SCOTUS May Hand Trump a Loss on Birthright Citizenship

0:02This is Bloomberg Law with June Grasso from Bloomberg Radio. With President Trump sitting in the first row of the gallery watching, Supreme Court justices from across the ideological spectrum appeared skeptical that an executive order he issued hours after his inauguration last year could be squared with the Constitution and federal law. The 14th Amendment has long been understood to guarantee citizenship to virtually everyone born on U.S. soil. But Trump's executive order would upend that and restrict birthright citizenship to babies with at least one parent who's a U.S. citizen or a green card holder.

0:45Several justices call the Trump administration's arguments quirky and obscure, among other things. Here are justices Elena Kagan and Neil Gorsuch. Where does this principle come from? Allegiance, domicile. Allegiance, I think you point to a Lincoln funeral speech as your primary example of where this principle comes from. It's certainly not what we think of when we think of the word jurisdiction. And the stuff you have about unlawfully present, it's like Roman law sources you're going to. And Chief Justice John Roberts dismissed Solicitor General John Sauer's contention that the country faces a new world in which so-called birth tourism was undercutting the historic understanding.

1:34We're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a child who's a U.S. citizen. Well, it's a new world. It's the same Constitution. And Justices Ketanji Brown Jackson and Amy Coney Barrett asked about the practicalities. Just how would the executive order be applied in practice, given the determination would depend at least in part on how long parents intended to stay in the United States? Because now you say your rule turns on whether the person intended to stay in the United States, and I think Justice Barrett brought this up.

2:09So we're bringing pregnant women in for depositions. What are we doing to figure this out? I can imagine it being messy in some applications. So what would you do with what the common law called foundlings? You know, the thing about this is then you have to adjudicate if you're looking at parents and if you're looking at parents' domicile, then you have to adjudicate both residents and intent to stay. What if you don't know who the parents are? Trump's executive order would affect an estimated 250 ,000 children born to undocumented immigrants and temporary visitors each year. My guest is Leon Fresco, a partner at Holland and Knight.

2:47He's the former head of the Office of Civil Immigration Litigation in the Obama administration. Leon, explain what Trump's executive order would do. So the executive order is actually a little bit complicated in the sense that what it does is it says that if you are an adult in the United States and a child is born from you, that child's citizenship is going to be based on a very complicated set of tests. But essentially, you're going to need one parent who is at least a lawful permanent resident of the United States at the time of the child's birth. Now, the arguments today don't actually jive with that executive order.

3:35The language of the 14th Amendment is all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. So the key issue here revolves around the interpretation of those words. The 14th Amendment, which was passed obviously as part of the end to the Civil War, basically said that if you were born in the United States, you are a U.S. citizen so long as you are subject to the jurisdiction of the United States. And so there were some initial exceptions that were sort of understood in the common law historically as people who were not subject to the jurisdiction of the United States, which were children of diplomats, invading armies, enemy occupiers.

4:26Those were the historical groups of people that were considered not subject to the jurisdiction of the United States. And this wasn't spoken about at all during the oral argument, but I think it's very important for your listeners to understand the history of this. If you were just some random person in the 1860s who entered the United States and just got here, there was no thing called deportation or admission or inspection. So if you just arrived here from England or Ireland or wherever in the 1860s, if you were here for five years and could get some witnesses to testify to that in a judicial proceeding, you could naturalize to become a U.S.

5:12citizen. And at that time, there was no debate or dispute that someone who was born here wouldn't even have to do that. They would just be a U.S. citizen unless they were a slave or a child of slaves. So the question is, where do we go now in a world where there is this process that you have to be admitted lawfully into the United States if you're not born here in order to enter? Where does that interface with this 1860s amendment, which says that you're only a citizen if you're subject to the jurisdiction of the United States? And that was the debate that the court was having today. The Solicitor General faced a barrage of skeptical questions.

