Return to Transcripts main page

Inside Politics

Justices Hear Birthright Citizenship Case With Trump In Audience; Trump Order Faces Deep Skepticism Even From Conservative Justices; Supreme Court Hearing Case On Trump's Birthright Citizenship Order; Trump Spent Morning In Court, Listening To About 90 Minutes Of Arguments. Aired 12-12:30p ET

Aired April 01, 2026 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:00:00]

CECILLIA WANG, NATIONAL LEGAL DIRECTOR, ACLU (voiceover): And the third -- the third thing I would say is that, that it'd be contrary to the central purpose of the 14th amendment citizenship clause to admit new exceptions. For all those reasons, the entire history of the citizenship clause is driven by the notion that we don't want to have any other exception.

BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT (voiceover): Then, relatedly, just a separation of powers point, but get your answer. I understand your point about the executive order, but Congress's authority under Section Five of the 14th Amendment, I guess the answer you just gave means, they don't have any authority to look at this. Even if they passed it 435 to zero in the House, 100 to zero in the Senate, and said, we're carving out a new by analogy to the existing categories, a new exception. Your point is, no, they're closed. They're frozen forever

WANG (voiceover): Correct. And the way I would put it is that the citizenship clause of the 14th Amendment again has a universal rule with a closed set of exceptions, Cong, it sets a floor. So, the Congress has, under the naturalization clause, the power to expand citizenship to other people, not covered by the 14th Amendment. And obviously they have, in many ways, but they can't go below that floor that that the constitution sets.

KAVANAUGH (voiceover): I think Mr. Sauer acknowledged that -- and you mentioned this in your opening, that if we agree with you on how to read Wong Kim Ark, then you win. So that could be a -- if we did agree with you on Wong Kim Ark, that could be just a short opinion, right? That says, the better reading is respondents reading, government doesn't ask us to overrule affirmed.

WANG (voiceover): Yes.

KAVANAUGH (voiceover): Then last question, though, why would we address the constitutional issue? This is the last one. Why would you address the constitutional issue? Given your argument on the statutory our usual practice, as you're well aware, of course, is to resolve things on statutory grounds and not to do a constitutional ground? WANG (voiceover): Sure. You know, I think we obviously have these two paths to win here. We're happy to win on either or both of them. I do think it would be prudent for the court to reaffirm its decision in Wong Kim Ark, where it's a landmark decision about the definition of national citizenship in this country. I just think it would be prudent for the court to go ahead and reaffirm that. But of course, we're happy to take a win on any ground.

KAVANAUGH (voiceover): Thank you.

WANG (voiceover): Thank you.

UNIDENTIFIED MALE: Justice Jackson. I'm sorry, Justice Barrett?

AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE SUPREME COURT (voiceover): So, I have a question about the exceptions again. So in your interchange with Justice Kavanaugh, just now you were talking about it as a closed set of exceptions, and said, that way, it sounds like exceptions that people had in mind at the time of the ratification, but that were not explicit in the amendment. But I took your brief to be arguing that subject to the jurisdiction thereof is the language in the 14th Amendment that refers to those exceptions. Am I right?

WANG (voiceover): That's right.

BARRETT (voiceover): OK.

WANG (voiceover): It describes them.

BARRETT (voiceover): It describes them. And would you say this goes back to a question that Justice Gorsuch asked general Sauer, our relationship to the Indian tribes is different today than it was at the time that the 14th Amendment was ratified. Let's put aside section 1401. Is any tribal Indian born on a reservation today, on tribal land, a natural born citizen under the 14th Amendment?

WANG (voiceover): Under the 14th Amendment, no. Of course, Congress has provided for citizenship for all tribal members in the --

BARRETT (voiceover): The by statute -- by statute. And so is that, because what's subject to the jurisdiction of, ma'am, when you say closed set of exceptions, it means that the jurisdiction as it existed in at the time of the 14th Amendment is still the jurisdiction today. So, let me just be a little bit clear.

