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Supreme Court Debates Birthright Citizenship; Justices Roberts and Barrett Appear Skeptical of Trump's Case. Aired 10:30-11a ET

Aired April 01, 2026 - 10:30   ET

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

[10:30:00]

D. JOHN SAUER, SOLICITOR GENERAL: -- use them the way it's domiciled, like they have, they use allegiance. 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 --

JUSTICE AMY CONEY BARRETT, U.S. SUPREME COURT: How would that apply to the children of illegally trafficked people today? Would the same reasoning apply?

SAUER: It would turn on whether the parents are lawfully domiciled in the United States.

BARRETT: So, if they're brought in illegally, but then they choose to remain and they want to remain and they're domiciled, you would say that their lawful presence is not dictated by --

PAMELA BROWN, CNN ANCHOR: All right. You've been listening to the arguments from John Sauer, the U.S. solicitor general on birthright citizenship, and you've heard him challenged by some of the conservative justices, including Chief Justice Roberts.

WOLF BLITZER, CNN ANCHOR: Yes, and the arguments are only just beginning. We're going to have extensive live coverage of this historic argument that's going on right now at the Supreme Court, and we'll do that right after a very quick break.

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[10:35:00]

BLITZER: Welcome back to The Situation Room. Our special coverage continues. We've been listening to this historic debate that's ongoing right now over birthright citizenship. The nine justices of the Supreme Court are hearing arguments back and forth. I want to go back to our live coverage right now. The solicitor general who's representing, in effect, the Trump administration, John Sauer, is right now with Clarence Thomas, the Supreme Court justice. They're going back and forth. Let's listen in.

SAUER: -- temporary, sojourning multiple places in the congressional debates, and all of those quotes go in our direction. JUSTICE CLARENCE THOMAS, U.S. SUPREME COURT: And there was -- Justice Sotomayor brought up Wong Kim Ark. There was no question in that case about domicile, was there?

SAUER: I disagree. The court says at the very beginning of its opinion, here are the accepted facts. These are lawfully domiciled here. When it states the question presented, it talks about domicile. When it recites the legal principle at page 693, it says domicile three times. And at page 705 at the end of the opinion, it says here's the single question we've decided. We've decided that Chinese immigrants with a permanent domicile in residence here are fall within the rule of birthright citizenship.

UNIDENTIFIED MALE: Justice Alito?

JUSTICE SAMUEL ALITO, U.S. SUPREME COURT: Under the minimum definition of domicile, which I think existed in 1868 and continues to exist today, a person's domicile is the place where he or she intends to make a permanent home. Now, normally you would think that a person who is subject to arrest at any time and removal could not establish domicile. But we have an unusual situation here because our immigration laws have been ineffectively, and in some instances, unenthusiastically enforced by federal officials.

So, there are people who are subject to removal at any time if they are apprehended and they go through the proper procedures. But they have, in their minds, made a permanent home here and have established roots. And that raises a humanitarian problem. And I wonder if you could address that.

SAUER: If I may, one legal and one humanitarian. The legal point is, if you look at those cases, for example, Carson against Reed, Park against Barr, this court's decisions in Elkins and Toll against Moreno, they talk about the legal capacity to -- you know, to create a domicile, excluding someone who may have the subjective intent, which otherwise would be determinative, as being excluded.

On the humanitarian point, I would point out, as I said at the beginning, Justice Alito, that the United States rule of nearly unrestricted birthright citizenship is an outlier among modern nations. It's a very small minority of nations that have that rule. For example, every nation in Europe has a different rule. And the notion that they have a huge humanitarian crisis as a result of not having unrestricted birthright citizenship I don't think is a strong argument.

And I point out, obviously, for reliance-related reasons, this executive order applies only prospectively. And we ask the court to rule only prospectively.

UNIDENTIFIED MALE: Justice Sotomayor?

JUSTICE SONIA SOTOMAYOR, U.S. SUPREME COURT: I agree with you what the European nation's rule is. But England was always different, wasn't it?

SAUER: Not until 1983 it changed.

SOTOMAYOR: That's not quite true. The Wong Kim Ark does a wonderful job of laying out the English rule. And you claim it was different, but there isn't any treatises or scholars who say it's different. English rule was always by birth. Other people were not by -- other countries were not by birth.

