5 Observations On The Supreme Court Argument In The Birthright Citizenship Case

The Trump v. Barbara oral argument went better for the administration than I expected—but Trump will probably still lose.

The U.S. Supreme Court—where lawyers who lined up for seats in the SCOTUS bar section of the courtroom were turned away today (photo by David Lat).

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This morning, the U.S. Supreme Court heard a little more than two hours of oral argument in Trump v. Barbara, better known as the birthright citizenship case. Barbara presents the following question: “Whether Executive Order No. 14,160 complies on its face with the citizenship clause of the 14th Amendment and with 8 U.S.C. § 1401(a), which codifies that clause.”

EO 14,160, “Protecting the Meaning and Value of American Citizenship,” provides in relevant part as follows:

[N]o department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

Translation: if neither of your parents was a U.S. citizen or lawful permanent resident, i.e., a green card holder, at the time of your birth, you’re not a U.S. citizen, even if you were born in the United States. So the EO covers not only the children of undocumented immigrants, but also the children of foreign nationals who are here on tourist, student, or work visas.

(The EO doesn’t apply retroactively, but I wouldn’t be a citizen had it been in effect when I was born. Although I was born in New York, my parents—who have been U.S. citizens for decades now—did not have citizenship or green cards at the time. Instead, as doctors doing their medical residencies, they were here on work visas.)

If you have the time, you can listen to the argument or read the transcript for Trump v. Barbara. You can also dive into the news coverage—such as Amy Howe’s SCOTUSblog post, or the stories collected by Howard Bashman at How Appealing.

But if you don’t have the time for all that, here are my five takeaways. I listened to the arguments in order to participate in the SCOTUSblog live blog, which as usual was great fun (and I encourage you to join us for future live blogs).

1. Donald Trump attended the argument—a historic first.

Trump raised the possibility of attending the arguments in the tariff litigation, but didn’t in the end. This time around, he followed through—and became the first sitting president in the history of the United States to attend a Supreme Court argument. He entered One First Street minutes before the argument began, and he (and his Secret Service detail) departed quietly in the middle of the session—shortly after Solicitor General D. John Sauer finished his presentation. (According to his public calendar, Trump had to make it back to the White House for a 12:30 p.m. Easter brunch.)

There was chatter on Twitter among SCOTUS obsessives about where Trump would sit. I learned the fun fact that the courtroom at One First Street might contain “a special chair for the President of the United States, although the President's attendance is rare and limited to important ceremonial occasions.”

I say “might” for two reasons. First, the source for this fact—a form prepared by the National Park Service, nominating the Court’s building for inclusion in the National Register of Historic Places—dates back to 1986. So it’s not clear if there’s still a “special chair” today. Second, even if there might be such a chair, Trump didn’t occupy it. According to the NPS form, the presidential chair is located among a section of black chairs designated for “officers of the Court [and] visiting dignitaries.” But Trump—as reported by numerous outlets, and confirmed by a Court spokesperson—sat in the first row of the public gallery, a different section of the courtroom.

[UPDATE (7:09 p.m.): Mark Walsh of SCOTUSblog penned a great View From the Court column, which explains the mystery of the “special chair”:

There is a vibrant discussion in the press room about where [Trump] will sit, as some in his administration have suggested there is a special or dedicated chair for any president in the VIP section of the courtroom. When Trump and other presidents have come to the Court for the investiture of a new justice, they typically sit in that section, in the first chair closest to the bench.

But as Walsh predicted to his colleagues in the press room, Trump didn’t take that first chair today, instead sitting in the public gallery.]

[UPDATE (5:28 p.m.): For a fun read about Trump going to One First Street, check out “I Am Here to Watch the Birthright-Citizenship Arguments, but Not in a Threatening Way,” by Alexandra Petri for The Atlantic (gift link).]

2. The challengers will probably prevail—but a narrow win by the administration can’t be ruled out.

Before oral argument, my prediction for the outcome of Barbara was a win for the challengers of the EO, by a lopsided margin—probably 7-2, with Justices Clarence Thomas and Samuel Alito dissenting. (Speaking of Justice Alito, happy birthday to him—he turns 76 today—but even if he’s getting up there in years, I stand by my prediction that he’s not retiring from SCOTUS this year.)

After this morning’s argument, I’m less confident of a win for the challengers (represented at the Court by Cecillia Wang, national legal director for the ACLU—and, fun fact, a birthright citizen herself). But I’m also less confident of, well, many things related to this case; most of the justices posed tough questions to both Sauer and Wang, making it hard to tell where each jurist stands.

Nothing from the argument changed my view that Justices Thomas and Alito will vote to uphold the EO, while Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson will vote against the legality of the EO. But the votes of four justices—Chief Justice John Roberts and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—remain less obvious.

In high-profile, politically inflected cases, Chief Justice Roberts often seems to take into account considerations other than legal doctrine—such as practical consequences, prudential judgments, the reputation and legitimacy of the Court, and whether a particular ruling might diminish its political capital. In Barbara, these factors favor the challengers, to the extent that the administration’s position represents a departure from a settled understanding of birthright citizenship as a legal and policy matter. So if forced to guess, I’d predict that the Chief will side with the challengers—and will write the majority opinion, as he often does in the biggest cases.

But I’m honestly at a loss when it comes to Justices Gorsuch, Kavanaugh, and Barrett, who all asked thoughtful, probing questions of both sides. I think there’s a possibility that one of them will vote with the Trump administration, making for a 6-3 vote, and it’s also possible that two of them go that way—meaning that the ACLU would still prevail, but by a close, 5-4 vote.

