WASHINGTON — Supreme Court Justices from across the ideological spectrum pummeled a lawyer for the Trump administration with biting questions during oral arguments Wednesday over the president’s executive order on birthright citizenship.
While it wasn’t fully clear which way the high court will go in the landmark case, Republican-appointed justices made clear they were far from a lock for the administration — all while President Trump was in the room as the first sitting president in US history to observe oral arguments in person.
“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,” Chief Justice John Roberts asked US Solicitor General John Sauer early on.
Existing birthright citizenship policy largely stems from the 14th Amendment, which stipulates that “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.”
Trump’s executive order, signed on Jan. 20, 2025, his first day back in the White House, attempts to eliminate birthright citizenship for children of illegal immigrants and temporary visitors to the US. That order has been blocked by the lower courts, which universally ruled against him on the matter.
Before the Supreme Court, a question was raised on Wednesday about whether Trump can do that based on the 14th Amendment and statutory law, namely the Nationality Act of 1940. GOP-appointed Justice Brett Kavanaugh repeatedly questioned why the high court should even get to the constitutional question when there’s a statute involved.
“Our usual practice, as you’re well aware, of course, is to resolve things on statutory grounds and not to do a constitutional ground,” Kavanaugh noted at one point.
Trump, who was joined by Attorney General Pam Bondi during his historic appearance, left the Supreme Court partway through oral arguments. However, it wasn’t fully clear whether that was because of frustrations with how arguments were going or his busy schedule.
All three of the Democrat-appointed justices sounded skeptical of the Trump administration’s arguments in defense of the executive order. The six Republican-appointed justices were very mixed, with Justices Samuel Alito and Clarence Thomas appearing sympathetic to the administration and the others asking tough questions of both sides.
Roberts, seen as a crucial swing vote, is often one of the more reserved justices, who typically asks just a few questions, though it varies from case to case. So his tough questions of Sauer were notable, though the chief justice did grill American Civil Liberties Union attorney Cecilia Wang aggressively as well.
Sauer had zeroed in on that language in his briefs to argue that illegal immigrants aren’t subject to the jurisdiction of the US, therefore their children aren’t guaranteed birthright citizenship. The solicitor general also pointed to exceptions in the existing birthright citizenship policy, such as foreign invaders, in his briefs. But Roberts seemed uneasy with that.
“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 who are here in the country,” Roberts went on. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”
Later, Roberts asked Sauer about how common so-called birth tourism is in the US, seizing on a key aspect of the Trump administration’s justification for the executive order.
“We’re in a new world now,” Sauer said, suggesting the framers of the 14th Amendment didn’t have to deal with that at the time.
“It’s a new world. It’s the same Constitution,” Roberts shot back.
Looming over the Supreme Court’s decision is precedent from the 19th century, namely the Supreme Court’s 1898 decision in US v. Wong Kim Ark, in which the high court held that a man born to Chinese immigrants was guaranteed automatic citizenship. As the Trump administration pointed out, that case involved legal, domiciled immigrants, rather than illegal aliens.
Fellow Republican-appointed Justice Neil Gorsuch, who like Roberts, bucked Trump in the tariff case, underscored that the US now has “laws against immigration that are much more restrictive than they were in 1880,” when the Supreme Court last decided major cases on birthright citizenship.
“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?” he asked Sauer.
“I’m not sure how much you want to rely on Wong Kim Ark,” he then chided after Sauer began to cite that precedent.
Another key precedent at play is the Supreme Court’s ruling in the 1884 case Elk v. Wilkins, which held that the children of Native Americans aren’t guaranteed birthright citizenship, something Congress later changed in statutory law. Gorsuch needled at one point Wang that “There’s a lot in Elk, and some of it’s not terribly helpful for you.”
Republican-appointed Justice Amy Coney Barrett expressed concerns that doing away with the traditional understanding of birthright citizenship could be “messy in some applications.” She also dinged Sauer for not being “textual” at one point.
Wednesday’ oral arguments come a little over a month after the Supreme Court took a sledgehammer to Trump’s tariff agenda, which drew the president’s wrath.
“Our incompetent supreme court did a great job for the wrong people, and for that they should be ashamed of themselves (but not the Great Three!),” Trump seethed on Truth Social not long after the tariff decision, referring to the three justices who sided with him in that case.
“The next thing you know they will rule in favor of China and others, who are making an absolute fortune on Birthright Citizenship.”
Trump has long been opposed to the existing birthright citizenship policy, arguing it’s a magnet for illegal immigrants to slip into the country so that their children can become citizens. The president has also highlighted how few countries that have birthright citizenship policies go that far with it.
The Supreme Court previously handed Trump a significant win in an offshoot of the birthright citizenship case last year revolving around the use of universal injunctions to block his executive order.
A decision in Trump, President of the US v. Barbara is expected by the end of June. It is perhaps the most high-profile case left on the Supreme Court’s docket this term.
