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Supreme Court Debates Birthright Citizenship; Now, Trump Inside Supreme Court for Birthright Citizenship Arguments. Aired 10-10:30a ET

Aired April 01, 2026 - 10:00   ET

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

WOLF BLITZER, CNN ANCHOR: Welcome to our viewers here in the United States and around the world. I'm Wolf Blitzer with Pamela Brown and you're in The Situation Room.

And we begin with the breaking news, huge news. In just moments, the U.S. Supreme Court justices will hear arguments on birthright citizenship.

This is video of President Trump's traveling to the U.S. Supreme Court to attend the arguments today. It's an apparent first for a sitting U.S. president.

And these are live images of protesters gathering outside the court here in Washington. The hearing is about to get underway in the stakes truly are huge. The case will decide President Trump's efforts to end the constitutional right for citizenship here in the United States for almost anyone born on U.S. soil.

PAMELA BROWN, CNN ANCHOR: On the first day of a second term, the president signed an executive order denying birthright citizenship to children born in the U.S. to immigrants who are here either temporarily or illegally.

Now, lower courts have ruled against the president, saying the automatic citizenship is protected by the 14th Amendment. That's been the understanding for more than a century in America.

We're covering all of the angles of this very important story. Our correspondents and analysts will follow every twist and turn of the arguments and break them down for you.

[10:00:02]

Let's begin with CNN Chief Legal Affairs Correspondent Paul Reid. Paula, you are right outside the Supreme Court. Courts around the country, as I noted, have blocked President Trump's executive order, meaning it has never been enforced. How much of an uphill battle does the administration face today in the arguments?

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Look, this is going to be argued by the solicitor general, John Sauer. He has previously scored some unexpected victories for President Trump and the administration, but sources inside the Justice Department, legal experts, they all agree this is going to be a real challenge. Now, a Justice Department official tells me they are going to focus their argument on the 14th Amendment. Of course, this was enacted after the Civil War, and says that if you were born here in the U.S. and subject to the jurisdiction thereof, you are a citizen. But the government's going to focus on those words subject to the jurisdiction thereof. They're going to argue that if you are here illegally, if you are on many kinds of temporary visas, or if you're a tourist, that you're not subject to the jurisdiction of the United States. You don't have the right domicile, you don't have the right allegiance to qualify for citizenship. But that is also arguing to the court that it has been wrong about interpreting this amendment for over a century.

And on the other side, they're going to argue that even if the government wins here, that this would actually apply to millions of people and far more people would be impacted than the government is letting on. And, again, they're going to point to the fact that this is how this has been interpreted for over a hundred years. Congress has passed at least two laws that reflect the opposition's stance on this particular question.

Now, another thing I'm looking for are questions about logistics. So, even if they say that this executive order is legal or parts of it are legal, is it feasible? This is something that Justice Kavanaugh was really interested in and is will the government on. I'm looking to see if they get asked more questions about that.

Of course, I won't say elephant, but Republican president in the room, it makes this incredibly historic, but I really don't think his presence is going to distract the justices from their historic task here, which is to work on really understanding what exactly was meant in the 14th Amendment, and who is and is not a citizen here. But President Trump being here, the motorcade the roadblock being blocked off, the helicopter above certainly adds to what is always a circus- like atmosphere down here at the high court on big days.

BROWN: Yes. Quite the atmosphere already there outside the high court, and we just saw the demonstrators there and the president being there will certainly add some more drama to this high-stakes day at the high court.

BLITZER: And we see the president's motorcade now coming up to the Supreme Court.

Let's go to our Senior White House Correspondent Kristen Holmes. Kristen, what went into this decision by President Trump to break with tradition and actually attend in person this morning's oral arguments?

KRISTEN HOLMES, CNN SENIOR WHITE HOUSE CORRESPONDENT: Yes, Wolf. I mean, this is something he has long used about, but never actually followed through on, and it certainly raises the stakes. It also inserts politics into all of this in a way that the court really tries to stay away from.