5:56What was his main argument? So his main argument is not necessarily that, quote unquote, an illegal immigrant or an undocumented person who has a child can't be a U.S. citizen. That's sort of the policy argument. The government's position was that subject to the jurisdiction of the United States means that the person has to have a domicile in the United States in order for them to be able to pass citizenship on to their children when they're born here. And the way they define domicile isn't just that you have a house here or a physical presence, but they say you have to have the legal right to be able to reside here indefinitely, meaning there can't be an expiration date on your status.

6:45The legal capacity to form a permanent allegiance to the United States and that you've submitted to that full sovereign authority. So they add all of these definitions onto the word subject to the jurisdiction of the United States. And they say that that's what domicile means because there was a case called Wong-Ar Kim from 1898, which held that a child born in the United States to non-citizen parents was a citizen at birth. But in that case, they mentioned domicile 20 times. And it's unclear why that case mentions domicile 20 times. But nevertheless, it does. And the court was debating why it said that.

7:32But in the end, the government says because it mentioned that word domicile so many times, it must mean something. And so the government's position is that if the Wong, Arch Kim Supreme Court case said you have to be domiciled in the United States in order to be given U.S. citizenship, that that must mean something. And so that's their argument. And certainly there were some justices who seemed interested in that argument. They didn't just automatically discount it, much like every lower court basically shunted aside these arguments. The Supreme Court seemed much more interested in these arguments.

8:13Yeah, one of the judges who found the executive order unconstitutional, Seattle Judge John Kunauer, called it blatantly unconstitutional and said, quote, it boggles my mind that a lawyer could argue to the contrary. But here we have a few Supreme Court justices seeming to go down that rabbit hole. Justice Alito certainly seemed interested in it. Any other justices? Well, Justice Alito, Justice Thomas, I think were interested in it. And then I think that Justice Gorsuch was trying to engage with the argument, as was Justice Kavanaugh. And the question is, I think Roberts and Coney Barrett, not as much.

8:56So if we were going to get to the latter part of this discussion in terms of a forecasting, I don't know where the fifth vote would be for the Trump administration. But nevertheless, they were all asking questions about why this word domicile was being used in the Wong-A-Kin decision. And from that standpoint, we're trying to get at maybe was there really something here to the government's argument that, yes, you had to be domiciled in the United States. in order to be someone who can actually confer citizenship onto your children. The ACLU's lawyers seem to have the greatest problem with answering the justice's questions about domicile.

9:39Right, because what the court was asking her is, why was this being used so much? And could it be, and this was Justice Alito's question, could it be that the reason it was being used was because in the historical example that I gave you, while it was true that anybody from Ireland or England or Norway or Denmark could just arrive in the United States and naturalize and become a U.S. citizen, that wasn't true for Chinese nationals. They were the one group that was subject to exclusion and potentially deportation due to race-based restrictions. And so the question was, would the child of a Chinese national who was trying to live here permanently and was owing no allegiance to China, would that child be given U.S.

10:30citizenship? And so what Justice Alito's point was, in a scenario like that, where the person had entered legally and had done everything right, but just couldn't become a citizen because the laws prevented them from proceeding any further, that the holding of Wong Ar-Kim should be limited to that. It should be limited to a scenario like that, where you entered legally, you've done everything you can, and that's it. So in that scenario, your child would be a U.S. citizen. But there were a lot of complicated questions that then derived from there, which I think Justice Coney Barrett asked a very interesting one with regard to how slavery worked and how it interfaced with human trafficking.

11:14because she asked, what if in the 1860s or after, you know, the slave owner illegally trafficked slaves into the United States, would those children have been U.S. citizens? And the Solicitor General said, yes, that's the whole point of this law. And so then Justice Coney Barrett asked, well, what if someone was the modern day equivalent of a slave now? They were human trafficked into the United States. Why wouldn't those children then be citizens of the United States, even if the executive order wouldn't cover them because they would only cover citizens and residents of the United States? And the solicitor general didn't have a good answer for that question.

