Supreme Court Justice Amy Coney Barrett on Wednesday questioned Solicitor General D. John Sauer on what she dubbed the potentially messy applications of President Trump's executive order on birthright citizenship.
The Trump administration's Day 1 executive order would limit birthright citizenship to those born in the U.S. with at least one parent who is a citizen or has permanent legal status. The administration argues the phrase subject to the jurisdiction thereof in the 14th Amendment allows for narrower interpretation.
What the Left Is Saying
Civil rights groups and Democratic lawmakers have criticized the executive order as an unconstitutional interpretation of the 14th Amendment. They argue that birthright citizenship has been firmly established for over a century and that the order represents executive overreach.
Progressive legal scholars note that the 14th Amendment was specifically designed to grant citizenship to children of formerly enslaved people and their descendants, rejecting any narrowing of its scope. They argue the order would create a permanent underclass of individuals without citizenship rights.
What the Right Is Saying
The Trump administration argues that the executive order falls within presidential authority on immigration matters. Solicitor General Sauer told the court that the order turns on objectively verifiable criteria: whether parents are lawfully present, temporarily present, or have illegal status.
Conservative legal scholars support the administration's interpretation, pointing to existing exceptions in birthright citizenship law. They note that the 14th Amendment has always included specific exclusions, such as children of diplomats born on U.S. soil.
What the Numbers Show
Under Section 1401(f) of immigration law, a child of unknown parentage found in the U.S. while under age five is granted citizenship until it is shown prior to turning 21 that they were not born in the U.S. This provision addresses one of the scenarios Barrett raised.
This marks the first known instance of a sitting president attending oral arguments before the Supreme Court. Trump was present during Wednesday's hearing.
Chief Justice John Roberts questioned how the administration could expand restrictions from narrow exceptions like diplomats to the broader group of children born to immigrants without legal status, saying he was not sure how you can get to that big group from such tiny and sort of idiosyncratic examples.
The Bottom Line
The practical implementation challenges raised by Justice Barrett highlight the complexity of enforcing the executive order. Her questions about foundlings, parental intent to stay, and citizenship status of U.S. citizens living abroad underscore the difficulty of applying categorical rules to individual cases.
Justices appointed by both Republican and Democratic presidents expressed skepticism about the legality of the executive order. A ruling is expected later this term, with significant implications for presidential authority over citizenship and immigration policy.