I mean, his visit to the Supreme Court to hear these oral arguments comes as he has been ranting about the Supreme Court, particularly those justices that he appointed after that tariff decision. I do want to read you one thing he posted before going to the court he posted this last night. He said, the world is getting rich selling citizenships to our country, while at the same time laughing at how stupid our U.S. court system has become tariffs. He wrote, adding dumb judges and justices will not a great country make.

Now, as Paula said, likely they won't be distracted. They have a job to do. But it certainly does weigh a little bit differently on what their reactions are. At least we'll be watching it closer to see how they interpret certain things, because, again, you are entering a whole new political sphere here by having the president there and a president who really believes that the Supreme Court, at least the Republican justices and the ones that he appointed, should rule in his favor on every case.

BROWN: That's absolutely right. We have seen that before and we'll be watching today as he arrives there at the high court breaking with precedent, as you noted, Kristen Holmes.

I want to go now to CNN Senior Legal Analyst Elie Honig. Elie, we just learned that Attorney General, Pam Bondi is also attending these arguments today. Tell us more about the legal framework here that sets up this showdown and just how significant that is.

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, Pam, the key thing that I'm going to be watching during today's argument is the five words that are going to decide this case, subject to the jurisdiction thereof. If we go back to the 14th Amendment, it tells us that a person is a citizen, if, two things, one, they're born here, there's no real dispute about that, and then, two, if they're subject to the jurisdiction of the United States.

The Trump administration has taken the position that that phrase, subject to the jurisdiction of the United States, is to be interpreted very narrowly and would exclude millions of people who are here illegally, or even people who are here legally, but on temporary status, for example, people who have lawful visas.

[10:05:00]

Now, the challengers say, no. If you are physically here with very narrow exceptions, you are subject to the jurisdiction of the United States, and therefore you get the benefit of citizenship under the 14th Amendment.

The stakes here are enormous. We are talking about 157 years of legal precedent going back to the ratification of the 14th Amendment in 1868. We are talking about 157 years of U.S. history and common practice. And so if Donald Trump wins today, and I think it's a long shot, it's going to change the fundamental value of what it means to be a citizen.

But important to note, Pam, Donald Trump's argument has been rejected by every lower federal court to hear it. Four different U.S. federal district courts have rejected Trump's interpretation. Three different circuit courts of appeals have rejected it. So, I'll be listening to the justices today to see if they see it any differently. I think the odds are they will join their colleagues on the lower courts and reject this, but we shall see.

BROWN: We shall see.

BLITZER: I want to go back to Paula Reid. You're getting some new reporting now, Paula, I understand on potentially some national security issues that could come up to play for this.

REID: Yes. I mentioned to the producers that I wanted to talk about the fact that they're also going to argue, it's not necessarily new, but I want people to understand there's a national security argument that the administration really wants to drive home here about birth --

BROWN: Paula, I'm going to interrupt you because they were starting right now. We're going to listen in.

D. JOHN SAUER, SOLICITOR GENERAL: -- citizenship clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance.

This conclusion reflects the original public meaning of the clause when Congress used the term not subject to any foreign power in the Civil Rights Act of 1866. It rejected the British conception of allegiance. Senator Trumbull explained that subject to the jurisdiction thereof, and the clause means not owing allegiance to anybody else. And in 1884, this court recognized that subject to the jurisdiction means owing direct and immediate allegiance.

The clause thus does not extend citizenship to the children of temporary visa holders are illegal aliens. Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status that creates the requisite allegiance and the text of the clause presupposes domicile. For decades following the clause's adoption, commentators recognize that the children of temporary visitors are not citizens and illegal aliens lack the legal capacity to establish domicile here.

Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules.

It has spawned a sprawling industry of birth tourism has uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States.

I welcome the court's questions.

JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: General Sauer, before we get into the broader national issues, would you start with Dred Scott? Dred Scott was a case about state citizenship. It was a diversity case. And, of course, we know what Chief Justice Taney did with that. How does the citizenship clause respond specifically to Dred Scott in answers or changes or corrects its answer as to citizenship?

The other point is the citizenship clause refers not just to national citizenship but also to state citizenship. Are we to have two different definitions for those? It's one word, citizens of the United States and citizens of the state wherein they reside.

