We have some big news this afternoon. The Supreme Court just finished hearing oral arguments in a case that could decide whether or not Donald Trump will be able to change the 14th Amendment to the United States Constitution to make birthright citizenship obsolete for those who have parents who are undocumented. And while after hearing over two hours of oral argument, I can confidently say both as a journalist and as a lawyer who has studied constitutional law in the past that this Supreme Court is poised to rule against the president of the United States. And it's maybe why he left in the middle of oral argument after his solicitor general was peppered with questions from the conservatives and the liberals on the court. I watched the entire oral argument so that you didn't have to. And I'm going to break down some of the key moments for you in this video. Before I do, make sure to like, comment, share, and subscribe. Subscribe to my Substack. Click the link below to support my work as I get you this in real time throughout the day, throughout the week. We're fighting to build something independent, and I'm bringing it to you not just from a journalistic perspective, but also from a legal one. So, please subscribe if you can. I rely on you. So, let's break it down.
Today's Supreme Court arguments turned on a simple question: whether an individual born to two undocumented parents in the United States of America is automatically entitled to birthright citizenship under the United States Constitution. The 14th Amendment to the United States Constitution is clear in what it says regarding birthright citizenship. It says that all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States of America and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens in the United States, nor shall any state deprive any person of life, liberty, or property without due process of law. That's the due process clause of the 14th Amendment. And while Trump is arguing that those born to two undocumented parents are not subject to the jurisdiction thereof of the United States, but the first clause, born or naturalized in the United States, well, that is what this question turns on. If you are born, are you a citizen? And the answer to that is seemingly yes. And it looks as though the justices will agree. I want to begin by showing you a moment from Chief Justice John Roberts, a conservative on the bench, who contradicted what Trump's attorneys were trying to argue. Take a listen.
Their interpretation has made a mess of the provision.
Well, it certainly wasn't a problem in the 19th century.
No, but of course, we're in a new world now, as Justice Alito pointed out, to where 8 billion people are one plane ride away from having a child who's a US citizen.
Well, it's a new world. It's the same constitution.
It is. And as Justice Scalia said, I think in the case that Justice Alito was referring to, you've got a constitutional provision that addresses certain evils and it should be extended to reasonably comparable evils. He said that about statutory interpretation. I think the same principle applies here. And I think we quote that in our...
It's a new world, but it's not a new constitution. And I think that's a critical point that a lot of folks are making. Well, if you look at the text of the constitution, the text of the constitution is clear. But what John Sauer and the Trump administration are arguing isn't that clear. And well, Justice Coney Barrett, another conservative, kind of laid this out pretty clearly for him. Take a listen.
That creates allegiance. Is that general?
You said in your reply brief that the children of slaves who were brought here unlawfully, you know, in defiance of laws forbidding the slave trade, would in fact be citizens. And we can imagine that their parents were not only brought here in violation of United States law but were here against their will and so maybe felt allegiance to the countries where they were from. And you say that the purpose of the 14th Amendment was to put all slaves on equal footing, newly freed slaves on equal footing, and so they would be citizens, but that's not textual. So how do you get there? You say it in just a few sentences. So can you elaborate?
Sure. If you look at the, I think if you look at the 19th century sources, what you see is that even though their entry may have been unlawful, 19th century antebellum law never treated their presence as unlawful. In fact, quite the opposite.
But it's not just Justice Coney Barrett and Justice Roberts who were a little concerned about this oral argument. It's also Justice Gorsuch. And there was a moment during today's argument where Justice Gorsuch plainly asked Trump's lawyers, "Hey, under your legal theory, would Native Americans be considered US citizens?" Take a listen to what he had to say.
You think Native Americans today are birthright citizens under your test and under your friend's test?
Uh, I think so. I mean, obviously they've been granted citizenship by statute.
Put aside the statute. You think they're birthright citizens?
No. I think the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright.
I understand that's what they said. But your test is the domicile of the parents. And that would be the test you'd have us apply today, right?
