Trump v Supreme Court: The battle over birthright citizenship

0:00This BBC podcast is supported by ads outside the UK.

0:30business needs in one place, saving you time, headaches, and serious money. Stop paying for missing pieces. Go to odoo.com. That's O-D-O-O dot com to learn more. With the new Schwab Teen Investor Account, teens can gain hands-on investing experience and build positive money habits. It's an account co-owned by you and your teen, so you can monitor and engage with the account while your teen learns how to invest and manage money. Learn more at schwab.com. It's a central question. Who are we? It's a question you can ask in any nation in the world, and the answer will be subtly different. For the United States, the answer until recently was pretty clear.

1:13Anyone who is legally there as a citizen is an American, including those who are born there. That is enough to make you fully a United States citizen. You can one day become president, etc, etc. Until now, Donald Trump has introduced into the American conversation the idea that birthright citizenship should go. And this week, that idea is put to the Supreme Court. Welcome to AmeriCast. AmeriCast. AmeriCast from BBC News. You hear that sound? Oh, I think when I hear that sound, it reminds me of money. We didn't start this war, but under President Trump, we are finishing it. This is a big cover-up, and this administration is engaged in it.

2:00This guy has Trump derangement syndrome. I have four words for you. Turn the volume up!

2:11Hello, it's Justin in the worldwide headquarters of AmeriCast in London, England. Hi, it's Sumi at home in Washington, D.C. And we're going to talk, aren't we, Sumi, about the Supreme Court and this enormously, monumentally important decision that it is about to consider. And we shouldn't fool people and say, suggest that it's about to give us an answer as well. That's not going to come this week, is it? But the arguments begin and those arguments will lead to a decision which comes, well, it's usually June, isn't it, that you hear with the big Supreme Court decisions what they actually are. That's right, Justin.

2:45This has been one of the fundamental tenets of American immigration policy for many, many years, that if you are born on U.S. soil, you are a U.S. citizen. And it really is a monumental case that's being heard before the Supreme Court. As you said, these are the hearings and not the decision, but it should give us, by the questions that the justices ask, some sense of where they are leading, perhaps, and which way they might decide. Of course, we'll have to wait for a decision. But this all stems back to President Trump's executive order that he passed right when he got back into office, didn't he?

3:22That he wanted to do away with birthright citizenship, and there were immediately legal challenges, and that has brought us to where we are today. OK, let's listen to his original reasoning for getting rid of it.

3:59does this with birthright, as you know. And it's just absolutely ridiculous, but we'll see. We think we have very good growth. Okay, it wasn't exactly reasoning, was it, Sumi? But you get from that a real sense of the way that he thinks it is properly, legally, the right thing to do. And we'll get later on in this conversation to what the reasoning is that's behind it. It's worth saying that when he says nobody else does that's not quite right, is it? Quite a few countries do do it. Most of them he would regard as minor league countries, though Canada is among them, though I suppose in this day and age he regards Canada as a state of the United States, so maybe that had simply skipped his mind.

4:42The fascinating thing, though, Sumi, he's going to go himself. He's actually going to go and sit there in the Supreme Court hearing. Let's listen to his reasoning behind that. You're going to go to the Supreme Court tomorrow? I think so. I do believe it. to sit there and listen. Because I have listened to this argument for so long, and this is not about Chinese billionaires or billionaires from other countries who all of a sudden have 75 children or 59 children in one case or 10 children becoming American citizens. This was about slaves. And if you take a look, slaves, we're talking about slaves from the civil war and if you take a look at when it was filed all of this legislation all of this everything having to do with birthright citizenship it was at the end of the civil war the reason was it had to do with the babies of slaves and the protection of the babies of slaves it didn't have to do with the protection of multi-millionaires and billionaires wanting to have their children get an American citizenship.

