didn't the framers, you know, make it more so that it was about parental dissent as opposed to being born on the soil of the United States? Brett Kavanaugh, for example, also asked about the language differences between the 1866 Civil Rights Act and the 1868 14th Amendment, which is really what's at issue in this case, talking about the language that in the 1866 Act saying that they didn't want people to be citizens who,

are, quote, not subject to any foreign power, right? So that difference, the ACLU's attorney, Cecilia Wong, noted was because of the exceptions to the birthright citizenship, which is traditionally thought to be things like ambassadors in the country and not having those babies born given citizenship, which they're not allowed to, right? And Brett Kavanaugh seemed to acknowledge in the second round of questioning to Wong when he was pressing her on this, because she said that the intent was the same for the 1866 laws, the 1868 law, that, well, if the language was different, then history might be different. Nina, you have watched countless of these sort of arguments. What stood out to you about the justices' questions? Well, what really stood out to me was that they were on their best behavior. They really didn't beat up counsel a lot.

you know, what you see today as skeptical questions, which, you know, we always write this intro, this introduction to a piece that says the Supreme Court appeared skeptical today or ready to reverse or whatever. Certainly when you look at the body of two hours plus argument, you can see that where the wind is blowing if it doesn't, you know, if it's indicative, on the other other hand, none of the justices were really, they didn't get in big fights with either counsel. And it helped also that there were only two. Sometimes we have several and it gets very complicated. But here we had Cecilia Wong representing the ACLU and the clients of the ACLU. And then we had the government's chief advocate, John Sauer, who, by the way, was,

President Trump's personal lawyer before he became Solicitor General. And then we had sitting in the audience was the President of the United States. And I think that the justices were tough. It's true on both sides. But they were very, did it in a nicer way than they frequently do. Let's put it that way. I guess that's the nicest thing I could say about it. Or most interesting thing.

It could have been, if you were either John Sauer or Cecilia Wong, and you think they gave you a hard time, it could have been so much worse. I mean, Carrie, there was this moment where Justice Sonia Sotomayor kind of started playing out some of the real world implications of what could happen if a major change is ruled by the court on birthright citizenship. Can you talk a little bit about that or how the actual real world impacts came up during these. arguments. Trump's day one executive order, of course, only dealt with babies born 30 days after the date of that order. And today in the arguments, the solicitor General John Sauer, once again, asked for relief that would be prospective. In other words, this order wouldn't go back and take away the citizenship of babies already born in the U.S. But just a Sotomayor really raised questions about that. She basically said the argument, the import of the argument that Trump administration is

making would allow somebody to go back and potentially denaturalize lots and lots of people who are already born in this country. And, you know, that would be a tremendous, tremendous change and in a real upheaval. In another passage, other justices asked about, you know, how that could play out moving forward. And, you know, we already know from estimates that were put forward in this case that about 250,000 babies are born annually that this could apply to as many as 5 million over the next 20 years. But if the administration wins here, which seems a little hard to imagine based on the scope of the argument we just heard, that this administration or a future one could go back and take some very aggressive steps that would apply to people who

were born here sometimes a long time ago. Yes, this is a very conservative. of court, but repeatedly in the lower courts now, we're seeing some defiance by the Justice Department and the Trump administration saying, well, we're not going to do that, even though the lower courts are telling us to do that. And when that is the background, and as this case comes to an argument today, it is, you know, you could see the justices trying to figure out, well, as Carrie said, okay, so. So you've got this rule that's going to be prospective now, but there's nothing that says here that you can't change that if we rule for you.

It may not be prospective in two or three years. And that's a really good example of, I think, the sort of the atmospherics, the subtext of what's going on in the courtroom and likely to go on. in the conference that we will not know anything about until we get an opinion. You know, as a political reporter, I will say that aside from the president being there for whatever his intent was, whether it was to learn what the arguments are, or to apply pressure to some of the justices who he appointed to this court to show himself, I thought is notable that, you know, when we look at going into this, the polling is really unclear on where

people stand on whether or not they want the practice to continue that all persons, all babies get citizenship regardless of a parent's legal status. And I thought that in these arguments, you know, Brett Kavanaugh sort of talked about public opinion in some respects as not really legally relevant, right? He said that, you know, whether other countries have it or not, which is one of the arguments that the Trump administration makes, that D. John Sauer, the Solicitor General, had brought up. He said, I'm not seeing the relevance as a legal interpretive matter. And John Sauer, for his credit, to his credit, agreed with that. It's not relevant, but it's relevant to what happens outside. And what you're seeing outside of the court are big crowds, people who have strong feelings and passions about this that are also relevant to, one, President Trump, but also, two, what it means to be American and what the redefinition is of what this country is going to stand for.

as far as who belongs here. And because at the time that this 14th Amendment was passed, as some of the justices and Cecilia Wong from the ACLU had noted, you know, this was a time when the United States was still growing and needed more people and needed to, you know, kind of go out into the other parts of the country and build up. That's a different, this is a different United States now than it was then. The question is, can you change that through the Supreme Court or do you change that through Congress?

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And we're back. I feel like it's really hard to grasp how exactly the public feels about something that feels so abstract. I mean, this came up during the hearing, Carrie, in terms of when you actually dig down, if this thing were overturned, people would feel it in ways that might even be hard to grasp at this point.