So, as you begin, I'd like you to go back at the beginning and be more specific about the answer, and I want you to explain whether or not those two definitions are the same or related, and what state citizenship is based on.

SAUER: Thank you Justice Thomas. I'll maybe start by addressing Dred Scott. You know, as you alluded to the fact, Dred Scott, you know, imposed one of the worst injustices in the history of this court, and it led to the outbreak of the Civil War. It's very clear in this court, in all of its early cases interpreting the 14th Amendment said, you know, the one pervading purpose, the main object of the citizenship clause is to overrule Dred Scott and establish the citizenship of the freed slaves.

[10:10:12]

If you look at the debates in the Congressional record and discussion surrounding the adoption of the citizenship clause, what you see is a very clear understanding that the newly freed slaves and their children have a relationship of domicile. They do not have a relationship of any -- to any foreign power. For example, there's a comment where he says, look, people have been here for five generations and clearly have no relationships to any foreign African potentate, you know, or and have a relationship of allegiance to the United States.

And that reinforces our point, that allegiance is what the word jurisdiction means. It doesn't mean regulatory jurisdiction or, you know, sort of being subject merely subject to the laws. They're talking and they're thinking about it in those debates about allegiance.

Now, as to your second question, if you look at the text of the clause, we believe there -- it says, you know, born in the United States -- born or naturalized the United States and subject to the jurisdiction thereof are citizens of the United States and the states of which they reside. So, there's a constitutional guarantee that applies to both federal or national and state citizenship.

And the key point we make there is that that word, reside, if you look at, for example, Section 1473 of Justice Story's commentaries was understood to mean domicile. So, when they say subject to the jurisdiction, and then they go on to say you're a citizen of the United States and the state in which they reside, the very text of the clause itself presupposes that the citizen is domiciled in the United States. If they're present in a state at all, they reside there, reside means domiciled in the Constitution, and we think that strongly supports our interpretation, it's textual evidence of our domicile based theory of jurisdiction.

CHIEF JUSTICE JOHN ROBERTS, U.S. SUPREME COURT: Well, starting with that theory, 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, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.

SAUER: There are those sort of narrow exceptions for ambassador foreign public ships. Tribal, and it's an enormous one that they were very focused on in the debates as well. But what I do is I invite the court to look at the intervening step, which is the enactment of the Civil Rights Act of 1866. And there, they didn't say subject to the jurisdiction thereof. There it says, not subject to any foreign power.

Now, if you go back to Blackstone and Calvin's case, they say it does not matter if you are subject to any foreign power. If you are born in the king's domains, you have this indefeasible duty of allegiance to the king at any time.

So, there's a clear repudiation in the Civil Rights Act. The Civil Rights Act is this breakwater, which makes it very, very clear that they are not thinking about allegiance in the terms of like the British common law, they've adopted the Republican conception of allegiance. So, it's from not subject to any foreign power. And then the debates just a couple months later make it very clear that they're re-codifying the same conception. They were dissatisfied with the potential ambiguity in the phrase, Indians, not tax, and they adopted subject to the jurisdiction thereof.

And one of the strongest statements of this is Senator Trumbull's statement that he quoted at the beginning where he says, he's asked, what does that mean, subject to the jurisdiction thereof? And he says, it means not owing allegiance to anybody else. That is what it means. And this court picked up on that in Elk against Wilkins when it says, uses, you know, completely subject to the political jurisdiction, not marry regulatory jurisdiction.

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: What do you do with Wong Kim Ark's quote of Daniel Webster who said independently of a residence with intention to continue such residence independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing, any former allegiance?

It is well known that by the public law, a non-citizen, while he is here in the United States, owes obedience to this country's laws.

Now, the examples that Wong Ark Kim used as exceptions are situations in which there was not temporary allegiance to the United States. The children of foreign diplomats, whose only allegiance was to their foreign -- to their foreign country and/or occupied territory residents, including those citizens in Maine who had been occupied by the British forces. The U.S. had no control over them. And the whole theory of the Indian tribes was similar. The Indian tribes were analogized to foreign diplomats. So, what do we do with that?