WANG (voiceover): Sure

BARRETT (voiceover): You know, Justice Kavanaugh asked you if we could create new categories by analogy, so there may be other sorts of people who are present here, to whom this subject to the jurisdiction in the same way that we were talking about, you know, the bubbles around ambassadors, or the soil of occupied territory or the soil of tribal land.

Perhaps those new carve outs could exist by analogy today, like if the United States carved out some portion of some state and suspended it from its jurisdiction. Wouldn't the principle still apply?

WANG (voiceover): No Justice Barrett, for two reasons. The first is, again, that there is a closed set.

BARRETT (voiceover): But why is it closed? The language doesn't say it's closed.

WANG (voiceover): Sure. It's close -- we know it's closed because Congress is the very purpose of the citizenship clause was to foreclose new exceptions. That's clear from the debates. And I would say that the language describes a closed set as well, because it's -- you can't imagine another situation. The government is trying to make us imagine another situation, right? They say, look, what if Congress in order to do an end run, in order to change the meaning of the 14th Amendment as to unauthorized immigrants' children. Congress can say we are not going to exercise jurisdiction.

[12:05:00]

BARRETT (voiceover): Well, not quite, because it's redefining jurisdiction, it's not quite analogous, right, because the government's domicile theory is a little bit different than the use solely theory, right?

WANG (voiceover): Sure, that's right. I'm just saying that in the second step of their argument as to undocumented immigrants, where they have to get around the fact that undocumented immigrants, by and large, are domiciled in the United States. They're trying to say, look, we're going to -- we're going to manipulate the law, either to define domicile or to carve out to say, just wave a magic wand and say, these babies are not subject to the jurisdiction of the United States. There's still a missing factor under that original meaning of this -- of the 14th Amendment and that's that.

There is another sovereign who can exercise jurisdiction over this person, even though they're in the United States. And this gets me back to a question you asked Justice Alito, the difference between an ordinary non ambassador, foreign national, and everyone who's subject to one of those jurisdictions is that even if, if you take the government's argument and say, a foreign national is subject to the -- that their country of nationalities, jurisdiction in the United States is actually not true.

If I'm a French national in the United States. France cannot come into the United States, arrest me and try me for a crime under French law. And that's what sets ordinary foreign nationals apart from ambassadors --

BARRETT (voiceover): I mean, I understand that wasn't quite the hypothetical. I understand that. Let me just ask you -- no, that's OK. Let me just ask you one last question about Indians. So, I gather what you're saying is that Congress cannot expand the set of, we'll call them exceptions, right? But you're saying it can't contract them either. And that was the Indian example.

So, what if, again, putting aside section 1401. What if our relationship with tribal Indians has changed so much that we would say no, Indians really are fully subject to the jurisdiction of the United States in the way any other, you know, natural born citizen is. You're saying that that doesn't change the constitutional status of Indian citizenship.

WANG (voiceover): Let me be clear. What I'm saying is that the meaning of the 14th Amendment is the -- we have to go with the original public meaning, and obviously, at the very time that the framers were, you know, thinking about the 14th Amendment, at the time of ratification, that relationship between the United States and tribal nations was in flux, right?

The government has made various arguments about Congress's authority, but the way the framers thought about it, and the way that Wong Kim Ark describes it, is that there was a unique constitutional status unlike any other relationship between sovereigns and all the world, between the United States and the Indian tribes. And that is what gave rise to the pre-existing exclusion of Indian tribe tribal members from U.S. citizenship, and that's what the 14th Amendment captures.

UNIDENTIFIED MALE: Justice Jackson?

KETANJI BROWN JACKSON, ASSOCIATE JUSTICE OF THE SUPREME COURT (voiceover): So, I want to understand how you are responding to the government's argument that because temporary visitors and undocumented immigrants are still governed by their home countries. And in the government's take on this, you can't have two -- you can have allegiance to two different sovereigns. Those groups can't have the requisite allegiance to be subject to the United States for the purpose of the 14th Amendment.

That's what I hear the government saying, but I do think that that seems to rest on a different understanding of allegiance than what was in the English common law, and that when we understand what the English common law thought about allegiance, you can see that you can have allegiance to two different sovereigns at the same time. This kind of goes back to Justice Alito's questions.