Justice Ketanji Brown Jackson really put this very boldly. She asked what would happen if there were a dispute about the nationality or citizenship of a new baby. She asked the Solicitor General, are we going to give depositions to pregnant moms? And what if the administration or somebody in the hospital concludes that this baby is, is not a citizen, how does the, how do the parents appeal that? And the solicitor general basically said after the fact there would be some kind of appeal process. But the import of her question was, how are new parents who have their hands more than full going to be in a position to appeal some kind of determination made by some authority? And you know, one of the main issues here is

how workable it would be if this Supreme Court decides to overturn something that's been basically common understanding for over 150 years, understanding in how people have behaved toward new parents and infants, understanding in the precedent of the law, understanding in the 14th Amendment itself, and understanding in a very key 1898 Supreme Court case that got mentioned many times, Juan Kim Mark. And that, you know, it's interesting because Brett Kavanaugh, in the previous case where birthright citizenship was a tangential issue that the court didn't get to, but he did discuss it with John Sauer a year ago and said to John Sauer, how will we know that a baby in one state or in one hospital or in one village is not deserving of birthright citizenship and someplace else they're not deserving of birthright citizenship? How will we know if their parents are legally in the country?

How will we know if they're domiciled? How will we know if they believe themselves to be legally in the country? even if you don't think they're legally in the country. And John Sauer, the Solicitor General, said in response to that last year, he said, well, we'd have to, you know, there are people would have to figure that out after the fact, which is a very unsatisfactory answer, actually. I thought this idea of legally domiciled was really at the key of this entire argument. And, you know, if you were to keyword, how many times the word domicile got used, there'd be many, right? And I think that this is an interesting point because what does it mean to be legally domiciled, right? Like, what does it mean, you know, it's not necessarily citizenship or bloodline, right?

So does it mean somebody who's been in the country for decades, et cetera? It's very unclear. That's the point because even if you assume that Juan Kim Arc's parents came here legally, there's no, that you didn't have to produce documents in those days. They were coming. we don't know if they owned the business that they ran. We know remarkably little about them. They went back to China, I think probably because they felt under siege,

because that was that period of time in which the Chinese Exclusion Act was about to pass and Chinese had no rights, basically, other than to be here if they're already here. So there's very little we know about Juan Kim Mark's parents and where their so-called allegiance really was. But they never became citizens. They were, according to the Wan Kim Ark Court that ruled on that, they were legal domiciles. But as far as we know, there was no paper that made them legal. It's not like today. And just to kind of underscore this fact, Wang Kim Ark was at the center of the kind of most important birthright citizenship case that's come before the Supreme Court in the late 1800s.

And since then, it's been considered settled law that birthright citizenship, was the law of the land. The ACLU's Cecilia Wong referenced that. The framers of the 14th Amendment meant to have a universal common law rule of citizenship subject to a closed set of exceptions. And we can't take the current administrations policy considerations into account to try to re-engineer and radically reinterpret the original meaning of the 14th Amendment. Carrie, were there examples that popped up that showed, I guess, just how much this has been not an issue over the last century? Well, one of the main examples was that Congress actually acted twice in 1940 and 1952 using the same language that's in the 14th

Amendment. And one of the interesting questions that Cecilia Wong from the ACU got was, from Justice Brett Kavanaugh was basically, how do you want to win this case? If we agree with you, do we just basically affirm that Juan Kim Arc precedent from 1898? Or do we make a big statement about the Constitution? Or do we rule on the basis of those two prior enacted laws by Congress in 1940 and 1952? And when you're an advocate arguing before the Supreme Court and a justice asks you basically how you want to win, you're probably feeling pretty good about yourself. And a narrow path, a narrow path is usually what this court wants to take.

And they could just decide to affirm Juan Kim Arc, as Brett Kavanaugh said, and keep it short and sweet. Domenico, this was obviously an important case for President Trump shown by the fact that he showed up at the court today. How much is at stake for him politically with how the court decides here? Well, I think that's notable that he was there from a legacy standpoint and from what he values, right? because he said that he talked about potentially maybe wanting to go to the tariffs case at the Supreme Court. He ultimately decided against doing that. The tariffs case clearly important to him, right? I mean, he uses tariffs as leverage for foreign policy. He uses it for everything that you can think of saying that's going to generate revenue, et cetera, et cetera. But what's the thing that he finds most important that he had to be at the Supreme Court for?

it's about immigration and not just about immigration, but about again, who should be American, who in the future as going forward? What will that mean? Because of the demographic shifts in this country and the change overwhelmingly that we've seen over the last 30 years, well, Latinos in particular, the largest growing immigrant group have meant that the white majority in the country is soon to be fading and going away. Right now, it's only about 52, 53 percent white majority in the country, already those under 18 are a majority minority, a majority non-white. And so even if you built a wall and you said that anybody who was born here to immigrants in the country illegally could not get citizenship, there would still be a white

minority in this country in the coming decades. And that is something that has been at the, you know, has been at the heart of what the conservatives and right wing hard. liners in this country have wanted to get rid of because this change, they feel like, is shifting the country in a way that they don't think is what America should be. Nina, when do we expect to get an opinion in this case? Well, I guess at the end of June or conceivably the first couple of days of July, this is pretty late to be arguing a big case like this. But on the other hand, this court and the people on it have had a lot of time to think about

it. Last year, they could have decided it, but the government very cleverly decided it didn't want to ask the court to decide this case yet. And that meant that it's been churning around for another year. And presumably they've thought about it, but there's only really two months left to the term. To maybe three you could count, April, May, June, three months. and that's not that so this I think this will come really in late June. Okay, we can leave it there for today. A brief note, President Trump is expected to address the nation tonight at 9 p.m. Eastern

time regarding the war in Iran. You can find live coverage of that speech on the NPR app at NPR.org and on some member stations. We'll be back in your feed later tonight with analysis and reaction to the speech. I'm Miles Parks. I cover voting. I'm Carrie Johnson. I cover the Supreme Court in justice. I'm Nina Totenberg. and I cover the courts. And I'm Domenico Montanaro,

senior political editor and correspondent. And thank you for listening to the NPR Politics Podcast.

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