11:59He said, well, we can figure out a humanitarian exception to this, but that's not really what the executive order does. And so from that standpoint, I think what's going to ultimately make the difference is going to be how you try to apply something like this in practice. And I think there were questions there from Justice Jackson, Justice Roberts and Justice Coney Barrett about these concepts of, hey, you're going to take a very simple bright line rule. and you're going to try to figure out all of these various permutations of it where people might end up with citizenship and might not. And I think that's ultimately going to be what troubles enough members of the court to say that the executive order is not valid.

12:45But it's going to be very interesting in terms of the analysis there. This message is brought to you by Apple Card. Apple Card members can earn unlimited daily cash back on everyday purchases wherever they shop. This means you could be earning daily cash on just about anything, like a slice of pizza from your local pizza place or a latte from the corner coffee shop. Apply for Apple Card and the Wallet app to see your credit limit offer in minutes. Subject to credit approval, Apple Card issued by Goldman Sachs Bank USA, Salt Lake City Branch. Terms and more at AppleCard.com. As markets move and headlines break, what matters most is context.

13:22A Bloomberg subscription gives you unmatched reporting, sharp analysis and powerful tools that help you connect the dots. Visit Bloomberg dot com slash podcast offer to learn more. The Supreme Court seemed poised today to reject President Donald Trump's attempt to roll back birthright citizenship in a case that was magnified by his presence in the courtroom. Conservative and liberal justices questioned whether Trump's executive order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens could be squared with either the Constitution or federal law.

14:05Trump heard as his Solicitor General John Sauer faced one skeptical question after another. The 14th Amendment guarantees citizenship to anyone who's born in the United States and, quote, subject to the jurisdiction thereof. The Solicitor General argued that the provision applies only to people who have a direct and immediate allegiance to the United States and have established domicile in the country. The Chief Justice had some problems with his 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.

14:43You know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a 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. In a series of decisions, lower courts have struck down the executive order as unconstitutional. The decisions have invoked the Supreme Court's 1898 ruling in Wong Kim Ark, which held that the U.S.-born child of Chinese nationals was a citizen. And conservative Justice Brett Kavanaugh, a Trump appointee, cited that ruling in questioning whether the executive order was legal under federal statutes enacted in 1940 and 1952.

15:36By the time of the 1940 and 1952 congressional actions where Congress repeats subject to the jurisdiction thereof, given Juan Kim Mark, one might have expected Congress to use a different phrase if it wanted to try to disagree with Juan Kim Mark on what the scope of birthright citizenship or the scope of citizenship should be. And yet Congress repeats that same language knowing what the interpretation had been. No court has accepted the Trump administration's argument. I've been talking to immigration law expert Leon Fresco of Holland and Knight. Leon, as we were saying, a lot of justices asked questions about the multiple references to domicile in that 1898 decision.

16:32Is there a legal definition of domicile in the immigration laws? Well, I mean, normally it's just that you live there. That's when we're talking about domicile for the purposes of, you know, service of process or where you have jurisdiction of the court. The court doesn't say, oh, you had this car accident in Maryland, but you're undocumented, and so now you cannot be sued because you don't have a domicile in Maryland. They don't say that. They allow you to be sued because that's the state of your domicile. Or you were operating this fraud operation out of New York State, but because you were here illegally, you were not able to set up a domicile.

17:14They don't ask that question, that second question about whether you are here legally or not and did that prevent you from having a domicile. The domicile normally just means where you are residing. And so this is a new, unique thing that the government is arguing, which is that being here legally is a prerequisite to being able to form a domicile in the United States. When we first heard about this Trump executive order and the birthright citizenship, it seemed absurd. And legal scholars were talking about how this, you know, wouldn't pass muster. At the beginning of the Solicitor General's argument, Justice Kagan said his arguments were obscure and the chief justice called them quirky.

