Weekend Law: Trump Faces Loss on Birthright Citizenship & Conversion Therapy Ban

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0:36Manage all your business finances, from banking to payments to credit cards, all in one place with Chase's digital tools. Plus, access online resources designed to help your business thrive. Learn more at chase.com slash business. Chase for Business. Make more of what's yours. The Chase mobile app is available for select mobile devices. Message and data rates may apply. JPMorgan Chase Bank N.A. Member FDIC. Copyright 2026. JPMorgan Chase and Company. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need.

1:15Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business, IBM. This is Bloomberg Law with June Grosso from Bloomberg Radio. A landmark case before the Supreme Court is testing what it means to be an American. And the stakes couldn't be higher. The promise of citizenship for children born in the United States has been part of our collective understanding of the 14th Amendment for more than a century.

2:01And during oral arguments, Justice Elena Kagan called the government's claim that our longstanding view of citizenship is wrong, revisionist history, and a story. What do you think it should take to accept that story in terms of the magnitude of the evidence that we would need to see in order to accept this revisionist theory and in order to change what I think people have thought the rule was for more than a century. In an unprecedented move for a sitting president, Trump attended the oral arguments and listened as justice after justice, conservatives and liberals alike, questioned whether his executive order ending birthright citizenship could be squared with the Constitution and federal law.

2:53Justices called the government's arguments quirky and the precedents behind them obscure. 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 is undercutting historic understandings. But of course, we'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, Amy Coney Barrett and Neil Gorsuch looked at the practicalities. How would the executive order work since determining whether a newborn is a citizen of the United States would depend at least in part on how long parents intended to stay in the country?

3:43Because 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. So we're bringing pregnant women in for depositions. What are we doing to figure this out? 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 residence and intent to stay. What if you don't know who the parents are? 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?

4:18Is it the wife? What if they're unmarried? Who's domicile? Every federal court that's considered Trump's executive order has ruled against it. My guest is David Cole, a professor at Georgetown Law and the former National Legal Director of the ACLU. David, you've argued before the Supreme Court. Do you think President Trump sitting in the gallery had an impact on any of the justices? I don't think the justices appreciated the president coming in and sitting in the court in the way that he did. It's never been done before. There's certainly no rule against it, but there is a norm of judicial independence.

4:56And there's the appearance of the boss coming in and watching his people, in particular the people he appointed, and making sure they do his bidding. that's just a bad look. It's a bad look for the president. It's a bad look for the court. It's a bad look for the country. So I very much doubt that they appreciated his presence. I don't think it changed their behavior. They conducted the argument in the exact way that, you know, I would expect them to. I would say they rose above it. And of course, he attended only to hear his side of the argument and left before hearing the other side of the argument, which is a fitting symbol of this president's complete disregard for anyone who disagrees with him, regardless of the merits of the matter.

5:43Let's turn to the arguments themselves. The 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. The administration's argument is that to be subject to the jurisdiction, a person has to have a direct and immediate allegiance to the United States and have established domicile here. And a lot of the justices ask the Solicitor General, basically, you know, where are you getting that from? Exactly. Their argument is you have to establish domicile. And what domicile means is an intent to remain permanently and the legal right to do so.

6:28And as a result, that would extend birthright citizenship only to people who are born of lawful permanent residence, not to the millions of people who are born to folks who are here on temporary visas, workers' visas, student visas, visitors' visas, and not to the millions of people who are here unlawfully. So that's their argument. It is not in the text. Domicile is not in the text. They relied heavily on the fact that in the Supreme Court decision, Wong Kim Ark in 1898, that addressed whether the child of Chinese immigrants was a citizen because he was born here. The court described the parents as lawfully present domiciled Chinese aliens.

