Chief Justice Roberts Challenges Trump DOJ Over ‘Tiny’ and ‘Idiosyncratic’ Examples in Birthright Citizenship Case

Chief Justice John Roberts struck a skeptical tone on Wednesday during oral arguments at the Supreme Court on the Trump administration’s challenge to a lower court ruling striking down the president’s executive order ending birthright citizenship.

Solicitor General John Sauer argued before the court that the 14th Amendment, which grants all people born in the U.S. citizenship, has been misinterpreted over the decades. Trump attended oral arguments, the first sitting president to ever do so, given the long-held separation of powers between the branches.

The key clause in the Constitution in question reads, “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 has argued that the general understanding of citizenship is inaccurate and that children of noncitizens are not “subject to the jurisdiction” of the U.S. and therefore do not benefit from the Constitution.

“As to your second question, if you look at the text of the clause, it says, you know, ‘born in the United States’ — born or naturalized in the United States and subject to the jurisdiction thereof — are citizens of the United States and the states in which they reside. So there’s a constitutional guarantee that applies to both federal or national and state citizenship,” Sauer said, in response to a question from Justice Clarence Thomas. He added:

And the key point we make there is that the word “reside,” if you look at, for example, Section 1473 of Justice Story’s Commentaries, was understood to mean domicile. So when they say “subject to the jurisdiction” and then go on to say you’re a citizen of the United States and the state in which they reside, the very text of the clause itself presupposes that the citizen is domiciled in the United States. If they’re a resident of any state at all, they reside there. “Reside” means domicile in the Constitution, and we think that strongly supports our interpretation. It’s textual evidence of our domicile-based theory of jurisdiction.

Roberts then jumped in, “Well, starting with that theory, you obviously put a lot of weight on ‘subject to the jurisdiction thereof.’ But the examples you give to support that strike me as very quirky. You know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to the whole class of illegal aliens here in the country. I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”

“Those are sort of narrow exceptions — ambassadors, foreign public ships, tribal — and it’s an enormous one that they were very focused on in the debates as well. But what I do is invite the court to look at the intervening step, which is the enactment of the Civil Rights Act of 1866,” Sauer replied, adding:

And there they didn’t say “subject to the jurisdiction thereof.” There it says “not subject to any foreign power.” Now, if you go back to Blackstone and Calvin’s Case, they say it does not matter if you are subject to a foreign power — if you are born in the king’s domains, you have this indefeasible duty of allegiance to the king at any time. So there’s a clear repudiation in the Civil Rights Act.

The Civil Rights Act is this breakwater which makes it very, very clear that they are not thinking about allegiance in the terms of the British common law; they’ve adopted the republican conception of allegiance. So it’s from “not subject to any foreign power,” and then the debates just a couple of months later make it very clear that they are recodifying this same conception.

They were dissatisfied with the potential ambiguity in the phrase “Indians not taxed,” and they adopted “subject to the jurisdiction thereof.” And one of the strongest statements of this is Senator Trumbull’s statement, which he quoted at the beginning, where he is asked what “subject to the jurisdiction thereof” means, and he says it means not owing allegiance to anybody else — that is what it means — and this court picked up on that in Elk v. Wilkins, where it uses, you know, “completely subject to political jurisdiction,” not merely regulatory jurisdiction.

Watch the clip above via MS NOW.

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