5:48It is the craziest thing I've ever seen. It's been so badly handled by legal people over the years. So we should take this moment to say it is completely unprecedented for a sitting U.S. president. He will be the first sitting U.S. president to attend oral arguments at the Supreme Court. Presidents in the past have always sought to keep the distance between the different branches of government. But it also underlines, Justin, as you hear from the tone of his voice there just how important he thinks this case is and why he thinks it is way past time for the U.S. to align with other countries. And we should say, you mentioned that there are other countries that do have a similar system as in the U.S., Canada, Mexico, Brazil.

6:34But the majority of Europe has different laws. You have to be a legal resident for your child to become a citizen of that country. And President Trump clearly thinks that the U.S. needs to catch with where the rest of the Western world is, let's say, in Europe. Yeah, I mean, that's a really interesting point, actually, because the trend has been in the other direction, hasn't it? And I mean, I think particularly of Britain. So quite soon after I became an adult, we had a big debate and a change in the laws here in Britain. And until I think it was 1983, we had birthright citizenship here and we got rid of it.

7:11And another country that comes to mind, because, again, there was a big debate about it, and I think they did it in two stages, was India. So a huge country. Used to have birthright citizenship. If you were born in India, you were Indian. You now absolutely do not have it. So when Donald Trump says, I don't know why we still do this, he's got a point, hasn't he, that the United States is in a sense out of kilter with the direction of travel of plenty of countries that it might compare itself with. And yet it has been the tradition here in the U.S. since that Supreme Court ruling in the late 1800s.

7:46And it is a really significant part of the society. We were looking at some of the numbers. The Pew Research Center found in 2022 that about 4.4 million U.S.-born children under 18 live with an immigrant parent who is not in the country lawfully. So it is really significant. And the legal underpinnings of this, I think, are really interesting because President Trump pointed to that when he said in that clip that we played, this is about slaves. He's talking about the 14th Amendment to the U.S. Constitution that says, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.

8:28And that question, jurisdiction, is the one that really is the crux of this case, isn't it? Yeah. Subject to the jurisdiction thereof. I have that really embedded in my mind because I had a conversation once, I've mentioned this on the pod before, with a guy called John Eastman, who is one of Donald Trump's lawyers, was very much involved with geeing the crowd up on January the 6th and getting them to go across to the Capitol. He actually made a speech, a speech just before Donald Trump himself spoke. So very close to the Trump White House and very close to the Trump way of doing business. Actually, I have to say, Sumi, one to one, the gentlest and most amiable of people.

9:11And I mentioned to him largely as a conversation thing because I was interviewing him about something completely different. And I mentioned that my daughter had been born in Washington, D.C. And I hoped one day she'd become president. And he turned to me and he said very earnestly, he said, well, I am glad for her, but I don't think that should happen. And he then explained to me what the thinking was. And it was a little bit more detailed than some of the things we've just heard from Donald Trump. And it's specifically hinged on that term jurisdiction, that word jurisdiction, subject to the jurisdiction thereof, because he said you, pointing at me as a foreign journalist on a visa in the United States, were not properly subject to the jurisdiction of the United States, to which I very mildly said, well, I sort of thought I was meant to follow US laws and all the rest.

10:02And he said, no, that's not proper jurisdiction. And that, I think, is one of the things that the court has got to come to terms with. In other words, this is not just a sort of political thing. Oh, do we want to let in all these people and have them have children here and be born here? Or do we want to stop that happening? There is actually some proper legal argument also to be had. And that question of jurisdiction thereof is particularly important when you look at people who have entered the country unlawfully. I know you were here lawfully, I'm assuming. Quite right. Fully lawfully. So I thought so.

10:41So, you know, it is, I think, all the more important for President Trump's larger immigration agenda when you see these this mass deportation scheme that the president has put in place with ICE agents. Part of that, a piece of that, is also to ensure that people who are in the country unlawfully cannot then have children that immediately become U.S. citizens. And in a way, they perhaps then can have a legal right to stay in the country as well if their children are citizens. Their children then can apply for status for their parents. And we've seen this actually play out in some of the deportation proceedings for people who are here unlawfully, haven't we?

