Justices question administration's 'quirky' arguments in birthright citizenship case

[0:00] We've just been listening to the Supreme Court hearing on President Trump's executive order [0:03] on birthright citizenship. Now, that order would limit birthright citizenship to children of U.S. [0:09] citizens or legal permanent residents. The 14th Amendment and federal laws say all persons born [0:14] or naturalized in the U.S. and subject to the jurisdiction thereof are citizens. Now, the ACLU [0:19] argues that that applies to children born on U.S. soil regardless of their parents' legal status. [0:25] But the Trump administration says children of illegal or temporary residents should not be [0:29] considered subject to the jurisdiction of the U.S. and thus not included in the 14th Amendment. [0:35] The president was there in person, also making him the first sitting president to ever attend [0:40] a Supreme Court hearing. Let's bring in ABC News legal contributor Kim Whaley and ABC's Peter [0:44] Haralambas for more on these oral arguments. Hi to you both. A really eventful day in the [0:49] court today. So, Kim, several justices seem to cast doubt on the Trump administration's [0:54] interpretation of that clause in the 14th Amendment, subject to the jurisdiction [0:59] thereof. [0:59] What did you make of the justices' questions and the Solicitor General's responses to their [1:04] challenges? [1:07] With the exception, perhaps, of Justice Alito, General Sauer had a very difficult time making [1:12] his argument. Essentially, the clean reading of that is that within the jurisdiction means you [1:18] were born within the territory of the United States. And that has been the reading since 1898. [1:24] And in that case, Wong Kim Ark, the court applied common law, English law, [1:30] which is a lot of what our law is based on, the English law, and it's consistent with that. So, [1:36] very clean, easy reading. General Sauer, you have to take multiple steps across the pond, [1:41] lots of rocks, right, to get to his theory. He's saying jurisdiction actually doesn't mean [1:47] territory. It means allegiance. And how do you define allegiance? It's not by loyalty. It's by [1:52] domicile. How do you define domicile? It's lawful residence plus an intent to remain, [1:57] but you don't actually need to look into somebody's intent. [2:00] You look at lawful residence, bingo, now you're in immigration and whether you're lawfully in the [2:06] country. It's just too many steps removed. And even the more conservative justices with the [2:11] president of the United States in the courtroom for part of it were not willing to go that far [2:17] and stretch the logic to the place where General Sauer was trying to take it. [2:21] Peter, I want to play an exchange also between Justice Amy Coney Barrett [2:24] and the Solicitor General. Let's listen to that. [2:27] I think there are marginal cases. That one, I think, has the benefit of being [2:30] quite a bit less than that. [2:32] I think there are, but there are also some problems. [2:34] There is a question, 1401F, where it talks about... [2:38] Yeah, yeah, yeah, yeah. But what about the Constitution? [2:41] Under the Constitution, it's domicile. I mean, look, domicile is a constitutional standard in all kinds of other situations. [2:49] Well, and it's hard. [2:50] Diversity jurisdiction, personal jurisdiction, it's hard. [2:51] I can't remember a time when justice was so blunt and say, yeah, yeah, yeah, but what about the Constitution, Peter? [2:56] We knew the more left-leaning judges were going to be a hard sell here, but were you surprised to hear the level of pushback from some of the more conservative justices? [3:01] the conservative majority. I mean, looking at my notes here, Kavanaugh, Roberts, Gorsuch, Barrett, [3:06] all of them signaled kind of a deep skepticism to this argument, and at times they kind of trashed [3:11] on the argument. Roberts said the Trump administration is relying on, quote, [3:15] tiny and idiosyncratic ideas. Gorsuch suggested they were relying on, quote, Roman law. Kagan, [3:22] part of the liberals, noted that they're relying on obscure sources, all of them basically [3:27] suggesting that this is a fringe argument that, overall, they seem unlikely to accept. [3:32] What did you make of their reception to the ACLU's arguments? [3:36] You know, certainly that was much less of an uphill battle. They questioned this ACLU [3:41] attorney a lot about the, really, the main Supreme Court precedent here, Wong Kim Ark, [3:46] and why that case mentioned this idea of domicile, this idea that the individual in that case was [3:52] living in San Francisco for a period of time. And what's interesting, Justice Jackson, [3:57] apparently, said that the ACLU was living in San Francisco for a period of time. And what's [3:57] interesting, Justice Jackson, apparently, said that the ACLU was living in San Francisco for a period of [3:57] time. And what's interesting, Justice Jackson, apparently, said that the ACLU was living in San [3:57] Francisco for a period of time. And what's interesting, Justice Jackson, apparently, said [3:57] that the ACLU was living in San Francisco for a period of time. And what's interesting, Justice [3:58] Jackson, apparently, said that the ACLU was living in San Francisco for a period of time. And [3:58] for the Trump administration, in the way, basically saying that the mention of domicile in that [4:03] opinion might have been a political thing by the court more than a century ago, acknowledging the [4:08] fact that there was so much anti-Chinese sentiment, [4:11] putting mention of domicile into that opinion to make it more receptive and easier for the [4:15] American public to understand and receive. Person 009 [4:18] And, Kim, both sides referenced the Wong Kim Ark case. He was deemed to be a citizen under [4:22] the 14th Amendment, despite being