7:22And so he says, well, that's the holding of the case. It only applies to people who are domiciled here, shouldn't apply any more broadly. But the case itself does not actually say that domicile is a requirement. In fact, when it addresses domicile, it expressly says that people who are born here are subject to our jurisdiction, meaning they have to follow our laws, whether they are here temporarily or for a long term, independent of any intention to reside here or domicile here. So the court actually rejected this very argument. But because the parents in that case happened to be domiciled, the United States is kind of grasping for straws, I think, and trying to make that a principle.

8:09And yet at least five justices asked questions about domicile, the chief said, isn't it at least something to be concerned about? And those were the questions the ACLU lawyer seemed to be struggling with a bit. Well, I don't know that she was struggling with it. I think what she said was, no. In fact, when you read the decision, Wong Kim Ark, what it says is that subject to the jurisdiction was shorthand for we are adopting the law that applies at the time in the country, which was the English common law, which was if you were born on our soil, you were a citizen with very specific exceptions, children of foreign ambassadors, children born in land that is occupied by a foreign power, and children of Native Americans on tribal land.

9:04And in each of those instances, you are not subject to the jurisdiction of the United States because there's a fiction that sort of even though you're physically here, you are immediately subject to the jurisdiction of the country that you're the ambassador for, or the country that occupies the territory, or the Native American tribe that occupies the tribal land. Those were the only exceptions. That's what the Supreme Court held in 1898, relying on many, many authorities that had identified again and again that those are the only exceptions and that none of those exceptions turn on domicile. Did you think that any of the justices were buying into the government's argument?

9:50Justice Alito, without question, probably Justice Thomas as well. I think Justice Barrett very uncomfortable with this argument. I mean, she said, what about the children of slaves? The whole point of this 14th Amendment was to make the children of slaves citizens and to make it clear that they are citizens if they are born here. Well, slaves came here involuntarily. They were brought here against their will. She says, you know, if anything, they wanted to get out of here as quickly as they could. And yet the whole point of this was that their children, because they were born here, are citizens.

10:30And so that's directly contrary to the domicile argument. And then I think a number of justices also asked about the difficulty of determining domicile. What is domicile? How do you determine it? So I count six votes coming out of there that seem quite clearly on the side of the ACLU and possibly seven. I think Justice Kavanaugh a little bit harder to read, but I think you're likely to see a six to three or seven to two vote. And in part, it's because this domicile theory, number one, was rejected in Wong Kim Ark. They specifically said you are subject to the jurisdiction and therefore a citizen, even if your parents are here only temporarily and without any domicile.

11:17And because the sort of related concept of allegiance, which the Solicitor General was relying upon, proves far too much. And Justice Alito's questions to the ACLU attorney, Cecilia Wong, made this clear. He says, what about an Iranian who comes here illegally and has a child? That child is an Iranian citizen and he has to fight in the Iranian army if he ever goes back to Iran. And yet you're saying he's subject to the jurisdiction of the United States? Isn't he subject to the jurisdiction of Iran? And the answer to that, which both Cecilia Wann gave and Justice Sotomayor underscored, is that argument would suggest that no one who is a foreign national and has a child here, none of their kids are citizens because all foreign nationals have allegiance in that sense to the country of their citizenship.

12:16If you're a Mexican and you are here, even if you're a lawful permanent resident, you are a citizen of Mexico. You're not a citizen of the United States. And so to the extent you have allegiance, you have allegiance to Mexico, not to this country. And yet even the government does not argue that lawful permanent residents' children should not be recognized as citizens. So their reliance on allegiance doesn't explain their own theory. And their reliance on domicile is contrary to the English common law, the American common law, and the decisive Supreme Court case on the matter, Wong Kim Ark. To overturn all of that would be a really remarkable upheaval of sort of the way we have long understood citizenship to operate in this country.

13:04And I heard questioning of the scope of the ACLU's position, but I did not hear a lot of support for the notion that the court should change the rules that govern the citizenship of millions of people in this country. Stay with me, David. Coming up next, we'll discuss the implications of a decision made on statutory grounds rather than constitutional. I'm June Grosso, and this is Bloomberg. 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.