11:24where some of the children who are caught up in these cases are citizens, but their parents are not and are not here lawfully. And the question is, if they are deported, what happens to the children? In a few cases that we've seen that have been more publicized, the children have decided to go with their parents if they're old enough to decide. But you do have cases, of course, where the children then stay behind in the U.S. with other family members, perhaps. So it is a fundamental question about legal immigration as well. Yeah, I remember talking to some people right way back when Donald Trump was elected the second time.

11:58We were talking to people somewhere, I can't remember where it was, a Venezuelan family. And they're exactly, as you say, they were not there illegally, or at least not there, the parents with the right to stay for very long, which is a particular category that quite a lot of Venezuelans and others find themselves in. But the children, having been born in America, the oldest one had served in the Marines, for goodness sake. I mean, it's actually gone into harm's way on behalf of the United States. And you have this and that will be something that in quite a few families exists as an issue. So as Donald Trump says, it's not just about Chinese billionaires, though there are some Chinese billionaires as well, aren't there?

12:41There are people who come to these extraordinary places in Los Angeles, just have their kids and then go back to China. I've never quite known why that is. I suppose their long term confidence in China as a place for those children to live is not what it might be. And if you've got a ton of money, you think, well, it's worth, I don't know, filling in your annual tax form as a child who becomes an adult for the United States in order to have that right in case you just need to leave and turn up in Los Angeles and live there. Yeah. And think about the investment opportunities in the U.S. if you're a citizen.

13:15You know, obviously it opens up far more doors for some of the children of these very wealthy Chinese and from other countries as well. And it has also been, I should say, culturally a source of pride for a lot of immigrants who have come to this country to say, my children are American. They were born here and they're American. And that is something that, you know, when you mentioned the families of Marines, there have been a few cases where you've seen, for example, one publicized case of a father of, I think it was three U.S. Marine sons who was facing deportation proceedings. And that really gives you a sense of just how ingrained that sense of the children of the immigrants becoming an integral part of American society is.

14:01At the same time, the point that you made earlier is it's not necessarily a usual practice in countries around the world that just because you come to this country and have a child, that you can be a citizen. That is something that Donald Trump has said should not be the legal precedent anymore. I'm not sure where the Supreme Court will come down on this. Most legal scholars believe that the president does not have the right with an executive order to do away with birthright citizenship. So it'll be very, very interesting to see where they come down, particularly with the divide on the court between the liberal and conservative justices.

14:38Yeah. So that divide is essentially six, three, isn't it? Six conservatives and three liberals. and the expectation has been for most of Donald Trump's second term that the court will always divide like that. In other words, the things that tend to appeal to the right will get through the court. I think it's fair to say that in quite a few cases that seemed to be happening until they see me recently. And there are a couple of cases, and the most obvious one is the tariffs, isn't it, where the court didn't side with Donald Trump to his immense and obvious annoyance. This court is not necessarily above occasionally surprising us, and these justices do act in what they regard as the right legal way.

15:23And the court would say this is exactly what they're intended to do is to rule along the constitutional lines and what they believe the Constitution protects. And there have been really interesting ideological, let's say, shifts between the justices on cases where you wouldn't have anticipated the conservative justice rules with the liberals and vice versa. The tariffs case was one of the great examples of that. And remember what President Trump said after that. He said those conservative justices who had leaned or ruled with the liberals there, their families should be ashamed of themselves. And so he was clearly incredibly disappointed because he has said that this has been one of his great achievements in his first term is being able to appoint three conservative justices to the court.

16:10And he assumed that that meant they would always rule with him. Well, the justices would say, and I know the Supreme Court's reputation in this country is taking quite a hit if you look at polling, but regardless, the justices would say that that's certainly not the case, that they rule based on constitutional law. Yeah. And there's a further wrinkle, isn't there, Sumi, that Clarence Thomas, who I think you could argue is the most conservative or right wing of the judges on the court, this guy who pretty reliably is on the right of any matter, is himself a descendant of slaves. and, you know, so will come at this himself personally and his interpretation of the law personally.