Let me just go to the implications of what you're asking us to do. You are asking us to overrule Wong Kim Ark. Well, there, Wong Kim Ark's parents were domiciled in the U.S., but they owed loyalty to China. They eventually returned to China. So, they didn't have a primary allegiance to the United States.

So, you're not asking that. Are you asking us to overrule, then, our cases, one of which said that a child of illegal aliens could be, was a citizen? You're asking us to overrule that?

[10:40:00]

SAUER: No, first of all, we're not asking you over to rule Wong Kim Ark. We agree with the quality of Wong Kim Ark and much of the reasoning. And then as for those later cases, starting in 1966, where the court makes sort of, you know, unreasoned references to the --

SOTOMAYOR: Wait a minute. (INAUDIBLE) you loose. The respondent unlawfully overstayed her visa and gave birth to a child here. The court, Harlan II, wrote, the child is, of course, an American citizen. That person wasn't domiciled here lawfully. So, you're asking us to overrule that case?

SAUER: I wouldn't call -- I wouldn't say we're asking you to overrule. We think that's similar to a drive-by jurisdictional ruling where there's a simple statement that's not debated. There's no further analysis of it. There's really an assumption there. And we think that's similar to cases where the court just assumes jurisdiction without discussing it.

SOTOMAYOR: When we ruled in Trent (ph) that Indians could not become citizens, the government then after began to unnaturalize many Indians who had been sworn in as citizens. You asked us to concentrate only on the prospective nature of the citizen's order. But the logic of your position, if accepted, is that this president or the next president or a Congress or someone else could decide that it shouldn't be prospective. There would be nothing limiting that, according to your theory.

SAUER: If as we asked, the court confines its ruling to prospective relief only, which it did in --

SOTOMAYOR: No, I'm saying to you, don't -- yes, that's what you're asking us for relief right now. I'm asking whether the logic of your theory would permit what happened after the court's decision in Trent (ph), that the government could move to unnaturalize people who were born here of illegal residence.

SAUER: No, we believe that the court should do what it did in Sessions against Morales Santana where there was a ruling that would have deprived people who were already citizens of citizenship and the court said this applies prospectively only and we think that's the appropriate course here.

SOTOMAYOR: Well -- but that's not what we did in Trent (ph).

SAUER: We think that Sessions provides the proper course here and that's what we're asking. We are not asking for any retroactive relief.

UNIDENTIFIED MALE: Justice Kagan?

JUSTICE ELENA KAGAN, U.S. SUPREME COURT: General, I think even your brief concedes that the position you're taking now is a revisionist one with respect to a substantial part of our history. And I think that that's in large part because of Wong Kim Ark and the way people have read that case, which of course was in the late 19th century, and have read it ever since then.

And what that case suggests is -- I mean, there's a very clear rationale. You say, oh, it says the word domicile a bunch of times, which it does. It's a long opinion. It says a lot of things. But the rationale of the case is really quite clear. It says there was this common law tradition. It came from England. We know what it was. Everybody got citizenship by birth except for a few discrete categories, which were the ones that the chief justice mentioned at the beginning. And that tradition carried over to the United States. And then what the 14th Amendment did was accept that tradition and not attempt to place any limitations on it.

And so, that was the clear rationale. A clear rationale that is diametrically different from your rationale. And everybody took Wong Kim Ark to say that and to say that as a result of that, of course, birthright citizenship was the rule. And I think everybody has believed that for a long, long time.

And I guess my question is this. You have a story about what, about the reasons why we should go back to what you view as the original meaning. And given the long history of this country's understanding about birthright citizenship, what would it take? What do you think it should take to accept that story in terms of the magnitude of the evidence that we would need to see in order to accept this revisionist theory and in order to change what I think people have thought the rule was for more than a century?

SAUER: Let me make two points in response to that. One historical and one legal. Historical point, I disagree with the way you've characterized the understanding of Wong Kim Ark. And I would point to something that's emphasized in their amici's briefs, which is in 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a law review article in 1921 where he says, I think the children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that. And he admits that there's an array of authorities that go against him.

[10:45:00]

He talks about careful and reliable, high authorities. And that's referring to the consensus that we point out in pages 26, 28 of our brief. We've got 12 treatises from 1881 to 1922 that all say, including for decades after Wong Kim Ark, that say children of temporary sojourners are not included. What happens between 1921 and the 1930s? Well, Mr. Flournoy became a senior State Department official. He adopted that as the policy of the Roosevelt administration. So, their argument is basically saying there wasn't this consensus going back to 1898. The consensus, as their own author admits, goes entirely in the opposite direction.