I think it’s highly unlikely that the administration wins three or more of the justices I’m unsure about, so I have a hard time “counting to five” for Trump’s position. But after the argument, I believe it’s at least theoretically possible for the administration to eke out a narrow, 5-4 win—in a way that I didn’t think possible before today.

(I listened to the live audio of the Barbara argument, and my observations are based on that. Interestingly enough, some observers in the courtroom itself came away more confident in a win by the challengers—including Professor Akhil Amar and SCOTUSblog reporter Amy Howe, who shared their views on Advisory Opinions.)

3. The concept of “domicile” was surprisingly dominant.

The relevant constitutional text, from Section 1 of the Fourteenth Amendment, is quite brief: “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.” It does not contain the word “domicile”—or any derivative thereof. So why was the D-word invoked so frequently in the Barbara argument?

The most important precedent on the issue of birthright citizenship is the Supreme Court’s ruling in United States v. Wong Kim Ark (1898). As you can tell based on how frequently it’s invoked in the ACLU’s brief—as well as how Justice Gorsuch pointedly told John Sauer during the argument, “I’m not sure how much you want to rely on Wong Kim Ark”—its language and reasoning heavily favor the challengers.

But in terms of its facts, Wong Kim Ark involved an individual born in San Francisco to Chinese nationals who were, at the time of his birth, “domiciled residents of the United States.” So the Trump administration seeks to limit the sweep of Wong Kim Ark to the children of “domiciled” U.S. residents—in its view, citizens and lawful permanent residents of the United States, but not undocumented immigrants or temporary visitors.

And the administration’s argument got a fair amount of traction from the justices at oral argument. If you do a “find” in the transcript for “domicil”—which captures derivative terms, such as “domiciled” or “domiciliaries”—you’ll get 161 hits (including the index). So the justices are giving serious thought to the administration’s position, not dismissing it out of hand—which is why I left the argument feeling that the government’s chances are better than I originally thought.

4. It’s possible the case will be resolved based on a statutory rather than constitutional ground.

If you look back at the question presented by Barbara, you’ll see it’s a compound question: it contains a constitutional question, whether the EO complies with the Fourteenth Amendment, and a statutory question, whether the EO is consistent with 8 U.S.C. § 1401(a), a codification of the Fourteenth Amendment’s citizenship clause.

The relevant language of § 1401(a), extending citizenship to persons “born in the United States, and subject to the jurisdiction thereof,” is pretty much the same as the operative language of the Fourteenth Amendment. But even if the Trump administration is right on the Fourteenth Amendment, the EO still might violate § 1401(a). Why? From the ACLU brief (citations omitted and emphasis added):

The Order also violates 8 U.S.C. §1401(a), which is an independent basis for affirmance. As Respondents previously explained, the statute borrows the phrase “subject to the jurisdiction thereof” from the Citizenship Clause and thus incorporates the understanding of those words that prevailed when the statute was first enacted in 1940 and reenacted verbatim in 1952. At that time—as the government all but concedes—Congress understood that the Clause’s “jurisdiction” language incorporated the English common-law rule and exceptions, with the sole additional exception of Native American tribal members.

The statutory argument got surprisingly few mentions during the argument—and one can understand why. As Cecillia Wang of the ACLU told Justice Kavanaugh, although she and her client would be “happy to win on either or both” of their arguments, they believe “it would be prudent for the Court to reaffirm its decision in Wong Kim Ark.” And this makes sense as well: as Professor Amanda Tyler noted on Advisory Opinions, if the case gets resolved on a statutory ground, the constitutional question could return to the Court—e.g., if the Trump administration issues a new, narrower EO.

But if there aren’t five votes for any particular position on the constitutional issue, resolving the case based on the statutory question could become more attractive to the justices. And based on the Barbara argument, the views of the justices on the constitutional issue appear more muddled than many of us expected.

5. The “conservative” position pushed policy considerations, while the “liberal” position focused on text, history, and tradition.

Constitutional debates over politicized issues often assume the following form: liberals and progressives invoke policy considerations, such as some terrible thing that will happen if the case is decided against them, while conservatives cite text, history, and tradition—regardless of policy consequences.

But in Barbara, these traditional positions appear to be reversed. As David French quipped on Advisory Opinions, “you don’t often see an ACLU lawyer pushing original public meaning.” But that’s exactly what Cecillia Wang was doing: she focused intensely on (1) the text of the Fourteenth Amendment, which doesn’t contain the word “domicile”; (2) history, in terms of contemporaneous sources that confirm the challengers’ understanding of the citizenship clause in 1868 (such as debates between framers); and (3) tradition, in the form of interpretations of the clause over the decades that support the challengers’ views.

In contrast, Solicitor General John Sauer spoke more about policy considerations (in addition to engaging the ACLU and the justices on the textual and historical points). He discussed the serious problem of illegal immigration, which didn’t exist at the time the Fourteenth Amendment was ratified, including the phenomenon of “birth tourism,” in which people come to the United States—often as tourists—to give birth here, so their babies will be American citizens.

As mentioned above, it’s possible—albeit unlikely—that the administration will prevail. But if it does, it will be because Sauer persuaded the justices on the legal issues, not because of any policy considerations. As Chief Justice Roberts memorably quipped—responding to Sauer’s invocation of birth tourism, a new phenomenon (at least compared to the oldness of the Fourteenth Amendment)—“Well, it's a new world. It’s the same Constitution.” (Put that on a t-shirt!)

So those are my thoughts. Readers, what do you think? Please take my poll below, and please share your views in the comments—which, as a Notice & Comment post, allows comments by any and all readers, not just paid subscribers. Thanks!

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