16:55Yeah, and Trump himself seems to know that he's facing an uphill battle here. He attacked the court preemptively on Truth Social. He said the next thing you know they'll rule in favour of China and others who are making an absolute fortune on birthright citizenship by saying that the 14th Amendment was not written to take care of the babies of slaves which was as proven by the exact timing of its construction, filing and ratification. And he goes on to say, how much better can you do than that? But this Supreme Court will find a way to come to the wrong conclusion, one that, again, will make China and various other nations happy and rich.

17:32So that gives you a sense that President Trump really isn't happy with his court necessarily and thinks or perhaps has been told by his advisers that there is a good possibility that the court does not side with him. Yeah, which, my goodness, will be an explosion of outrage. But what he has succeeded in doing anyway, Donald Trump, it seems to me, is he's put the whole question on the map, hasn't he, again, of what are we as a nation? Who should we be? And of course, it's wider than just birthright citizenship and who's born in America. It's also who's allowed to come to America. And that, I think, is, again, we're talking now about legal immigration.

18:13So put the illegal stuff to one side, Sumi, where Americans, at least until what happened in Minnesota, were pretty united, frankly, behind what the Trump administration was doing, according to the polls. They didn't want people to be coming in across the southern border without knowing who they were, etc. But when it comes to legal immigration, it fascinates me, this business, of the extent to which Americans can now unite about who they want to come into the country. And it's a question that Donald Trump has asked, but it's also, of course, a question that lots of the tech bros ask. And they have a pretty firm answer, don't they, particularly when it comes to highly educated people from other countries.

18:54I think what's been fascinating about this debate, who is American, who can come to this country, is it's one that has really gone to the soul of the Republican Party and riled the Republican Party and has divided it along some of those ideological lines. You have the more nativist side of the party that sees the right to come to America and the right to be a citizen along far more, let's say, ethnic lines than other parts of the party. And then you have, you know, the Elon Musk and others who have said that the U.S. needs to bring in talented immigrants who can help, for example, power the great tech companies and AI companies.

19:38And that includes that whole debate over H-1B visas. You know, there are many, many Indian immigrants who have come to this country on these visas where they can work for some of the big tech firms, for example, in California. And that has been something that the U.S. has massively benefited from. But with this nativist push in the party, there are some in the Republican Party who have turned against that and said, this is a country for, quote unquote, Americans, and we don't want immigrants necessarily coming in to do these jobs either. And that question, I think, is one where we haven't heard President Trump himself clearly define where he sees this.

20:18He's talked about, isn't that fascinating? He doesn't want to, of course, turn off any part of that base. But he's talked about the need for some of those skilled immigrants to come in. But at the same time, he hasn't outright rejected that nativist language in the party either. Yeah, it's so interesting that. And there was an opportunity he had, wasn't there, right at the beginning of his second presidency to make it clear. And he didn't really choose the opportunity. But the opportunity came from Vivek Ramaswamy. People might or might not remember Vivek Ramaswamy. He used to talk about him quite a lot on the pod because he was running for the Republican nomination.

20:54He's a biotech entrepreneur, very wealthy guy, incredibly good on the stump. People might remember him having kind of arguments on the stump. I mean, amiable arguments. He's a very, very good performer. And he really made quite a splash. And then when he didn't get beyond the primary, he sort of folded in behind Donald Trump. He was briefly involved with Doge. People might remember that as well. And now he's trying to become a governor. But the reason I mention him and give that little sort of biography of him is he wrote this. I don't know if you remember this, Sumi. It was on Boxing Day, so just before Trump came into office for the second time.