SAUER: I'd say two things. First, as the Indian tribes, we think that's a case that strongly supports us.

[10:15:00]

Because, of course, by 1866 and 1868, there was strong understanding that the Indian tribes were subject to the United States as regulatory jurisdiction.

SOTOMAYOR: But not the same way that temporary foreigners were, meaning there was a real debate going on whether the U.S. actually had jurisdiction over Indian tribes. That's why our cases for the longest time until that was finally settled, said, absence on act of Congress. There is -- our laws don't apply -- U.S. laws don't apply to Indians on Indian lands, correct?

SAUER: I believe if you look at the Rogers decision, for example, that we cite in our brief where they say that they are subject to the --

SOTOMAYOR: That's later. I'm talking at the time.

SAUER: Yes, at the time. So, as to 1817 --

SOTOMAYOR: All right. So, what do you do during the debates of the 1866 Civil Rights Act and of the 14th Amendment with the entire discussion of the people who oppose the amendment, who kept saying, we can't pass it because we're making citizens of gypsies, will have no allegiance to anybody and we're not -- we're going to make citizens of Chinese people who can't be citizens because we're not going to permit them to be citizens? What do we do with those debates and the fact that the proponents of both acts said, everyone who's born in the U.S. will be citizens?

SAUER: First, as the that particular exchange, page 2890, the Congressional record from 1866, Senator Cowan gives this virulently racist statement where he says that, and what does he say right at the beginning of that sort of offensive speech, he says, we can't have children of gypsies, children of Chinese immigrants. We can't have them become citizens. And he says, quote, have they any more rights than a sojourner in the United States? So, he's trying to persuade the Republicans to his view by appealing to a common understanding that sojourners do not have children who become citizens.

SOTOMAYOR: He failed.

SAUER: So, there's powerful evidence there that everybody understood this to, you know, not sweep in the temporary sojourner. And that's why you see for 40, 50 years, you see every commentator who addresses the specific question of temporary presence saying, it's not covered by the clause, including for decades after Wong Kim Ark.

JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: General, can I take you back to the chief justice's question about the specific exceptions to birthright citizenship that everybody seems to agree were recognized under the common law? And it brings up an important principle about how we interpret the law. When particular problems pop up, lawmakers may enact a general rule. When they do that, is the application of that general rule limited only to the situations that they had in mind when they adopted the general rule, or do we say they adopted a general rule, they meant for that to apply to later applications that might come up?

Justice Scalia had an example that dealt with this situation. He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven. And then afterwards, someone is charged with the crime of stealing a microwave oven. And this fellow says, well, I can't be convicted under this because the microwave oven didn't exist at that time, and he dismissed that. There's a general rule there and you apply it to future applications. And what we're dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration.

So, how do we deal with that situation when we have a general rule?

SAUER: Yes, I strongly agree with the way that you framed it, that there is a general principle that's a broad principle that's adopted the phrase subject to the jurisdiction thereof. And we submit that our theory of allegiance and domicile-based allegiance, what explains those specific exceptions that everybody was aware of, but it is broad enough to sweep in future situations. And as you pointed out, illegal immigration did not exist then.

Now, the problem of temporary visitors did exist, and it's very interesting that as you look at pages 26 and 28 of our brief, commentators going from, you know, 1881 until 1922 are uniformly saying the children of temporary visitors are not included. Now, that logic we say it's naturally extends. It's really an Afor-Siorai (ph) case if you have someone who enters illegally by the 1880s, there are restrictions on immigration. If you've entered illegally, it's kind of, you know, a well-established principle of law going back to the Code of Justinian that says you're not allowed to be there. You cannot -- you don't have the legal capacity to create domicile there.

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: But I think, General Sauer, that what you just said suggests that you can't be arguing in the way Justice Alito suggests because most of your brief is not about illegal aliens. Most of your brief, it's about people who are just temporarily in the country, where there was quite clearly an experience of an understanding of that there were going to be temporary inhabitants.

[10:20:01]

And your whole theory of the case is built on that group. You don't get to talking about undocumented persons until quite later and at much lesser, you know, I think it's like ten pages to three pages or something like that.

