Supreme Court Hears Birthright Citizenship

Today is a big day in Washington, D.C., in front of the Supreme Court. They are going to hear the birthright citizenship case. The U.S. Supreme Court is going to hear arguments about whether people born in this country to parents who are not citizens automatically have the right to be United States citizens. This goes back to shortly after Trump became president for the second time. He signed an executive order requiring that in order to be a U.S. citizen, at least one of your parents has to be a citizen of this country or a legal permanent resident. That stands in direct contrast with previous interpretations related to the 14th Amendment by federal courts, including the U.S. Supreme Court. But obviously the makeup of the court is much different now than the last time this issue was addressed. Trump said he knew this would get challenged and struck down in lower courts. The goal was to get it to the Supreme Court so they could determine whether simply being born in this country to non-citizens grants citizenship. What’s very interesting about this is that Trump has said he’s going to hear the arguments in person. The president of the United States is going to head over to the Supreme Court and sit in for the oral arguments. According to the information I’m working from here—Andrew Rice, who writes for a media company called Center Square, along with reporting from NBC News—both the court and the nonprofit Supreme Court Historical Society said back in October there is no official record of any sitting president ever attending oral arguments in person before the High Court. So in the roughly 250-year history of our country—especially as we approach the 250th birthday of America—there has never been a president sitting in the courtroom for Supreme Court oral arguments. That’s remarkable. If Trump attends, we’ll be making history with a president present for those arguments. Let’s talk a little about birthright citizenship. Most of what we do on this program is Indiana-based. It’s Indiana news, Indiana politics, and Indiana government. That’s our focus. But we do talk about national issues when they affect us here at home. Determining whether people born to parents who are in this country illegally become citizens certainly affects Indiana. Those individuals could then legally live in the state. So this is worth examining. This is a very important ruling the Supreme Court is going to make. It’s also fascinating because when a case goes before the court, sometimes you can get an idea from oral arguments about where the justices are leaning. Now that audio of the arguments is available, it’s easier to follow. In the past it was mainly court reporters and sketch artists. Today you can actually hear the exchanges. Often you can gauge where the justices may land based on the questions they ask. But not always. Take the overturning of Roe v. Wade. That case began as a Mississippi abortion law case and ultimately led to Roe being overturned. A lot of people didn’t see that outcome coming. So you never fully know. Still, sometimes you can get a sense of the lean. Entering these arguments, I honestly don’t have a clear idea where this court is going to go. Andrew Rice at Center Square had a pretty fair breakdown of the issue. This case goes back to the 14th Amendment. For those who may not know, the 14th Amendment was intended to ensure that formerly enslaved people, their children, and future generations would have citizenship and rights after the Civil War. That was the core purpose. The relevant language in the amendment 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. The key phrase is “subject to the jurisdiction thereof.” This brings up the idea of original intent. What did the people who wrote the amendment intend? What did the states that ratified it believe they were approving? That question matters a lot to more traditional justices when they interpret statutes or constitutional provisions. They ask: what was the original intent when this was written? Many argue that the people writing the amendment were not thinking about illegal immigration when they drafted it. They were addressing the status of formerly enslaved people and their descendants. The question is whether the language should apply to people who entered the country illegally and whose children are born here. The modern legal framework for birthright citizenship largely traces back to an 1898 Supreme Court case, United States v. Wong Kim Ark. In that case, the Court ruled that a child born in the United States to Chinese parents could be considered a U.S. citizen under the 14th Amendment. That ruling became the precedent the Court has largely followed since then. In that opinion, the justices outlined certain categories of individuals who would not automatically receive citizenship despite being born in the United States. Those included children of diplomats, children born to invading armies, and children born to American Indians, who at the time were treated differently under federal law. Eric Wesson, the solicitor general for the Iowa Attorney General’s office, offered a legal interpretation that raises another point. In the 1860s, 1870s, 1880s, and even the 1890s, the people interpreting this amendment were not envisioning tens of millions of people entering the country illegally. That situation simply didn’t exist at the time. So when they discussed automatic citizenship, they were not picturing modern-scale illegal immigration. The 14th Amendment clearly emerged from the effort to protect formerly enslaved people and their descendants after the Civil War. That was the central goal. Wesson put it this way: it seems unlikely the 14th Amendment was intended to serve as a magnet for birth tourism or to reward illegal re-entry. Critics argue that the interpretation of the amendment as guaranteeing citizenship in these circumstances has, over time, acted as an incentive for people to enter the country illegally. If their children are born here, those children can remain citizens and potentially create a pathway for the parents to remain as well. Others disagree and argue the amendment’s language is clear. Looking at the current Supreme Court, the likely breakdown appears fairly predictable in some respects. Many observers believe Justices Alito, Thomas, and Gorsuch may side with Trump’s argument. The three liberal justices—Ketanji Brown Jackson, Sotomayor, and Kagan—are widely expected to take the opposite view.