For 50 years, right, for 50 years from the framing of the clause through the 1920s, maybe 60 years, the general understanding when it comes to what's at issue here and what's not at issue in Wong Kim Ark is the children of temporary visitors do not become citizens under the clause.

And then the legal point, you referred to this sort of concept of temporary and local allegiance, and they rely on the Schooner Exchange, this theory that you've got temporary and local allegiance. But if you actually look at page 572 of the congressional record, right at the beginning, introducing the Civil Rights Act, Senator Trumbull says, I said not subject to any foreign power. I wanted to say born in the United States and owing allegiance to the United States, but I was aware that there's a, quote, "A sort of allegiance from persons temporarily resident in the United States" whom we have no right to make citizens.

So, Senator Trumbull says the reason I haven't adopted the language and meaning that they say should be packed into these provisions is that everybody knows that the children of temporary visitors should not be citizens.

KAGAN: Thank you, General.

UNIDENTIFIED MALE: Justice Gorsuch.

JUSTICE NEIL GORSUCH, U.S. SUPREME COURT: Just to follow up on that point, General, one interesting counterpoint about the understanding of Wong Kim Ark that followed with respect to temporary sojourners. And I take you've got -- you're well taken points. But there was, of course, John Marshall Harlan, the great dissenter who descended in Wong Kim Ark, and later gave a bunch of lectures.

And he posed the question about the sojourners, what suppose an English father and mother went down to the hot springs to get rid of the gout, and while there they have a child. Now, back in England, is that child a citizen of the United States, born of the jurisdiction thereof by mere accident of birth? And he says, under Wong Kim Ark, he is. And he continues, I was one of the minority, and of course I was wrong. Now, I'm sure that was tongue in cheek, but what do you do with that? SAUER: I draw the -- I mean, I say two things in response to that. First of all, he gave a speech, but we have 12 uncontradicted treatises that say the opposite, that that is not what Wong Kim Ark means, and that's not the meaning of the clause. But also, I make a more fundamental point. When you're looking at Wong Kim Ark, one of the -- the dissent has this dominant theme that -- really dominant theme like you can't be doing this because you can't make the -- we all agree or it's obvious that the children of temporary visitors do not become citizens. And how does the majority opinion address that? It says domicile three times when it recites the legal rule. It says permanent residence and domicile when it decides the holding.

So, the court should be bound by what it says. This is what we're deciding. And again, on page 75, it says, this is the single question. Now, there's been a lot of discussion up to that point. But at the very end, they said the single question we've decided is the citizenship says the children of Chinese immigrants with a permanent residence and domicile in the United States.

GORSUCH: Do you think Native Americans today are birthright citizens under your test and under your friend's test?

SAUER: I think so. I mean, obviously they've been granted citizenship by statute.

GORSUCH: Put aside the statute. Do you think they're birthright citizens?

SAUER: 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: 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 us apply today, right?

SAUER: Yes. Yes. So, if a tribal Indian, for example, gives up allegiance to --

GORSUCH: Are tribal (INAUDIBLE) born today, birthright citizens?

SAUER: I think so, on our test, yes. If they're lawfully domiciled here.

GORSUCH: OK. And then --

SAUER: I'm not -- I have to think that through, but that's my reaction.

GORSUCH: I'll take the yes. That's all right. And then I just want to ask you quickly about the INA adopted in 1940 and 1952. It uses the same term as the citizenship clause. And one might have a pretty good argument. I'm sure you've got some arguments along just these lines that it should be understood to mean whatever it meant in 1868. But there was a lot of water over the dam between those two things. And as your brief points out, by the Roosevelt administration, there's a pretty strong juice solely move. That is to say that the thin concept of jurisdiction power over is enough. A broader understanding of birthright.

Would there be an argument for reading that statute under its original plain meaning at the time, 1940, 1952, to perhaps have a different meaning than the Constitution?

[10:50:00]

SAUER: We don't think that's the best interpretation for two reasons. One is, it would be very surprising if a statute that says exactly the constitutional phrase, under the jurisdiction thereof, were interpreted to mean something totally different or to ossify a then current misunderstanding of the clause.

We think that the best analogy here is probably state long arm statutes. Take a sort of non-controversial example. State long arm statutes routinely say we're going to exercise personal jurisdiction to the extent of due process. It takes the constitutional standard and it puts it in the statute. And nobody thinks that those ossify are limited to this court's precedence at the time they were enacted. Everyone thinks that that phrase, due process, incorporates, you know, the developing law of due process and minimum context and so forth, including from this court.