So, you can't really be going with Justice Alito's theory. You must be saying that there is a principle that developed -- that was there in at the time of the 14th Amendment, isn't that right? SAUER: We agree, there's a principle there at the 14th Amendment. It is -- the jurisdiction means allegiance. The allegiance of a -- and this is very strongly reflected in the 19th century sources. The allegiance of an alien president in another country is determined by domicile. And that goes back to the Venus and the Pizarro (ph). It goes through the Koszta Affair in 1853. It comes right up to Fong Yue Ting and Lao Albud (ph) that are decided shortly before Wong Kim Ark. So, that's the principle. That principle clearly applies here.

I also respectfully disagree --

KAGAN: Yes. And I guess, Mr. -- General Sauer, you know, where does this principle come from, allegiance, domicile? Allegiance, I think you point to a Lincoln funeral speech as your primary example of where this principle comes from. It's certainly not what we think of when we think of the word, jurisdiction, and I appreciate that jurisdiction has many meanings. But, you know, the first meaning is like, if you're subject to jurisdiction, you're subject to the authority of. One doesn't say, oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does.

So, the text of the clause, I think, does not support you. I think you're sort of looking for some more technical, esoteric meaning.

And then the question comes, okay, if the text doesn't support you, if there's a real history of people using it that way, but as far as I can tell, you know, at the time of the 14 -- you're using some pretty obscure sources to get to this concept.

SAUER: Well, I take it straight from the framer's mouths. So, for example, Senator Trumbull said, was asked, what does jurisdiction means? He means sub to the jurisdiction. He said, what does that mean? He says, it means not owing allegiance to anybody else. He is the principle of a framer of the Civil Rights Act of 1866. Representative Bingham, who's the framer of the 14th Amendment is asked, what, what does it mean in the Congressional record of page 1291, he says, within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty. And we've cited many, many examples where the Congressional debates reflect that.

Then you referred to the oration of George Bancroft. That's one of probably 16 sources where there's at least 13, counting that one in the 12 treaties as we cite it, pages 26 to 28 of our brief. There is over a dozen sources that specifically addressed temporary sojourners in the five decades after the enactment of the amendment, every single one of them says, well, temporary sojourner, their children are not included, including for two decades after Wong Kim Ark.

JUSTICE NEIL GORSUCH, U.S. SUPREME COURT: General, if Domiciles the key linchpin to your argument, and I take it that it is, do we look at how domicile is understood in 1868 when do we look at it, how it's understood today in context of the INA?

SAUER: The 1868, understanding that, I'm not aware of a strong difference between those. But -- GORSUCH: Well, here's where I'm going with it. I'm just working within your argument for a moment. Today, you can point to laws against immigration that are much more restrictive than they were in 18 -- we really didn't have laws like that than we do today until maybe 1880. So, if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to any immigration laws. There they were.

And so 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?

SAUER: I would first cite Wong Kim Ark on that point, because Wong Kim Ark says you're --

GORSUCH: Well, I'm not sure how much you want to rely on Wong Kim Ark.

SAUER: But that state -- there is a statement in there that says, so long as they are permitted to be here. So, Wong Kim Ark -- keep in mind that by the time they decide Wong Kim Ark in 1898 --

GORSUCH: I know, but that's 1898. Now, I'm looking at 1868 you're telling me is when I should look and the test for domicile. And the stuff you have about unlawfully present, it's like Roman law sources you're going to.

SAUER: First and second restatements as well, and decisions of this court --

GORSUCH: So, it wouldn't be the INA that would control whether you're, you're capable of having domicile. It would be whatever the law was in 1868.

SAUER: Well, I think that this is addressed by my exchange of Justice Alito from earlier, which is that this concept, jurisdiction, baking in allegiance and domicile --

GORSUCH: So, Congress could continually restrict who may lawfully be present more and more, and you would say that would be incorporated into it, even though you're telling us to apply the original meaning of 1868?

[10:25:08]

SAUER: The original meaning of domicile. And so the question is, is there any argument that the framers intended to preclude Congress from dictating who can and who cannot establish a lawful domicile here? I don't see any evidence of that in the Congressional record. So, it's a natural extension.