I mean, I was thinking about this, and I think they -- there are various sources that say this, that you can have -- you obviously have permanent allegiance based on being born in whatever country you're from. That's what everybody recognizes. But you also have local allegiance when you are on the soil of this other sovereign.

And I was thinking, you know, I'm -- I, U.S. citizen and visiting Japan. And what it means is that, you know, if I steal someone's wallet in Japan, the Japanese authorities can arrest me and prosecute me. It's allegiance, meaning, can they control you as a matter of law. I can also rely on them if my wallet is stolen to, you know, under Japanese law, go and prosecute the person who has stolen it.

[12:10:00]

So, there's this relationship based on -- even though I'm a temporary traveler, I'm just on vacation in Japan. I'm still locally owing allegiance in that sense. Is that the right way to think about it? And if so, doesn't that explain why both temporary residents and undocumented people would have that kind of "allegiance" just by virtue of being in the United States.

WANG (voiceover): That's absolutely right, Justice Jackson, and that comports with the plain text of the 14th Amendment. As it applies to everyone, born in the United States, other than those subject to the -- to the exceptions that were baked in a closed set. You owe natural allegiance as a U.S. born citizen. If you want to look at the parents of those people, and let's say the parents are foreign nationals, but not ambassadors, the parents owe temporary allegiance.

JACKSON (voiceover): Right. So, the babies get the permanent allegiance piece of this, and the parents get the local allegiance piece of this. So, to the extent we're looking for allegiance, we have it.

WANG (voiceover): That's right.

JACKSON (voiceover): Thank you.

UNIDENTIFIED MALE: Thank you, Counsel. Rebuttal, General Sauer.

D. JOHN SAUER, U.S. SOLICITOR GENERAL (VOICEOVER): Thank you, Mr. Chief Justice. Justice Kavanaugh, turning to Lynch against Clarke that you raised it and come up when I was talking about. Keep in mind that we say that's question at the time. It's questioned by a higher court in the same state, the state of New York, and the Ludlam (Ph) decision in 1860. Specifically said that someone who's traveling or sojourning abroad, though born in a foreign country, is not born in foreign allegiance.

So, obviously there is tension within that very state, and that's what contemporary commentators noted. And I make a more fundamental point about that, Lynch is not interpreting the 14th Amendment because it predates it. So, it's not looking at the language of the 14th Amendment. It's looking at, you know, what does the word citizen mean, for example, in the clause. So, there's an anachronism to their reliance on it.

And I think that turns to a point that Justice Alito emphasizes, once you get to that language of the 1866 Civil Rights Act, where Congress said, not subject to any foreign power. Clearly, we are no longer dealing with the British conception of allegiance because Calvin's case and Blackstone say whether you're subject to another foreign power is irrelevant to whether or not you become a citizen.

So again, the concession that I heard to be made that those two mean the same thing, which this court held in general building contractors that the Civil Rights Act has the same scope as the censorship clause of the 14th Amendment. Once you're saying not show it to any foreign power, Congress has clearly departed from the common law, the British conception of allegiance, that monarchial conception of allegiance. They have adopted the Republican conception of allegiance. And there's all kinds of evidence going back to late 1700s, so that's the way they thought about it. And there was a reference, I think, in my friend's presentation about the Marshall Woodworth treaties from the late 1890s. That treat is also just like Lynch against Clarke. The language they quote is actually describing the case or the law, the status of the law before the adoption of the 14th Amendment. So if -- but if you actually look at the treatises we cite again, I mean, you know Wharton Morris, Justice Samuel Miller, of this court, Lesser Black Hall (Ph), Winchester Taylor, Westlake Bolt.

There's this consensus going from the time of the 14th Amendment onward, they're looking at the specific question of temporary -- temporarily present individuals in the jurisdiction. All those sources say their children are not citizens, and that goes both before and after Wong Kim Ark. You see a similar consensus action the congressional debates, where -- whenever it comes up temporary sojourners, it's understood the context indicates. It's clearly understood that those children are not citizens.

