Return to Transcripts main page

The Situation Room

Supreme Court Hears Case on Birthright Citizenship. Aired 11- 11:30a ET

Aired April 01, 2026 - 11:00   ET

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

[11:00:00]

(COMMERCIAL BREAK)

[11:00:10]

ANNOUNCER: This is CNN breaking news.

WOLF BLITZER, CNN HOST: 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.

We're following major breaking news this morning. It's truly a historic day at the United States Supreme Court, where oral arguments are underway over what's called birthright citizenship.

PAMELA BROWN, CNN HOST: President Trump on his first day in office of his second term signed an executive order denying birthright citizenship to children born in the U.S. to undocumented immigrants and temporary visitors.

The case will decide President Trump's efforts to end the constitutional right for citizenship under the 14th Amendment for almost anyone under those categories born on U.S. soil.

BLITZER: A sign of just how important this case is, President Trump himself is there at the Supreme Court. He's sitting, the president, there watching and listening to all of the arguments that are going on. He wanted to attend the Supreme Court argument.

Lower courts have ruled against the president's executive order, saying the automatic citizenship is protected by the 14th Amendment to the Constitution. The president, though, is hoping the Supreme Court will overrule all of this.

BROWN: Right now and all morning long, protesters, as you see right here, have been gathering outside the Supreme Court for this high- stakes hearing today. We have seen hundreds of people there.

Let's take you back inside the High Court.

D. JOHN SAUER, U.S. SOLICITOR GENERAL: ... much more, it is a modified use solely, because even the British sources don't just say you're born here, you're a citizen. They say you're born here and you have to be under the protection of the sovereign. You have to have a relationship of allegiance.

Allegiance is the word in Calvin's case.

(CROSSTALK)

AMY CONEY BARRETT, U.S. SUPREME COURT ASSOCIATE JUSTICE: But they don't focus on the parents. It's the child. And your approach focuses on the parents' allegiance.

SAUER: Yes, I'm not sure that that's true...

(CROSSTALK)

BARRETT: It seems a little ambiguous, and I'm going to ask your friend on the other side that question.

SAUER: Let me point out then that there are two criteria. One is birth on the soil and the other is allegiance or allegiance. What we have is, birth on the soil remains the same, right?

And so they are -- and that's why so much of Wong Kim Ark is actually -- we agree with, because they are adopting a modified British rule. They are not going the French rule that Vattel talks about where it's like, who's the citizen?

That had to be done by statute, as you pointed out, which it was in 1401. But what they have got is, they say birth in the United States and subject to the jurisdiction thereof. That is talked about as allegiance, allegiance, allegiance in the congressional debates.

But they were clearly not incorporating the British feudal monarchial conception of allegiance, where it's indefeasible. I mean, going back to the early 1700s, our nation had reputed the notion that citizenship is indefeasible.

The expatriation statutes for the late 1700s reflect that. And, again, you look at the 1868 congressional report that we cite. There, this is the same group of congressmen, Republican congressmen, and they say things like the U.S. Constitution itself is proof that Blackstone's theory of allegiance was not accepted.

So they accept birth on U.S. soil, but then they take the concept of allegiance and give its republican, democratic, American understanding. And that's very, very -- I think that makes a ton of sense.

BARRETT: OK, let's talk about its applications.

So there are some -- I can imagine it being messy on some applications. So, how -- what would you do with what the common law called foundlings? The thing about this is, then you have to adjudicate. If you're looking at parents and if you're looking at parents' domicile, then you have to adjudicate both residents and intent to stay.

What if you don't know who the parents are? SAUER: I think there are marginal cases. That one, I think has the

benefit of being addressed in 1401F, where it talks about...

(CROSSTALK)

BARRETT: Yes, yes, yes, yes, but what about the Constitution?

SAUER: Under the Constitution, it's -- I mean, look, domicile is a constitutional standard in all kinds of other situations.

BARRETT: Well, and it's hard. I mean...

SAUER: Diversity jurisdiction, personal jurisdiction. Sorry.

BARRETT: Well, yes, and personal jurisdiction, I mean, 1332, diversity jurisdiction.

And the thing is, it has to be litigated because it turns on intent. And both the virtue of both and jus soli and jus sanguinis, whichever one you pick, it's a bright-line rule. How would it work? How would you adjudicate these cases?