So, we think that's the best analogy when it's -- when you're looking at the constitutional phrase itself and you take it out of a freighted context, the natural interpretation is to say this means -- this reflects the objective meaning of the Constitution. And the objective meaning of the Constitution is its original public meaning in 1866 and 1868.

GORSUCH: Do you see any notable counterpoints to that argument?

SAUER: I'm sure there are arguments on the other side. We've addressed them in their brief.

GORSUCH: So, you're really, at the end of the day, then, this is a straight-up constitutional ruling you want from this Court, win or -- win, lose, or draw?

SAUER: Yes. We think that the statute in the Constitution means the same thing. If the Court disagrees, obviously we'd prefer an adverse ruling if the Court's going to do that on a statutory basis than a constitutional basis.

GORSUCH: But you just disavowed that in your responses to me by saying that's not an available option. That's the way I understood it.

SAUER: Yes. The Court would have to disagree with our statutory position, which is that it means the same thing as the Constitution. But if the Court were to do that, then the national courts would probably be to rule on statutory grounds alone. Now, we think they mean the same thing, and we've got arguments for that, including, I think, the analogy I just referenced.

GORSUCH: Thank you.

UNIDENTIFIED MALE: Justice Kavanaugh.

JUSTICE BRETT KAVANAUGH, U.S. SUPREME COURT: General, how should we think about the text of the 14th Amendment, subject to the jurisdiction thereof, as distinct from the different language of the Civil Rights Act of 1866, which refers, as you know, to persons not subject to any foreign power? Those texts are, on their face, different. And the history that Justice Kagan referred to might have developed quite a bit differently if the 14th Amendment's text had used the phrase that was in the Civil Rights Act.

SAUER: That's an excellent point. And this Court has held in multiple cases, heard against Hodge and general building contractors, has recognized that they are intended and they did mean the same thing. And that's powerfully reinforced by the Congressional debates, where you, really what they're discussing is they said they were dissatisfied with the language in the Civil Rights Act because the phrase, Indians not taxed, they thought was ambiguous. And so, they switched to the affirmative statement as opposed to the negative statement.

The affirmative statement, subject to the jurisdiction thereof, but there's express statements in the Congressional record, essentially, that we're doing the same thing, and that is what this Court's case law has reflected.

KAVANAUGH: Why didn't they say the same thing?

SAUER: Again, it appears they preferred the sort of positive formulation, subject to the jurisdiction thereof, as opposed to not subject to any foreign power. And again, there's a deep concern and lengthy discussion of the potential ambiguity in the Civil Rights Act. They wanted to eliminate an ambiguity, but do the same thing, and I think that that's very strongly reflected in those debates.

KAVANAUGH: By the time of the 1940 and 1952 Congressional actions where Congress repeats, subject to the jurisdiction thereof, given Wong Kim Ark, one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be. And yet, Congress repeats that same language, knowing what the interpretation had been. So, how are we to think about that?

SAUER: I think baked into that question is an understanding, I think that was reflected in Justice Kagan's earlier question, that everybody understood that Wong Kim Ark meant that in the history I talked about. I think refutes that, that really there's a consensus that goes our way for decades and decades. After the adoption of the amendment, and after Wong Kim Ark on the specific question of the children of temporary visitors.

And it's really not until -- and again, their author in 1921 is saying, hey, the other side is the consensus.

KAVANAUGH: Do you -- I'm sorry. SAUER: Sorry, go ahead.

KAVANAUGH: But there's executive branch interpretations and others. And if you're in Congress in 1940 and 1952, and you want to limit the scope of Wong Kim Ark or to eliminate ambiguity, why do you repeat the same language rather than choosing something different? For example, you could use the language from the Civil Rights Act of 1866 or some similar formulation if your idea in 1940 and 1952 was to not have ambiguity or not have an overly broad scope.

[10:55:00]

SAUER: I think if you look at the structure of that statute, where it's 1401A and then B through H. A, it says these are the people who are entitled to birthright citizenship. A is the constitutional standard, and then B through H are all the categories --

BLITZER: All right. Everybody stay with us. We're going to have much, much more from the U.S. Supreme Court as the nine justices consider the future of what's called birthright citizenship. We'll be right back.

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