born to Chinese parents. How do you see that [4:27] playing into the justices decision here well the way the law works and we saw [4:32] this for example with Roe versus Wade and Dobbs a big deal reversing precedent [4:37] the precedent stands unless there's an excellent really really strong argument [4:41] to overrule it in particular that it was wrong to begin with and so the [4:47] government has a very high hurdle to overcome but was what was really strange [4:51] was that General Sauer was trying to persuade the justices that they could [4:56] just accept his completely alternative reading of that case from 1898 that's a [5:02] very odd argument for a lawyer to make that the government wasn't willing to [5:06] acknowledge what they're asking the court to do is to reverse that ancient [5:10] precedent and that alone might make it very very hard for the court to find for [5:15] the Trump administration on in this case and Peter the word domicile kept coming [5:19] up we actually heard it in that exchange with Amy Coney Barrett and Sauer because [5:23] the Wong Kim Ark case specified that his parents [5:26] had [5:26] had a [5:26] permanent residence and domicile in the United States the justices seem to [5:31] differ on how relevant that is here yeah I guess one thing that did unite [5:35] them at least is the fact that so many of them were interested in it by my [5:38] count at least five of the justices asked direct questions about this issue [5:43] of domicile and ultimately the argument the ACLU make it was making is at the [5:47] end of the day domicile is not a defining characteristic of that case [5:51] that at the end of the day Wong Kim Ark's right to birthright citizenship [5:54] was affirmed because he was a citizen of the United States and he was a citizen [5:56] he was born here under U.S. parents the question of whether or not his parents lived here [6:01] whether he lived here long enough was kind of secondary to the point and when you look [6:05] at the application of the law over the last century you know the U.S. government generally [6:10] has agreed in that interpretation coming to this conclusion that anyone born on the U.S. [6:14] soil is entitled to birthright citizenship Kim Sauer also brought up birth tourism the [6:19] idea that foreign nationals come to the U.S. just to have a child here who can become a [6:23] citizen but that sounds like more of a legislative issue. [6:26] I think it demonstrates that he has a really difficult time making actual legal [6:37] arguments based on the law and so he sort of nodding to this this issue which I think is [6:44] really at the heart of the argument that the problem that we're facing in 2026 is illegal [6:49] immigration that wasn't an issue at the time of ratification of the 14th amendment or the [6:55] original Civil Rights Act which the court. [6:57] Talked about a lot because they kind of went hand in hand and so he's trying to persuade the [7:01] justices that almost a more progressive argument listen it's it's a constitution evolves over [7:07] time and we need to update the reading of birthright citizenship to 2026 and this is just [7:15] not the court to make that argument for because it's a conservative court that purports to to [7:21] stick with the plain language doesn't always do it but plain language history tradition the [7:26] original. [7:27] 10 and all of this precedent so I think it fell on pretty deaf ears and Kim I want to play an exchange for you between Justice Sonia Sotomayor and the solicitor general about how the government's arguments would change the way the 14th amendment is applied I'm asking whether the logic of your theory would permit what happened after the courts decision and trend that the government could move to unnatural eyes people who were born here. [7:59] Of illegal residents. [8:02] No we believe with the court should do what it did in sessions against morales Santana where it was there was a such a a ruling that would have deprived people who are already citizens of citizenship in the courts that the supplies prospectively only and we think that's the overall course here but. [8:15] That's not what we did in trend. [8:17] We think that with those sessions provides the proper course here and that's or asking your not asking for any retroactive relief. [8:24] So can the government here is being very clear that they are asking for this to apply to children. [8:28] With. [8:29] Their parents. [8:30] And other children. [8:31] And. [8:31] Their. [8:31] born in the U.S. in the future, not current citizens by birthright. How easy is it for [8:37] the court to actually limit that and prevent this from becoming more broad if they do uphold this [8:42] order? So there are two issues here. One is what's the proper reading of the Constitution? And as you [8:48] indicate, the other one is practically and pragmatically, how does this work? And on the [8:53] one hand, in that clip, Justice Sotomayor was concerned about this idea, well, it's only [8:58] prospective. It's only for future children born in the United States. But that's tricky because [9:04] generally that's not how the Constitution works. It's either constitutional or unconstitutional. [9:09] And then I think it was Justice Jackson that said, well, how do you actually implement this [9:14] in the hospital? There were questions about, is it the dad or the mom who has to be a legal resident? [9:21] And the government said, well, it's the moms. That's not in the Constitution. Well, if it's [9:25] the moms, who decides that? And General Sauer, [9:28] had a problem with that and basically admitted that for some newborns, you might have to get a [9:34] judge involved and actually have evidence and a mini trial to decide if that person constitutes [9:40] domiciled within the meaning of President Trump's new definition. [9:45] All right, Kim Whaley, Peter Haralambas, thank you both.