21:34He wrote this incredible thing on X in which he said, I'm just going to quote you a little bit of it, our American culture has venerated mediocrity over excellence for way too long. That doesn't start in college, it starts young. A culture that celebrates the prom queen over the math Olympiad champ, or the jock over the valedictorian, will not produce the best engineers. And his point to me was exactly that, wasn't it? that if we can't do it ourselves, and at the moment we cannot as Americans, we need to be open to bringing all these great people in from outside. Yeah, and the fascinating part about this as well, Justin, is I hail from the South Asian community here in the US.

22:13My parents are from Sri Lanka, but there is a large, successful Indian-American community. And they have, from the 70s and 80s onwards, become really an integral part of so many different sectors of American society. And there's this really interesting article about being an Indian American when Nikki Haley was still in the conversation to possibly be a presidential candidate. She was asked about, quote unquote, why Indians integrate so well, which is debatable. And she said, we're just good at being Americans. And there's now been this real reckoning for some of those Indian Americans, some of whom President Trump was able to garner support from.

22:54You know, there were these Hindus for Trump groups and such. And now with that nativist wing of the party also ascendant in some parts, at least of the country, they also are starting to feel abandoned by the America that they thought they bought into, that they have benefited from, but that the U.S. has benefited from, of course, as well. And so Vivek Ramaswamy, of course, as an Indian American, fits very much into the herd of that debate. And he has received racial abuse. His family has received racial abuse online. And so that kind of underpins that tweet that you read out and that debate that's happening among the South Asian community here.

23:33Yeah. And it should be said, there have been efforts before. So Donald Trump would like to have a point system, wouldn't he? He'd like to give up on the immigration system that allows, again, I'm stressing legally, that allows people to come in when they are family members of people who are already there. The criticism being that these people are not contributing much to the economy. And, you know, it's great for their families, but it's not great for the nation and actually what they should do. And again, this goes to the trend actually in a lot of other countries around the world, big countries, you think particularly of Australia has done it for a long time, where there is a sort of point system.

24:08Canada as well. Yeah, yeah, exactly. And that is what Donald Trump has spoken for in the past. And when I was in D.C. back in, it must have been just before Obama became president, so towards the end of the Bush, the W. Bush presidency, there was this huge push actually to make that change. And it involved a cross-party view in Congress. In fact, it involved very big figures on both sides. So John McCain, who eventually went on to run for the Republicans against Obama, but also on the left and frankly, the quite reasonably far left in senatorial terms, the great lion of the Senate, Ted Kennedy, was also signed up for this.

24:56So it's not necessarily a left-right thing. This idea that actually America ought to be able to choose who comes and ought to choose for the long-term good of the nation. And they tried to get it through the Senate. And I can't actually remember what happened to it, Sunni, but it didn't pass, basically. And none of these things ever managed to pass. And goodness knows Donald Trump isn't going to even try to get it passed. But it just seems to me that he has started a conversation that is a perfectly legitimate one about who America should allow to come. He's revived that conversation, but I think you put your finger on one of the fundamental problems with the debate here, is that Congress appears to be irrevocably stuck on this issue.

25:40Administration after administration has talked about the need for immigration reform. And indeed, you know, President Trump has said that he doesn't need Congress for any of these things. But if you want to fundamentally change the U.S. immigration system to perhaps align it with some of the other countries that have those point systems, like you mentioned, you need comprehensive legislation from Congress. And to this point, they have not been able to get anything past the line. And surely that won't happen under this Trump term as well, because President Trump is governing on this issue from the Oval Office with executive orders.

26:15But at some point, that will come to a head. And if you look at some of the debate that happened under President Biden during his term, there was a bipartisan agreement on some of the points that were made about how to change the U.S. immigration system, to change, for example, how asylum is recognized or where asylum is recognized, whether that's at the border or in South America. The Biden administration, especially during that massive spike in the numbers of people crossing into the country, also recognized that some of those laws need to be revisited. But it has become such a political hot potato that it just seems that Congress will not be able to get anything past the line.