Sotomayor Grills Trump Solicitor General: Are You Asking to Allow the Government to ‘Unnaturalize People?’

Supreme Court Justice Sonia Sotomayor grilled Solicitor General John Sauer on Wednesday during oral arguments regarding President Donald Trump’s executive order ending birthright citizenship, which is a key clause in the 14th Amendment.

Sauer and Justice Samuel Alito exchanged thoughts on the history of birthright citizenship and the lack thereof in some European countries before Sotomayor jumped in.

“I agree with you on what the European nations’ rule is, but England was always different, wasn’t it?” she asked.

“Not until 1983 did it change,” Sauer replied as Sotomayor hit back, “That’s not quite true.”

“The Wong Kim Ark does a wonderful job of laying out the English rule. And you claim it was different, but there aren’t any treatises or scholars who say it’s different. The English rule was always by birth. Other countries were not by birth. Let me just go to the implications of what you’re asking us to do. You are asking us to overrule Wong Kim Ark,” Sotomayor continued, referring to the landmark 1898 case, which first established that the 14th Amendment gave citizenship to the children of non-citizens.

“Well, there, Wong Kim Ark’s parents were domiciled in the US, but they owed loyalty to China. They eventually returned to China, so they didn’t have a primary allegiance to the United States. So you’re not asking that. Are you asking us to overrule then our cases, one of which said that a child of illegal aliens was a citizen? You’re asking us to overrule that,” Sotomayor pressed.

Sauer replied, “No, first of all, we’re not asking you to overrule Wong Kim Ark. We agree with the holding of Wong Kim Ark and much of the reasoning. And then as to those later cases, starting in 1966, where the court makes sort of unreasoned references to this issue.”

Sotomayor hit back by citing a case where “the respondent unlawfully overstayed her visa and gave birth to a child here. The court held in the second row that the child is, of course, an American citizen.”

“That person wasn’t domiciled here lawfully. So you’re asking us to overrule that case,” Sotomayor insisted.

“I wouldn’t say we’re asking to overrule. We think that’s similar to a drive-by jurisdictional ruling where there’s a simple statement that’s not debated, there’s no further analysis of it. There’s really an assumption there, and we think that is similar to cases where the court just assumes jurisdiction without discussing it,” Sauer replied.

Sotomayor continued, “We ruled in Thind that Indians could not become citizens. The government then began to unnaturalize many Indians who had been sworn in as citizens. You ask us to concentrate only on the prospective nature of the court’s order. But the logic of your position, if accepted, is that the next president, this president or the next president, or a Congress or someone else could decide that it shouldn’t be prospective. There would be nothing limiting that, according to your theory.”

“If, as we ask, the court confines its ruling to prospective relief only —” Sauer tried to clarify as Sotomayor cut in:

No, I’m saying to you — yeah, that’s what you’re asking us for relief right now. I’m asking whether the logic of your theory would permit what happened after the court’s decision in Thind, that the government could move to unnaturalize people who were born here of illegal residents.

Sauer replied, “No, we believe the court should do what it did in Sessions v. Morales-Santana, where there was a ruling that would have deprived people who are already citizens of citizenship, and the court said this applies prospectively only. We think that’s the appropriate course here. But that’s not what we did in Thind. We think Sessions provides the proper course here, and that’s what we’re asking. We are not asking for any retroactive relief.”

Watch the clip above via Fox News.

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