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15:58Birthright. Citizenship. Always. Birthright. Citizenship. As the justices heard arguments on Wednesday about President Trump's attempt to end birthright citizenship, protesters rallied outside the building. Among them was Norman Wong, a 75-year-old retired carpenter. It was his great-grandfather who was born in San Francisco to Chinese immigrants, but was prevented from re-entering the country after a trip under the Chinese Exclusion Act. His case, United States v. Wong Kim Ark, became the landmark ruling that enshrined birthright citizenship in our laws. establishing in 1898 that the 14th Amendment guarantees citizenship to virtually everyone born on U.S.

16:51soil. But Norman Wong says he's worried that the principle established in his grandfather's case is in jeopardy. It's a struggle that all of us need to participate because this is for the soul of our country. Wong may not have to worry. During the oral arguments, a majority of Supreme Court justices from across the ideological spectrum expressed skepticism about the Trump administration's argument that children of non-citizens are not subject to the jurisdiction of the United States under the 14th Amendment and therefore are not entitled to birthright citizenship. It was telling that the chief justice found the legal basis for the government's position questionable, or quirky, as he put it.

17:40You 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 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. While Justice Brett Kavanaugh, a Trump appointee, brought out the fact that in federal statutes enacted in 1940 and 1952, Congress used the identical language, suggesting it was endorsing the long-held view of birthright citizenship.

18:29By the time of the 1940 and 1952 congressional actions, where Congress repeats subject to the jurisdiction thereof, Given Wong Kim Ark, one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark 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. At the end of two hours of oral arguments, it seemed that there was a majority of justices who would vote against President Trump's attempt to end birthright citizenship by executive order.

19:18Although there's never certainty until the decision comes out. I've been talking to Georgetown Law Professor David Cole, the former National Legal Director of the ACLU. David, it was striking that several justices questioned just how this executive order would work in practice. And I think Justice Ketanji Brown-Jackson asked the most concrete questions. How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

20:01Did the government have an answer for how they would work this? No, they do not. And that's that's one of the reasons that domicile is such a bad test. And I think, you know, was rejected in Wong Kim arc and has not been the test for the last hundred plus years. And I think would not be a workable scheme. So, I mean, I think what the challengers have going for them is the text of the Constitution, the history of English common law and American common law, the Supreme Court decision on point, and the fact that ever since there's been a widespread consensus that people who are born here, subject to these very limited exceptions, are citizens.

20:46And to sort of throw that into question, not just going forward, but on the government's theory, they were only asking for prospective relief, meaning it would only apply to people who are born after the court's decision. But that's because that's what the executive order does. But their theory is that unless you were born of a permanent lawful resident, you are not a citizen. That would call into the question the citizenship of millions of people here. And the next day, Trump could issue a retroactive executive order and call all of their citizenship into question. So, again, I don't know. And you can never be confident coming out of an argument.

21:23Most of the time you can't be confident of which way they're going to rule. But it would be such a kind of an earthquake in terms of how we understand citizenship in this country for the court to suddenly say, you know, millions of people here. if they're citizens, they're citizens by mistake. And no one's foreign national kids are going to be a citizen going forward unless you're a green card holder. I think that's very, very disruptive. And I just don't see there's no sort of line of cases that leads us in that direction. There's no sort of strong political movement that has been arguing for that.

22:00It's a kind of wacko position. That's a technical term that the president has been advancing. You know, it's consistent with a lot of his anti-immigrant views, but it just doesn't have legal, any legal foundation. And for the court to kind of impose that on the country would be quite remarkable. And again, with the exception of Alito and Thomas, I don't think the Trump administration could walk out of that argument confident of anyone's vote other than those two. Justice Kavanaugh asked, why would we address the constitutional issue when our usual practice is to resolve things on statutory grounds rather than constitutional grounds?