You're not going to know at the time of birth for some people whether they have the intent to stay or not, including U.S. citizens, by the way. I mean, what if you have someone who is living in Norway with their husband and family, but is still a U.S. citizen, comes home and has her child here and goes back?

How do we know whether the child is a U.S. citizen because the parent didn't have an intent to stay?

SAUER: I'd say -- make two points, one practical, one legal.

The practical point is, under the terms of this executive order, you don't have to because the executive order turns on objectively verifiable things, which is immigration status. Are you lawfully present, but temporarily present, or do you have an illegal status?

So those kind of, like, taking evidence, so to speak, under subjective intent wouldn't be done. And as to the constitutional point, obviously, domicile is baked into a lot of constitutional and legal concepts. And there may be situations where facts are determined.

[11:05:02]

But if you look at the guidance, the guidance that all the agencies did after this court in CASA said the agency could go forward and issue guidance. The guidance provides, I think, very, very clear, objective, verifiable approaches to doing this.

And so, as a practical matter, I don't think it's presented by this executive order.

BARRETT: Thank you, General.

JOHN ROBERTS, CHIEF JUSTICE OF THE U.S. SUPREME COURT: Justice Jackson?

KETANJI BROWN JACKSON, U.S. SUPREME COURT ASSOCIATE JUSTICE: Good morning, General.

So I guess I am looking at your position in this case, and it boils down to requiring us to do at least these two things. One is believe that the framers were not importing the common law rule and understanding of birthright citizenship.

And the second is to believe that what they were doing was departing from that common law rule in the way that you suggest, that is, in the -- they were seeking to have this turn on domicile. I think you have a number of hurdles to accomplish those two things, one of which, I think, is that when we look at this court's case law -- and no one, I think, has mentioned Schooner's Exchange, but it appears that -- that was a 19 -- an 1812 case in which it seems as though the court had already accepted at the time of the ratification of the 14th Amendment that the allegiance that you are talking about was the English common law rule.

That, in other words, allegiance meant that you are covered by the laws of the jurisdiction, that you can rely on that jurisdiction's protection. That's what allegiance meant.

Now, you're saying today, no, no, allegiance meant something about loyalty or that kind of idea. But if the Supreme Court had prior to the 14th Amendment established that allegiance meant the common law definition, I think your first hurdle is to help us understand why we would believe that, when the common -- when the 14th Amendment was ratified, the framers weren't just incorporating what we had previously said it meant.

SAUER: Page 572 of the congressional record directly addresses this.

They say the concept of temporary and local allegiance from the Schooner Exchange is what is meant by -- or temporary and local jurisdiction from the Schooner Exchange is what is meant by the word jurisdiction in the 14th Amendment.

Senator Trumbull says, I thought about saying owing allegiance, but again -- quote -- "There's a sort of allegiance from persons temporarily resident in the United States whom we have no right to make citizens."

So, he expressly and consciously rejected reliance on...

(CROSSTALK)

JACKSON: OK, but what -- what do we do with -- I mean, that's a debate and it's a discussion, very valid, but then we have a subsequent debate between Fessenden and Wade where the same concept comes up and it becomes clear, at least from Senator Wade's perspective, that that's wrong.

So, Senate -- Fessenden -- and I'm not sure whether these are senators. I apologize. Fessenden says: "Suppose a person is born here of parents from abroad temporarily in this country."

Wade responds: "The senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside near the United States," et cetera, et cetera.

So, it appears as though, in that exchange, at least Senator Wade believed that the English common law understanding of what it means to have allegiance, to be a temporary person on the soil was what was being adopted.

SAUER: Yes, that concept -- or that exchange strongly supports us if you look at it in context.

Senator Wade has introduced a version that says only birth on U.S. soil and doesn't have any allegiance or jurisdictional element to it. And so Senator Fessenden stands up and says, well, that can't be right, because, obviously, what about the children of temporary visitors?

It has this -- it's another one of these statements that has this appeal to a background understanding that we all agree that the temporary visitors, their children do not become citizens. And then Senator Wade has to kind of backtrack and say, well, what if they're children of ambassadors?

And in the end, Congress does not adopt Senator Wade's proposal. So we think that, to the extent you can draw an inference of that, the inference strongly supports us.

JACKSON: All right, well, let me just ask you about why we wouldn't see in the 14th Amendment anything about parental allegiance.

