A majority of the Supreme Court justices seemed skeptical of the Trump administration's argument on birthright citizenship Wednesday and appeared ready to rule in favor of upholding automatic citizenship for babies born on U.S. soil.
That included multiple conservative justices, who had tough questions for Trump's solicitor general, D. John Sauer. Sauer argued the government's case against birthright citizenship, the practice enshrined in the 14th Amendment in the Constitution, which became law in 1868.
It states: "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."
Sauer, however, asserted that contrary to the law as understood for 160 years, the 14th Amendment does not confer automatic citizenship on every baby born in the U.S. He told the court that the true meaning of the amendment was to grant citizenship to former slaves and their children, no more. And, therefore, President Trump was well within his rights when he signed an executive order barring citizenship for children born in this country to parents who are illegally here, or who are here legally, but on long-term visas.
But Chief Justice John Roberts was doubtful about that executive order.
"The examples you give to support that strike me as very quirky," Roberts told Sauer. "And then you expand it to a whole class of illegal aliens," he continued. "I'm not quite sure how you can get to that big group from such tiny and, sort of, idiosyncratic examples."
"We're in a new world now," Sauer contended. "A billion people are one plane ride away from having a child who's a U.S. citizen."
"It's a new world," Roberts replied, but "it's the same Constitution."
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Justice Neil Gorsuch noted that the Trump executive order focuses on parents, but the 14th Amendment focuses on birthright for the child. He asked: how would you know who the father is, or the mother? What if they're unmarried? Whose house do they live in?
Justice Amy Coney Barrett questioned the practicality of the Trump proposal.
"How would it work?" she asked. "How would you adjudicate these cases? You're not going to know at the time of birth whether they have the intent to stay or not, including U.S. citizens by the way."
Justice Ketanji Brown Jackson wondered, "So [are] we bringing pregnant women in for depositions? What are we doing to figure this out?"
The justices also grilled Sauer about the landmark 1898 case of Wong Kim Ark, in which the U.S. Supreme Court ruled that Wong had birthright citizenship, because he was born in the United States. Sauer, however, maintained that Wong was only given birthright citizenship because his parents were legally domiciled in the United States.
"I think even your brief concedes that the position you're taking now is a revisionist one with respect to a substantial part of our history," Justice Elena Kagan said. "That's, in part, because of Wong Kim Ark and the way people have read that case ever since then."
Challenging the Trump birthright plan, the American Civil Liberties Union's Cecillia Wang told the Supreme Court that the 14th Amendment was enacted after the Civil War in order to have a universal rule of citizenship, subject to a closed set of exceptions, and that the birthright applies to all children born on U.S. soil.
"We can't take the current administration's policy considerations into account to try to re-engineer and radically re-interpret the original meaning of the 14th Amendment," Wang argued.
However, in reference to current perceived immigration problems versus those that existed at the time the 14th Amendment was enacted, Kagan posited: "What do we do if we think we have a new problem that didn't exist at the time of the 14th Amendment?"
Justice Brett Kavanaugh followed up, asking whether the provisions of the 14th Amendment are frozen in place.
Yes, replied Wang, because the framers of it were intent on putting the citizenship question out of the reach of Congress.
The decision, expected by this summer, will almost certainly result in a historic ruling, and Trump himself made his mark at the court Wednesday morning.
He became the first sitting president known to attend oral arguments, signaling the importance of this issue to him personally.
After leaving the courtroom before the arguments were over, he wrote on Truth Social, "We are the only Country in the World STUPID enough to allow 'Birthright' Citizenship!" In fact, roughly three dozen countries offer it.
Trump arrived about 10 minutes before the arguments began, listened to Sauer field the justices' questions for a little over an hour and then left a few minutes after Wang began to make her case.
Outside the court, dozens of people rallied in support of birthright citizenship
Volunteers with the ACLU, joined by immigrant rights organizations like CASA and the League of United Latin American Citizens, handed out fliers that read "protect birthright citizenship" and "14th Amendment."
"We're all out here to protect the fundamental right of birthright citizenship. It's written in the 14th Amendment," said Anu Joshi, a staff member of the ACLU. "It's what makes us America."
Among the crowd were several people who were citizens by birthright themselves.
"I am a birthright citizen so this hits really, really close to home because without birthright citizenship I wouldn't even have my citizenship in the United States," said Stephanie Sanchez, a first-generation Mexican-American who came to the rally. "Here I am representing my community and fighting back."
After the arguments, ACLU Executive Director Anthony Romero told the crowd he felt confident in the way the arguments played out inside.
"We are fighting for the heart and soul of this country. The fight to protect birthright citizenship is about our neighbors, our families, our kids. It's not about the past, it's about the future," he said. "We will only accept what is just and what is right."
Largely absent from the crowd were proponents of the president's position.
Domenico Montanaro, Ximena Bustillo and Anusha Mathur contributed to this story.
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