The odds of there being five votes for the administration’s position appear pretty distant.
I rounded up the arguments here and here this morning on the birthright citizenship case, Trump v. Barbara, that was argued this morning. It was expected to be hard sledding for Solicitor General D. John Sauer, and it was. While some of the justices, notably Samuel Alito, had tough questions for ACLU lawyer Cecillia Wang as well, there wasn’t anyone unambiguously taking Sauer’s side. And out of what we might think of as the Court’s “center” these days — Chief Justice John Roberts and Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh — it was hard to find much sympathy for Sauer, except maybe from Kavanaugh, who was cagey about his thinking. When Sauer noted the differences in travel and the legal regimes since 1868 and added, “It’s a new world,” he drew a pithy rejoinder from Roberts: “It’s a new world, but it’s the same Constitution.”
Oral argument has a way of narrowing disputes. On the one hand, Sauer conceded that he is not asking the Court to overturn Wong Kim Ark, which significantly limits the swing-for-the-fences appeal of his argument for those who think that case was wrongly reasoned from the start. Sauer’s argument is that Wong Kim Ark was premised on the U.S. “domicile” of Wong Kim Ark’s noncitizen parents, but that doesn’t get him around the heavy reliance on the English common law place-of-birth tradition in the opinion. On the other hand, while Kavanaugh and a few other justices asked questions about the statutory argument, there seemed to be little appetite for using that as an excuse to avoid the constitutional questions. That bodes well for getting a constitutional decision on these issues — if not one the administration likes.
Some of the justices, most explicitly Elena Kagan, picked up on the extent to which Sauer’s brief, his themes at the argument, and the evidence he cited from 19th-century sources were much more focused on the children of transients than on the children of illegal aliens — exactly the divide I noted before the argument. The move that Sauer makes to turn “lawful domicile” into the test for who is subject to U.S. jurisdiction by saying that illegal aliens “lack the legal capacity to form” legal residence here is a modern engraftment onto the 1866–68 debates, which discuss nothing of the sort. In fact — as Justice Barrett noted — if we move from domicile to a theory focused on legal competence to form an allegiance, we get into some of the logic followed by those of the antebellum defenders of Dred Scott, who argued that slaves had no legal capacity to be citizens. Barrett carried that analogy into modern times, asking about the children of people who were trafficked into the country against their will and therefore didn’t intend to violate American law to be here. Barrett, Sonia Sotomayor, and Ketanji Brown Jackson all worried about the administrability of anything but what Barrett characterized as the “bright-line rules” of either citizenship by birth on the soil, or citizenship by descent from parents.
Sauer struggled with the limits of his argument, which at times appeared to suggest that any child of noncitizens inherits a parent’s divided loyalties. Justice Alito offered the friendly (to Sauer) hypothetical point that the Iranian government would consider that a child of an illegal Iranian immigrant in the U.S. still owes military service to Iran. But 19th-century Americans were well familiar with foreign sovereigns who made expansive claims on people who came here and whom we regarded as ours. On the other hand, Wang seemed to strain her arguments about the children of illegal aliens in order to stretch their logic to cover the children of transients. While the modern facts won’t be decisive, Roberts quizzed Sauer on exactly how much birth tourism there is these days. Sauer also ran into a wall of skepticism in his effort to convince the Court that a ruling on the constitutional requirements for citizenship could somehow be made solely prospective, without denaturalizing and deporting a bunch of people who have lived here since birth as citizens. Justice Sotomayor cited examples of that happening in past citizenship-law cases. Even Alito sounded some notes very sympathetic to the view that illegal aliens and their children had made a home here because of the fact that our immigration system has been “ineffectively, and at times unenthusiastically” enforced by federal officials.
Everyone agrees that the citizenship clause of the 14th Amendment has exceptions to birthright citizenship that are not in the text: children of Native Americans and of foreign ambassadors, sovereigns, and occupying armies. (Roberts described these as “quirky” exceptions that he’d be uncomfortable extending to a broad category such as the children of illegal aliens.) There was much discussion of whether that’s an exclusive list, or whether modern analogies could add to it. But several constitutional rights have long-established exceptions or exclusions that aren’t in the text but arise from history and tradition preceding enactment — from the Bruen test for the right to bear arms, to the exclusion of categories such as obscenity and defamation from the freedom of speech, to the 13th Amendment’s traditional exclusion of the military draft from its ban on involuntary servitude (even though that amendment has one textual exception as well, for convict labor). It would be a strange departure from the usual practice for the Court not to treat non-textual exceptions or exclusions as limited to those recognized in the law at the time of enactment.
I would not try to handicap the final vote. But the odds of there being five votes for the administration’s entire position without even overturning Wong Kim Ark appear pretty distant. It would not surprise me if there is more division on the issue of the children of transients — but that opens its own can of worms. Wong Kim Ark’s noncitizen Chinese parents were in California for two decades. Julia Lynch, the plaintiff in the landmark 1844 case of Lynch v. Clarke, was the child of an Irish couple who lived in New York for four years, and she was found to be a citizen by birth. Is a four-year stay a sojourn or a new residence? How long is long enough?