Several of my colleagues have talked about the fact that your view of this turns on what the status of the parents are and not the child, as would the born in the United States view of it. Can you help us understand why we wouldn't expect to see a mention of parents in the text of this amendment?

[11:10:00]

SAUER: I think it was well understood that, for example, children cannot -- newborns cannot form domicile, so it followed -- every 19th century...

JACKSON: That assumes domicile is in the test. And I'm asking you, how do we know that Congress did adopt the test that you say it adopted?

SAUER: Yes.

When you're looking at 19th century conceptions of allegiance, the notion that the allegiance -- again, we say domicile is instantiating the concept of allegiance for aliens, as opposed to citizen. All of that, the 19th century understands the newborns, domicile, its allegiance follows the allegiance of the parents. And I point out that their theory relies on parental allegiance as

well, because they recognize the exceptions for hostile invading armies, for tribal Indians, for ambassadors. Again, the child's allegiance status, even on their view, turns on the status of the parent.

JACKSON: All right, what do we do with Professor Muller's amicus brief and the historical record and the fact that even at times in this country where we understood that the parents were declared enemies of the United States -- I'm talking about World War II and Japanese internment -- babies born in that circumstance were given birthright citizenship?

So it seems as though this concept of allegiance of the parents really wasn't driving birthright citizenship, at least at this period of our history. So are you saying this is wrong or they shouldn't have gotten birthright citizenship?

SAUER: Well, if they were domiciled here, yes, they should have. If they were temporarily present, then no.

But the executive practice we can see from the 1930s.

(CROSSTALK)

JACKSON: How does the temporary presence run with your concept of allegiance? I'm not sure I understand. So, can you be clear? Are you saying that only people who are domiciled here, as you define it, can form the necessary loyalty to the United States?

SAUER: It's not a question -- allegiance is not a question of subject of loyalty.

JACKSON: OK.

SAUER: Owe -- it is something you owe. It's a reciprocal relationship between the citizen. Whether they want it or not, they have that allegiance. And I think it's powerfully...

JACKSON: On the basis of what?

SAUER: Domicile. I mean, that's what it says in so many words in the Venus and the Pizarro.

It says, look, if you're talking about an alien, if they're just temporarily passing through, no, they don't have allegiance, but if they have made it their permanent home, they become part of our political community and they are analogous or akin to citizens.

JACKSON: Yes. All right.

Just quickly, because I'm mindful of the time, what do you do with Wong Kim Ark's statement that birthright citizenship is applying -- quote -- "independently of a residence with intention to continue such residence, independently of any domiciliation"? I know that they use domicile. It's a fact in the case, but that's not a part of their holding. It's not what the reasoning turns on, correct?

SAUER: I believe you're -- yes, I believe you're quoting from page 693 of that opinion.

And it goes on to say not citizen terms on that, but the duty of obedience to our laws. It doesn't take the further step at that point, say, therefore, if you have temporary and local allegiance, you're a citizen.

And immediately before that, you have that page 693 summary of the court's holding where it says domicile, domicile...

(CROSSTALK)

JACKSON: So, you say Wong Kim Ark incorporates a domicile requirement?

SAUER: That is the holding. It's definitely clearly expressed in the holding.

(CROSSTALK)

JACKSON: All right, one final thing.

Prospective. You say prospective, we're supposed to do this. Don't worry about the people who are already here and who would not qualify under your rule. How does this work? Are you suggesting that, when a baby is born, people have to have documents, present documents? Is this happening in the delivery room?

How are we determining when or whether a newborn child is a citizen of the United States under your rule?

SAUER: And I think that's directly addressed in the SSA guidance that's cited in our brief. What SSA says is, there's currently a system where, for example, Social Security numbers are generated based on the birth certificate.

They say this can still be for the vast majority of instances completely transparent. You will still get a...

(CROSSTALK)

JACKSON: Not on transparent. I'm just talking about the particulars, because now you say your rule turns on whether the person intended to stay in the United States.

And I think Justice Barrett brought this up. So are we bringing pregnant women in for depositions? What are we doing to figure this out?

SAUER: No, as I pointed out earlier, the executive order turns on lawfulness of status. So, if you give birth to a baby in the hospital right now, it gets the birth certificate in the system. There's a computer system.

(CROSSTALK)

JACKSON: So there's no opportunity -- there's apparently no opportunity then for the person to prove or to say that they actually intended to stay in the United States?