And I would be therefore finished where I began with drawing a stark contrast. And turn back to the first question that Justice Thomas acted. That Republican Congress in 1866 had a very, very clear understanding that the children of the newly freed slaves have the requisite allegiance to the United States. This was all about overruling the grave injustice of Dred Scott and making sure that that allegiance was granted to the children of slaves.

However, you have this contrast of a very, very strong, impressive consensus, both in the original understanding in the -- in the congressional debates, and carrying over into commentators for 50 years afterwards, that the children of temporary sojourners are not covered, and for those reasons, we ask the court to reverse.

UNIDENTIFIED MALE: Thank you, counsel, general. The case is submitted.

MANU RAJU, CNN ANCHOR, INSIDE POLITICS: Welcome to Inside Politics. I'm Manu Raju in for Dana Bash. And we're following breaking news out of the Supreme Court. You've been listening to the arguments in the challenge the Trump administration's attempt to end birthright citizenship as it's been understood in this country for more than a century.

[12:15:00]

In an apparent historic first, President Trump was there for the first half of the morning. He left after about 90 minutes of oral arguments. This is clearly an uphill battle for the president, even conservative justices expressed deep skepticism about his case. The most troubling sign for the president came from Chief Justice John Roberts. This exchange with Solicitor General John Sauer may signal where this case is headed.

(BEGIN VIDEO CLIP)

SAUER (voiceover): Media reported as early as 2015 that based on Chinese media reports, there are 500, 500 birth tourism companies in the People's Republic of China whose -- what business is to bring people here to give birth and return to that nation.

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES (voiceover): Having said all that, you do agree that that has no impact on the legal analysis before us.

SAUER (voiceover): Of course, we're in a new world now, as Justice Alito pointed out to where eight billion people are one plane ride away from having a child is a U.S. citizen.

ROBERTS (voiceover): Well, it's a new world. It's the same constitution.

(END VIDEO CLIP)

RAJU: I want to go to CNN's Chief Legal Affairs Correspondent, Paula Reid, who's been outside the Supreme Court, listening to all of this. So, Paula, how big of a deal were those comments from the chief justice?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Yeah. That was not a great sign for the Trump administration. They really need the chief justice on their side, and it's pretty clear from that comment that he is not on their side. What's also clear is that President Trump's presence during today's arguments did not make the justices more sympathetic to his arguments.

It was clear over the past few hours that the justices, the majority of them, are deeply skeptical about his executive order limiting birth right citizenship. Even the three conservative justices he appointed do not appear to be willing to side with his administration's interpretation of the 14th Amendment. Now the one I was really watching was, of course, Trump nominee Justice Kavanaugh, who has, over the past few years, been in and out of favor with the president. Right now, though he is in favor because of the tariff's decision. He was really quiet today, Manu.

But the one question he asked was really important, and telling, he pressed John Sauer, the Solicitor General, arguing for Trump on the fact that he's not only asking the court to overturn a century of the court's interpretation, but also at least two laws that Congress has passed that really support the idea that if you're born here, you're a citizen. Let's take a listen to what Kavanaugh said.

(BEGIN VIDEO CLIP)

KAVANAUGH (voiceover): Congress repeats that same language knowing what the interpretation had been.

(END VIDEO CLIP)

REID: It was difficult for Sauer to really square that. Now, after the Trump administration's argument, the president did leave the court. The other side, the ACLU, look, they just had an easier time of it. Before the justices, the questions were a little bit softer. She was given more time to answer. And the time, even though conservative justices appear to be asking questions, sort of help them figure out how to write their opinion and not so much how they should rule.

Now we won't know their decision unlikely until June. We know President Trump, of course, has made this, not just a conservative majority, Manu, but a conservative super majority. He has enjoyed many major legal victories before this court. But based on what we heard today, it appears unlikely that they are going to hand him another victory on this executive order on birthright citizenship.

RAJU: All right. Paula Reid, from outside of the Supreme Court, thank you. And here in the room are an excellent group of reporters and our top-flight legal analyst, Elliot Williams, who also has been dissecting these arguments. Was it is -- did it really go this bad when you listen to what they argued here. The questions that came out of the justices, was it as bad as it seemed for the administration, from what you heard here? Because sometimes Supreme Court justices will ask questions to make a counterpoint. Was that the case at all here?