17:56But it seemed like by the end, more justices were giving it credence than I thought initially would. Yes, I agree. I did not think that the pace of the argument went very well. But I actually think, and we haven't touched on this yet, but I actually think perhaps it was a strategically genius move for President Trump to attend the oral argument. Because I think that by him attending the oral argument, it actually made the questions from the conservative justices, perhaps in a tone that they wouldn't have been had he not been there. And I think from that standpoint, it definitely may have impacted the way that argument went.

18:39I do think the argument presented by the Solicitor General might have been more sharply contested by the justices had President Trump not been there. But I think they didn't want to upset him. I just think people are sensitive to these human dynamics. It will be interesting to see what actually comes out of the decision-making process versus the oral argument. Whereas usually you can tell a lot more from the oral argument. It's possible that this oral argument moved a bit into the world of theatrics. I do think, though, that even though the questions were subtle, there were some very difficult questions.

19:16And I think one of them, and this sort of touched on the major questions doctrine. By the way, for your listeners, the major questions doctrine is a doctrine that was created out of this Trump majority Supreme Court that basically says, if you're going to have something like a regulation or an executive order that interprets the statute and the statute is ambiguous, you're going to need something better than that for the regulation or the executive order to actually have power. You're going to need Congress to come in and say it if it's a really important deal. And so you can't have anything more important than citizenship.

19:50And so someone asked the question to the Solicitor General, what kind of evidence do we need after 150 years of thinking that there was birthright citizenship in America to change it all of a sudden? How can we do that on the basis of just one president's executive order when for 150 years, we thought it was one way? If this was so obvious, why did it go on for 150 years? What is the level of evidence we would need to overturn that on the basis of an executive order rather than Congress weighing in and changing it. And I didn't think that the Solicitor General really answered that question. I think the Solicitor General just said, well, you don't have to overturn anything.

20:36This was always how it was. And this was the way the Supreme Court thought it was also. And just basically trying to edge around the question. But I think if the court really focuses on that question, which is sort of a corollary of the major questions doctrine, which is, is this really an ambiguous question? Which I think if you're at five to four or something, you have to say is an ambiguous question. And you even had Justice Gorsuch say, this is a mess, there's good arguments on both sides. And you had some other justices say that. And you had Justice Kavanaugh talking about the statute, because there's two things.

21:15There's the Constitution, and there's a statute which says the same thing as the Constitution, which was passed in the 1940s after there was already 80 years of this belief that you had birthright citizenship. So if you didn't think there was birthright citizenship, why would you pass the same exact words in a statute in 1940? If you wanted to change it, you would change it. And so the argument is, based on all of that history, why would an executive order be sufficient given this major questions doctrine to change it. And I think that's going to be the ultimate argument that the court's going to have to struggle with that, plus the administrability aspect of this.

21:58Leon, explain some of the problems in administering it. What do you do in all of these edge cases where, you know, someone was smuggled into the country, someone's an applicant for a green card, but they haven't gotten their green card yet, but they are an applicant for it. What do you do in all of these cases? And the administration is not going to have very good answers with regard to those questions. And I think the court's going to have to decide, well, maybe it doesn't care about those administrability questions, or it says, look, at the end of the day, we're going to go down this road. And they may do this.

22:36They may they may potentially say at the end of the day, maybe Congress can have something to say about this, but it will need to say something about this. And we won't do it ourselves. So if Congress wants to change the way that the birthright citizenship law work, there's enough wiggle room there to define what subject to jurisdiction means. But Congress is going to have to do that. And that may be a ruling that the court makes. So Justice Kavanaugh said, we'd like to decide the statutory question rather than the constitutional question. So if they based it on a statute, would they base it on that 1940s law you're talking about?

23:16Correct. They may say one of two things. They may either say that the 1940s law is ambiguous and based on the major questions doctrine, go back to Congress and Congress has to figure out if they don't want certain people to get citizenship or not. Or they may say that the 1940s law is completely clear. And what the 1940s law says is we knew for 80 years that there was citizenship that was given to people who are born in the United States. And we didn't change it because if we wanted to change it, we would have written words that were different. But we wrote the exact same words as part of a larger statutory scheme, because it wasn't just those few words.

