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Wednesday’s Supreme Court arguments over birthright citizenship went very poorly for Donald Trump. The president watched from the front row as a majority of the justices expressed deep skepticism toward his executive order seeking to deny U.S. citizenship to the American-born children of many immigrants. He walked out of the courtroom midway through arguments and later ranted on Truth Social that the nation is “stupid” for protecting this fundamental right. Trump is not a sophisticated legal observer, but even he seemed to understand that the case is not going to go his way.
There was no single turning point against the administration at arguments—but one exchange between Justice Amy Coney Barrett and Solicitor General John Sauer may have locked in the government’s loss. On a special Slate Plus bonus episode of Amicus, co-host Mark Joseph Stern discussed this pointed exchange with Evan Bernick, a professor at Northern Illinois University College of Law and co-author of a significant amicus brief in the case. A preview of their conversation, below, has been edited and condensed for clarity.
Mark Joseph Stern: Justice Barrett had a lot of skeptical questions for the solicitor general. And she really drilled down on his theory that children do not receive birthright citizenship if their parents lack “domicile” in the United States or hold “allegiance” to a foreign power. She asked how the government would know whether certain immigrants intended to stay in the country or maintain loyalty to a foreign power. And where would we draw the line? What about, for instance, the child of a woman who’s illegally trafficked into the U.S. then gives birth here? Is that person an automatic citizen?
Sauer kept returning to his claim that the lone purpose of the 14th Amendment’s citizenship clause was to overturn Dred Scott and grant citizenship to newly freed slaves and their children. But then Barrett asked: What about slaves who were brought to this country illegally and against their will, as many were? Surely some of them still “felt allegiance to the countries where they were from” and intended “to return as soon as they can.” So wouldn’t their children be excluded from birthright citizenship, too? And if so, doesn’t that just blow up Sauer’s theory that the whole point of this clause was to protect the citizenship of these exact people?
Evan Bernick: Justice Barrett likes to show why history supports a rule that makes sense rather than doing history just for the sake of history. She wants to show how there’s latent wisdom to the rule that was incorporated into this history. And for Barrett, that is the rule of jus soli—the idea that if you’re born in a place and governed by that place, you’re a citizen of that place. If you have that rule, you don’t have to worry about the “domicile” or “allegiance” of people who were illegally trafficked.
She made very clear that she viewed the children of slaves through the lens of unlawful immigration. She thought that the situation of enslaved people’s children was not something that could be settled on the basis of any domicile requirement. Because if we think about domicile as “presence with intent to remain,” well, enslaved people didn’t intend to remain anywhere! They were taken. They were forced into a place. So domicile can’t be the rule, because then you can’t unproblematically grant citizenship to the children of formerly enslaved people.
Just to draw this out: Sauer’s argument is that if people came here illegally, their children don’t get birthright citizenship. Barrett responded: OK, but many slaves were brought here illegally, and everyone acknowledges that the point of the 14th Amendment first and foremost was to grant citizenship to them and their children. So this felt like the moment that Sauer completely lost the case, because he had to admit that his chief theory cannot be squared with what he himself acknowledges the 14th Amendment was ratified to do.
Yes. And I inferred another implication from what Barrett was saying: If domicile is the rule, and domicile requires that you have the permanent intention to stay in a place, enslaved people who were forcibly imported into the country against their will did not have an intention to stay there. So if we’re going to tie the status of children to whether their parents are “domiciled,” under Sauer’s own theory, why would the children of formerly enslaved people be citizens at all? The citizenship clause would not accomplish its most basic function of overruling Dred Scott.
So I think that is what’s going on with Barrett. She read the briefs. She has a firm idea about the distinction between two very different theories of citizenship: jus soli, based on soil, and jus sanguinis, based on descent. The former is much less complicated than the latter. The framers of the 14th Amendment had good reasons to use the less complicated one. And we have good reason to keep it, because it prevents all these very complicated problems from subsequently arising.
Barrett did ask tough questions of the ACLU’s Cecillia Wang, who argued against Trump’s order. She really pressed Wang on whether Congress could expand the limited classes that do not receive birthright citizenship. What did you make of that?
Wang took the position that the set of exceptions to birthright citizenship is closed. Congress can’t create new exceptions to birthright citizenship, but it can get rid of old exceptions. And Barrett was unsatisfied with this, because Wang didn’t really elaborate a theory about it. So it came off more as “this is good policy” rather than “I’ve got text and history on my side.” And Barrett wondered where this closed set came from.
But you still think this case will probably come down 7–2 against Trump with Barrett in the majority?
Absolutely. Barrett was outright hostile to the solicitor general’s arguments. I just think her professor mindset was triggered by some of Wang’s answers.