ELLIOT WILLIAMS, CNN LEGAL ANALYST: Oh, it was bad, Manu. And let's be clear -- and Paula had touched on a very important point here. Even the mildly skeptical questions you started getting toward the end of the day from Justice Amy Coney Barrett, Justice Kavanaugh. Really, I think -- and this was Paula's point, or about how they're going to write their opinions, whether they concur with the decision, write something else or join the majority.

This was a blowout of the sort that we don't really see that often. You could see an eight to one decision here. Even it's not out of the question. Certainly, there are five votes that are quite skeptical of the president and probably more. This was just not good. The -- a number of the arguments, the basic arguments they had about how we define jurisdiction in the United States? How you define.

They just -- this is sort of dismissed outright by quite conservative justices. So, it's just really hard to see how even justices that might have been perhaps somewhat favorable toward the administration's position do anything other than rule against them.

RAJU: A one, if it is a one, who's the one? Thomas or Alito?

WILLIAMS: Thomas.

RAJU: So, Thomas.

WILLIAMS: Again, that I said maybe, but you know, I think, you know, I don't want to prognosticate what happens on the Supreme Court. You could see an eight-one decision here, but it's probably more like a six-three decision.

[12:20:00]

RAJU: All right. We'll see if that happens. Well, just to get a little bit deeper into the arguments here, this was another revealing moment. Justice Neil Gorsuch, of course, who was nominated by President Trump back in his first term confirmed by the United States Senate. I had this question about Native Americans and whether the birthright citizenship should apply to them. And he -- this signals some skepticism from his part as well to the administration's argument.

(BEGIN VIDEO CLIP)

NEIL GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT (VOICEOVER): Do you think Native Americans today are birthright citizens under your test and under your friends' test?

SAUER (voiceover): I think so. I mean, obviously they've been granted citizenship. By statute --

GORSUCH (voiceover): Besides the statute, you think they're birthright citizens?

SAUER (voiceover): No. I think, the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens.

GORSUCH (voiceover): 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 a supply today, right?

SAUER (voiceover): Yes, yes. So, a tribal Indian, for example, gives up allegiance to --

GORSUCH (voiceover): Are tribals -- born today, birthright citizens.

SAUER (voiceover): I think so, on our test. They're lawfully domiciled here. I'm not sure. I have to think that through.

(END VIDEO CLIP)

RAJU: That was bad. That is --

WILLIAMS: Because it's at the heart of their question, that subject to the jurisdiction of the United States hinges on, ultimately, the children of diplomats and some Native Americans, not being prepared for that answer. Is literally like going into a court where Winnie the Pooh was the judge and not being prepared for an answer about -- a question about honey. It's just so obvious. And number one --

RAJU: It's felt pretty shocking when we expect that.

WILLIAMS: No, it's pretty shocking. He probably couldn't give the answer because he knew he'd be giving away the farm if he did say that and had to hedge a little bit. But that is indicative of how bad today was for the government. They simply even on the arguments that were core to their argument. This question of who was a citizen and subject to the jurisdiction. They just lost -- almost all of them, and it's really just a function of writing opinions around the margins and seeing just how the wording is going to be, not who's going to win.

RAJU: Yeah. And Alayna, you covered the White House for us here. Talk about the president's decision to actually go and sit in the audience here. It seemed like he listened to his side, left when the ACLU attorney started to make her case. But what are your sources telling you about why he did this? This, of course, we don't have any record of a president doing this before, sitting and listening to oral arguments at the Supreme Court.

ALAYNA TREENE, CNN WHITE HOUSE CORRESPONDENT: Yes, it's the first time in history. Look, I think, Paula kind of touched on it. But part of it, I think, was, you know, the president expects loyalty, even though the Supreme Court is, of course, independent of the executive branch. He does in many ways, and he said this publicly, expect loyalty from the conservative justices that he has appointed to the bench.

