LIVE: Landmark SCOTUS Oral Argument on Birthright Citizenship

The Trump administration, represented by John Sauer, argues that the phrase 'subject to the jurisdiction thereof' in the 14th Amendment's Citizenship Clause implies a requirement of 'direct and immediate allegiance,' which can only be established through lawful parental domicile. This interpretation would exclude children born in the U.S. to temporary visitors or undocumented immigrants from birthright citizenship.

Sauer cites legislative history from the Civil Rights Act of 1866 and Senator Trumbull's statements, claiming 'subject to the jurisdiction thereof' means 'not owing allegiance to anybody else.' He also references historical commentators who, he claims, uniformly excluded children of temporary visitors.

Cecilia Wang, representing the ACLU, argues that the 14th Amendment enshrined the English common law rule of *jus soli*, meaning virtually everyone born on U.S. soil is a citizen. She asserts that the Supreme Court's 1898 decision in *Wong Kim Ark* affirmed this universal rule, with exceptions only for those under a 'fiction of extraterritoriality' (e.g., diplomats, foreign invaders, tribal Indians). She claims the government's attempt to introduce a parental domicile requirement is a 'fatal concession' that contradicts *Wong Kim Ark*.

Wang highlights that *Wong Kim Ark* explicitly states domicile is irrelevant under common law and that the dissent understood the majority's broad interpretation. She also cites *Lynch v. Clark* (pre-14th Amendment) and the 1940 Act as confirming this universal understanding.

A significant point of contention is whether the exceptions to birthright citizenship are a 'closed set' or can be expanded. Wang argues they are a closed set, limited to the historical categories based on extraterritoriality, and cannot be expanded by analogy or by Congress. Sauer, however, suggests the principle of allegiance/domicile is broad enough to 'sweep in future situations' like illegal immigration, which was 'unknown' at the time of the 14th Amendment's adoption.

Wang states, 'The 14th Amendment's rule does provide for a universal rule with a set of closed exceptions. Wong Kim Ark says so at least twice.' Sauer, in response to Justice Alito's 'new problem' analogy, agrees that a broad principle was adopted that is 'broad enough to sweep in future situations.'

Host Michael Popok suggests that the conservative 'MAGA 6' justices could use 'judicial restraint' to avoid a constitutional ruling by deferring to the 1940 and 1952 statutes that codified birthright citizenship. However, he expresses skepticism, noting their history of 'legislating from the bench' and 'activist' rulings, implying a politically motivated outcome.

Popok states, 'The easiest exit ramp for the MAGA 6 on the Supreme Court is to use what's called judicial restraint... It's hard to use the term judicial restraint with this group because they are the most activist group legislating from the bench.'