GORSUCH: Who's domicile matters? I mean, it's not the child, obviously. It's the parents you'd have us focus on. And you, know, what if -- is it the husband? Is it the wife? What if they're unmarried? Who's domicile? SAUER: Well, in the executive order, it draws a distinction between the mother and the father. That's really the mother's domicile. I think that would matter here, but that person --

GORSUCH: Oh, but 1868 matters, you're telling us? So, what's the answer?

SAUER: The 1868, sources talk about parental, I'm not aware of them dragging distinction between mother or father, but they say that domicile the child follows the domicile of the parents.

GORSUCH: And how are we going to determine domicile? I mean, would we use contemporary sources on what qualifies as domicile in a state? Or do we look in 1868, and do we have to do this for every single person?

SAUER: And, again, I don't see a strong distinction between those because, of course, domicile is a high level concept, has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently, that domicile. When you've come to a new nation, you say, I'm here to stay, become part of their political community, and you become akin to a citizen. And that's reflected very strongly in the case I cited before.

GORSUCH: And just to circle back to Justice Kagan's point, it's striking that in none of the debates do we have parents discussed. We the child's citizenship and the focus of the clause is on the child, not on the parents, and you don't see domicile mentioned in the debates. That's -- the absence is striking.

SAUER: I think the 19th century sources would say a child, a newborn child, lacks the capacity to form a domicile. So they're imputed the domicile of their parents. So, I don't think they would've seen a distinction between children and parents. And I point out that their position, like ours, is forced to look at the domicile of the parents, because we look at the exceptions that they accept, like --

GORSUCH: I'm talking about in the debates over the 14th Amendment and the Civil Rights Act. It's striking that these concepts aren't discussed in those.

SAUER: I think domicile is discussed. I mean, it's brought up in many --

GORSUCH: Allegiance, jurisdiction, complete jurisdiction.

SAUER: Well, I mean, here's just a few examples. Page 1679 of the Congressional record, President Johnson vetoes the first version of the Civil Rights Act, and he says, I can't sign this because it would extend alien citizenship, the children of, quote, all domiciled aliens and foreigners, even if not naturalized. And you have all the other sources we cited that say when it -- and this goes -- this is a deeply rooted 19th century understanding. It's reflected in the Venus, it's reflected in the Pizarro in 1814 and 1817. It carries through the 19th century. And this court is talking about it in 1892 and 1893 when it's discussing the Chinese Exclusion Act. Domicile is the key concept that creates allegiance. That's -- JUSTICE AMY CONEY BARRETT, U.S. SUPREME COURT: 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?

SAUER: Yes.

BARRETT: 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?

SAUER: 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. One of the Miki (ph) in fact points like a Mississippi statute, which probably is replicated throughout the south before the Civil War that says slaves in Mississippi have an indefeasible domicile in Mississippi. In other words, even if they run away, if they get away, Mississippi says, nope, you still live here, right?

And so it'd be astonishing, in other words, for opponents of the 14th Amendment to say, oh, you know, these people were not domiciled and therefore it goes the other way. Because actually U.S. law, even if they were brought in illegally and, you know, through an illegal slave trade, once they were there by --

BARRETT: Well, their intent is to return as soon as they can, let's say. So, they're here, they're resident. And maybe under your theory, I mean, which says, well, lawfulness for a different purpose. But they're here, they're resident. Let's take your assumption that they're not here unlawfully.

But let's say they don't have an intent to stay. They want to escape and go back the second they can. Are they domicile?

SAUER: Under the 19th century law. I mean, I think this is the flipside of the hypothetical that we talked about earlier. Under 19th century law, they are treated as domiciled in the United States, so it'd be astonishing. And the debates in the Congressional floor talk about, not this specific case, but they say, look, slaves who have been forced to come here and have been here are lawfully domiciled here. I mean, they don't use the way domiciled like they have, they use allegiance.

[10:30:02]

They say they don't have allegiance that once they've been forced to come here, they don't have allegiance to any foreign or African potentate, and therefore they're --