And I think his presence there, in part, was to kind of remind them, like I put you there. Now, did that work? No, obviously, we saw how this played out. But that was a key part of this. I think what's interesting too is obviously, with how today was going. I don't know if they have a backup plan for what to do if this fails. And of course, I'd remind our viewers --

RAJU: You don't think they expected this to go as bad as they did?

TREENE: I think they did, but I don't know if they have. I mean, you know, maybe Steven, I know Stephen Miller has a bunch of things on this. They've been working on this. I should remind people since the first administration, the president's first term.

RAJU: Even before many of them. Go, Stephen Miller for doing this --

TREENE: Yeah. But Trump love really zoned in on this idea during his first term. Didn't really get to do it. Took advantage of it this time because he has far more, you know, yes, men really around him, but there is a question of, they wanted this fight to go to the Supreme Court. And I know that the president personally believed that he would have, hopefully, an easier time of it than he did today, but I don't know where they go from here. I don't think they're going to give up, but it's very much unclear if they have a real, specific plan B.

DAVID CHALIAN, POLITICAL DIRECTOR & WASHINGTON BUREAU CHIEF: I think, the wanting the fight is why he also went to the court. So, not only just to stare the justices in the face. I think he understands the reality of applying political pressure to Republicans on the Hill who have to face voters that he has sway with is different than applying pressure to lifetime appointees. But I think this notion of this is one of the core promises to his base of support, a part of his political identity.

I mean, I remember before Trump was on the scene, like when, when Mike Huckabee was all the rage of the populous right, running for president in 2008. Birthright citizenship was what he was talking to Iowa Republicans about at the time. This has been an issue that has been of concern to a slice of the party, and the slice that has provided the most fuel to Trump's political rise, and so through -- like you said, working on it through the first term and not getting there. So, Trump going to the court today, I think, is sort of the biggest sort of expression to his base that he still cares about this, even though he understands the odds of winning or not --

WILLIAMS: And John Roberts asking that question about birth tourism. It was a very telling moment here, because -- and I think you can look for this in some opinion that's written, either from him or Gorsuch, to say, look, perhaps birth tourism is a problem. If it is, it's not a constitutional one, it's a diplomatic one. And if you think you have a problem with China, get Congress to deal with it, or go -- call up Xi Jinping and work it out.

[12:25:00]

Now, that's not a very satisfying solution, certainly the president's base, and certainly to the president himself. But that's not an argument for meddling with the 14th Amendment, which really has unambiguously clear language.

TIA MITCHELL, WASHINGTON BUREAU CHIEF, ATLANTA JOURNAL-CONSTITUTION.: Yeah. I just think, first of all, it was just interesting listening to the oral arguments to hear how badly it was from the conservative justices with Donald Trump in the audience, watching them basically eat the Solicitor General alive, you know, in front of everyone. But I do think it goes back to, you know, the conversation about illegal immigration and birthright citizenship is a conversation that could be had. But you can't just throw out the Constitution if you want to change the laws.

If you want to address birth tourism or anything you find problematic or that's maybe gotten out of hand that wasn't contemplated by our Founding Fathers, you got to either change the constitution or get Congress to create some laws to address your problem. But you can't just write an executive order to make it go away, and I think that's really what the Supreme Court was trying to say. It's not that maybe some of the issues raised aren't issues, but you can't throw out the Constitution.

RAJU: And Trump, apparently, just posted on Truth Social just moments ago. We're waiting for it to come up here. Here it is. We are the only country in the world stupid enough to allow birthright citizenship, President Donald J. Trump. Well, that is actually not true. We actually heavily have a map here by the countries that allow unrestricted birthright citizenship, about 30 nations we have here, highlighted that includes Mexico, Canada, United States, Brazil, Argentina.

So, you can see where his mind is at the moment, perhaps he also heard those arguments and didn't think they went particularly well for his side. We shall see, they still have to rule and that will happen probably sometime early this summer.

All right, coming up. President Trump's approval sinks to a new low in his second term. Plus, more from our latest CNN poll. Also, President Trump's high stakes message war with Iran ahead of a major protest -- prime time speech tonight before the nation about the war.

(COMMERCIAL BREAK)