22:43Will you explain what he was getting at there? Yes. So the case actually presents two questions. Does the Constitution forbid the executive order denying birthright citizenship? And then does a statute that Congress passed in 1940 and then reenacted in 1952, preclude the executive order on birthright citizenship. The statute uses the exact same terms that the Constitution does. But when the statute was adopted in 1940 and then again in 1952, there was no dispute that persons born here are citizens. So if you're asking about the original meaning of the 14th Amendment, you know, there's evidence going both ways.

23:29The SG cited some evidence. The ACLU attorney cited other evidence. Ultimately, in Wong Kim Ark, the Supreme Court resolved that dispute. But by the time Congress is passing statutes in 1940 and 1952, everybody understood this is what it means. You know, if you're born here, you're a citizen. So even if we're not clear about the Constitution, surely we know what Congress meant when it passed this statute. Therefore, the court could decide the question only on statutory grounds, leave the constitutional question unresolved. And that's a more minimalist decision. And I think Kavanaugh was sort of exploring that as a possibility.

24:10The difference between deciding it on a statutory ground and deciding on a constitutional ground is that if you decided it on the statutory ground, then Congress the very next day could pass a statute that says no children of illegal immigrants should be citizens. And then that would go back up to the Supreme Court on the question of whether that's consistent with the Constitution. So, you know, it leaves open room for Congress to weigh in and express its views if you decide the case only on statutory grounds. And it's possible the court does that. It's the narrowest way to resolve the case. I think given that the Supreme Court and Wong Kim Ark already decided the constitutional question, to sort of decide only the statutory question would raise questions, at least, about this citizenship of a whole lot of people here and invite sort of political meddling with, you know, who's a citizen and who's not.

25:12And the whole purpose of the constitutional amendment was to disable the political branches from defining away citizenship as they had done with respect to the children of slaves. Every court that reviewed Trump's executive order ruled against it. Senior Seattle Judge John Kunauer called it blatantly unconstitutional and said it boggles my mind that a lawyer could argue to the contrary. And this was looked at as a sort of fringe theory when the executive order came out. So why do you think the Supreme Court felt the need to take the case? Well, I think there's a sense that it's an important question.

25:52And generally speaking, I think when the president has acted in a national way and lower courts have declared his actions unconstitutional, there's almost a presumption that the Supreme Court should hear the case that the president deserves to have his actions reviewed by the Supreme Court and not just invalidated by lower courts without the Supreme Court even weighing in. The same presumption operates with respect to decisions that declare statutes unconstitutional. Even where there's no disagreement among the lower courts that a statute is unconstitutional, the Supreme Court will almost always take that case up because they feel they owe it to their co-equal branch of government.

26:36And I think that's the case here as well. This case is another test of Trump's assertions of executive power that defy longstanding precedent. And this court's conservative majority has largely ruled in Trump's favor until it struck down his global tariffs. And this could be the second major defeat for him at the court in the first immigration-related policy to reach the court for a final ruling. Do you think the tide is turning a bit? You know, at the end of this term, I think you're going to see the Supreme Court having rejected his tariff policy, rejected his birthright citizenship policy, rejected his effort to try to take control of the Federal Reserve Board.

27:21Those are significant decisions. And I think if they do come out, they show that even if the court is very conservative, even if Trump has appointed three of their justices, they are an important check. When they are doing their job, they are an important check on executive overreach. We will find out the answer definitively by the end of June. Thanks for spending so much time with me, David. That's Professor David Cole of Georgetown Law. Coming up next on the Bloomberg Law Show. The Supreme Court ruled against Colorado's ban on conversion therapy for LGBTQ minors this week. It's a decision that will affect laws in more than half the states.

28:02I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public. Lately, it feels like there are two types of investing platforms. Some are traditional brokerages that haven't changed much in decades, and others feel less like investing and more like a game. Public is positioned differently. It's an investing platform for people who are serious about building their wealth. On Public, you can build a portfolio of stocks, options, bonds, crypto without all the bugs or the confetti. Retirement accounts, yep. High yield cash, yes again. They even have direct indexing. Public has modern design, powerful tools, and customer support that actually helps.

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