Trump-Appointed Justice Roasts Trump Lawyer’s Reliance on ‘Roman Law’ in Citizenship Case

Trump-appointed Supreme Court Justice Neil Gorsuch roasted Solicitor General John Sauer over the citations in his argument during oral arguments in the highly-anticipated birthright citizenship on Wednesday.

Trump signed an executive order ending birthright citizenship during the first days of his second term, which was promptly blocked by a lower court in a ruling that was upheld by a three-judge panel of the 9th U.S. Circuit Court of Appeals.

The Supreme Court heard arguments in the case — Trump v. Barbara — on Wednesday morning, with Trump in attendance. While it’s tough to forecast based on questioning, things did not seem to be going great for Sauer early on.

Chief Justice John Roberts expressed undisguised skepticism during one exchange, and Gorsuch’s tone was near-mocking as he roasted Sauer’s references rooted in “Roman law”:

JUSTICE NEIL GORSUCH: I’m just working within your argument for a moment. Today you can point to laws against immigration that are much more restrictive than they were in 1860. We really didn’t have laws like that. We do today until maybe 1880. So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to any immigration laws. There they were. And so why wouldn’t we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial?

SOLICITOR GENERAL JOHN SAUER: I would first cite Wong Kim Ark on that point because Wong Kim Ark says you’re

JUSTICE NEIL GORSUCH: Well, I’m not sure how much you want to rely on Wong Kim Ark.

SOLICITOR GENERAL JOHN SAUER: But that state, there is a statement in there that says, so long as they are permitted to be here. So Wong Kim Ark, keep in mind that by the time they decide Wong Kim Ark in 1899.

JUSTICE NEIL GORSUCH: But that’s 1898. Now I’m looking at 1868, you’re telling me is when I should look, and the test for domicile. And the stuff you have about unlawfully present, it’s like Roman law sources you’re going to.

SOLICITOR GENERAL JOHN SAUER: First and second, restatements, as well–.

JUSTICE NEIL GORSUCH: Yeah– but– but.

SOLICITOR GENERAL JOHN SAUER: –and decisions of this court–

JUSTICE NEIL GORSUCH: So it wouldn’t be the INA that would control whether you’re capable of having Donna silent. It would be whatever the law was in 1868.

SOLICITOR GENERAL JOHN SAUER: Well, I think that this is addressed by my exchange with Justice Alito from earlier, which is that this concept, jurisdiction, baking in allegiance in Tomasson is applied to.

JUSTICE NEIL GORSUCH: Continually restrict who may lawfully be present more and more and you’d say that would be incorporated into it even though you’re telling us to apply the original meaning of 1868.

SOLICITOR GENERAL JOHN SAUER: The original meaning of domicile. And so the question is, is there any argument that the framers intended to preclude Congress from dictating who can and who cannot establish a lawful domicile here? I don’t see any evidence of that in the congressional record, so it’s a natural extension.

JUSTICE NEIL GORSUCH: Whose domicile matters? I mean, it’s not the child, obviously. It’s the parents you’d have us focus on. And is it the husband? Is it the wife? What if they’re unmarried? Whose domicile?

SOLICITOR GENERAL JOHN SAUER: Well, in the executive order, it draws a distinction between the mother and the father. That’s really the mother’s domicile. I think that would matter.

JUSTICE NEIL GORSUCH: Well, but 1868 matters, you’re telling us, so what’s the answer?

SOLICITOR GENERAL JOHN SAUER: The 1868 sources talk about parental not aware of them drugging a six-year-old mother or father, but they say the domicile of the child follows the domicile of a parent.

JUSTICE NEIL GORSUCH: And how are we going to determine domicile? I mean, would we use contemporary sources on what qualifies as domiciled in a state, or do we look in 1868 and do we have to do this for every single person?

SOLICITOR GENERAL JOHN SAUER: And again, I don’t see a strong distinction between those because, of course, domicile is a high-level concept, has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently that domiciled, when you’ve come to a new nation, you say, I’m here for it to stay, you become part of their political community and you become akin to a citizen. And that’s reflected very strongly in the case I cited before.

JUSTICE NEIL GORSUCH: And just to circle back to Justice Kagan’s point, it’s striking that in none of the debates do we have parents discussed. We have the child’s citizenship and the focus of the clause is on the child, not on the parents. And you don’t see domicile mentioned in the debates. That’s the absence is striking.

SOLICITOR GENERAL JOHN SAUER: I think the 19th century sources would say a child, a newborn child, lacks the capacity to form a domicile, so they’re imputed the domiciles of their parents, so I don’t think they would have seen a distinction between children and parents. I point out that their position, like ours, is forced to look at the domicile of the parents because we look at exceptions that they accept.

JUSTICE NEIL GORSUCH: I’m talking about in the debates over the 14th Amendment and the Civil Rights Act. It’s striking that these concepts aren’t discussed in them.

Watch above via MS NOW.

New: The Mediaite One-Sheet "Newsletter of Newsletters"
Your daily summary and analysis of what the many, many media newsletters are saying and reporting. Subscribe now!