23:58That was one basis in which you would get citizenship. And then it added other bases. So like it said, if you were born abroad, but one of your parents was a US citizen and they'd lived here for five years, they could give you citizenship. So there was a bunch of ways, but the first way was you were born here. And that was the first law. And that law mirrored exactly word for word the Constitution. And so again, if they didn't think that that was true, after 80 years of that being true, they would have tried to change it. So unclear. And the Solicitor General's answer was, well, they thought it was what it was in the 1860s.

24:41And what it was in the 1860s was that you didn't get birthright citizenship. Well, okay, but that's not really what happened. That's not true. And so I don't know where that puts the solicitor's enter. But I do think if it's a statutory decision, then the statutory decision would be not in favor of the government. And that's why the government said, if you're going to rule against us, please use the statutory decision. Because then what that would do is it would punt the issue to Congress to say, potentially, the Constitution doesn't prevent Congress from clarifying who is subject to the jurisdiction for the purposes of citizenship.

25:22And so now Congress can go and regulate in this matter if it wants to. And that would be fascinating. It would then punt the issue back to the Congress. And I could see if the government's going to win, that being their win. I don't see them upholding this executive order. I don't see that. I don't see five votes for saying this executive order is fine. But I think a win for the government would be that the Constitution hasn't frozen birthright citizenship in perpetuity forever. But what it has done is it has given Congress the ability to say who is subject to the jurisdiction of the United States.

26:04And we'll see. We'll see what happens. Leon, what's your account of the justices positions? I think there's three for sure, in terms of validating the executive order, which are Justice Brown Jackson, Justice Kagan, Justice Sotomayor. There's Thomas and Alito for sure in upholding the executive order. And then the question is Justice Roberts, Justice Gorset, Justice Kavanaugh, Justice Coney Barrett. And I think Roberts asked enough questions talking about the kooky nature of the government's executive order, that he would be the fourth vote to invalidate the executive order. And I think Kavanaugh is trying to build a coalition around this statutory argument, which I think ultimately may carry the day because he may be the fifth vote concurring in the judgment, essentially, that the executive order is void.

26:57but he may say it's void because Congress hasn't done something, but Congress could do something. And I think there would be four votes for that for sure. I don't know where Justice Coney Barrett would be. I think her discussion about the human traffic thing and her history in the past with being friendly toward foreign national cases in other areas leads me to think she's not a fan of this executive order in any way, shape or form. So she might be a fifth clean vote for invalidating the order on constitutional grounds. But I could actually see no majority on invalidating the order on constitutional grounds, but a majority on invalidating the order on either constitutional or statutory grounds with concurring opinions, trying to figure out which one works and which one doesn't.

27:50I'm not sure why they took this case opening a can of worms sort of. I really think they wanted to get some finality. It was an issue of incredible importance. The Trump administration asked them to take the case. And it is very, very, very rare that when the solicitor general asked the Supreme Court to take a case, they don't take it. Sometimes it happens, but it's very, very, very rare. So they wanted to bring some finality to this, but they may end up really sort of ginning up all the sides to this if they do what I think they're going to do, which is punt it to the Congress and say, hey, Congress, if you want to put some limits to this term of jurisdiction, then domicile, go ahead, have at it.

28:36Now, will the Congress ever pass such a law? Will there be 60 votes? Would it be worth for the Republicans to finally abandon the filibuster in order to do this? Would it be the kind of thing where if you abandon the filibuster, it would literally change who was a citizen depending on who was in Congress at that time? It could end up being completely crazy. We'll see. But we've seen enough dramatic change from this court on other issues that I don't put it past them to allow this to happen. I thought they would have to pass a constitutional amendment in order to change what the 14th Amendment says?