SAUER: Absolutely not. The opposite is true. Their opportunity to dispute if they think they were wrongly denied, which would only happen in a tiny minority of cases...

JACKSON: After the fact?

SAUER: ... is directly addressing that guidance.

JACKSON: After the fact.

SAUER: Yes. Yes.

JACKSON: After their baby has been denied citizenship, then we can go through the process?

SAUER: Yes.

And the way that -- I mean, I'm summarizing because I'm not an expert at computers.

JACKSON: Yes.

SAUER: But there's a computer program that currently automatically generates a Social Security number. SSA says, look, a Social Security number, noncitizens can have them if they have work authorizations. It doesn't prove citizenship.

We will give you a Social Security number, provided that there's -- the system automatically checks the immigration status of the parents, which there are robust databases for, and then you -- it appears no different to the vast majority of birthing parents.

[11:15:04]

JACKSON: Thank you.

ROBERTS: Thank you, counsel.

Ms. Wang.

CECILLIA WANG, NATIONAL LEGAL DIRECTOR, AMERICAN CIVIL LIBERTIES UNION: Mr. Chief Justice, and may it please the court, ask any American what our citizenship rule is, and they will tell you. Everyone born here is a citizen alike.

That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy. When the government tried to strip Mr. Wong Kim Ark's citizenship on largely the same grounds they raised today, this court said no. Thirty years after ratification, this court held that the 14th

Amendment embodies the English common law rule. Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen. It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign's jurisdiction even when they're in the United States, a closed set of exceptions to an otherwise universal rule.

My friend has now clearly said that the government is not asking you to overrule Wong Kim Ark. That is a fatal concession, because Wong Kim Ark's controlling rule of decision precludes their parental domicile requirement.

The dissent understood that, and the majority tells us six times in the opinion that domicile is irrelevant under common law. Lynch v. Clarke was already the dominant American case on citizenship, and it held that the U.S.-born daughter of temporary visitors from Ireland who took the baby back to Ireland with them, that that daughter was a U.S. citizen.

Authorities, including Lincoln's attorney general and Kent's Commentaries embraced Lynch. And Kent specifically talked about temporary sojourners' children being U.S. citizens. Justice Field said in 1884 that that reflected the general understanding.

That understanding was confirmed by Congress with its 1940 act. The 14th Amendment's fixed bright-line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable and it prevents manipulation.

The executive order fails on all those counts. Swathes of American laws would be rendered senseless. Thousands of American babies will immediately lose their citizenship. And if you credit the government's theory, the citizenship of millions of Americans, past, present, and future, could be called into question.

All of this tells us the government's theory is wrong. I welcome the court's questions.

CLARENCE THOMAS, U.S. SUPREME COURT ASSOCIATE JUSTICE: There are five exceptions to citizenship that you do accept.

WANG: Yes, depending on how many you count, Justice Thomas, how you count them.

THOMAS: What is the underlying rule of law that you use to connect these five exceptions?

WANG: Sure.

So as I just said, all of the exceptions involve situations where that U.S.-born child is not subject to the jurisdiction of the United States, because that extraterritoriality, the fiction of extraterritoriality, the interaction of another sovereign between the United States' jurisdiction and that person, applies to the child, as well as to the parent. Everyone else born in the United States is subject to the United

States' jurisdiction. To answer Justice Barrett's question to my friend, that's what sets those exceptions apart from other U.S.-born persons.

ROBERTS: We have heard a lot of talk about Wong Kim Ark. And you dismiss the use of the word domicile in it. It appears in the opinion 20 different times, and including in the question presented and in the actual legal holding.

And the government doesn't want it to be overruled because it relies on it -- willing to rely on that particular fact in that case. Isn't it at least something to be concerned about to say that, since it's discussed 20 different times and has that significant role in the opinion, that you can just dismiss it as irrelevant?

WANG: Well, Chief Justice, Mr. Chief Justice, I think we have to look at what the controlling rule of decision is in Wong Kim Ark.

Justice Gray takes pains in the majority opinion to set out his analysis. He first starts with a premise that, in construing the 14th Amendment citizenship clause, we look to the English common law. That was the rule that applied from the colonial era on, at least for the colonists and for European immigrants.

[11:20:09]

He then says -- look, Chief Justice Marshall tells us in the Schooner Exchange what subject to the jurisdiction means, again looking to the English common law.

Under English common law, if you are born in the dominions of the sovereign, you owe natural allegiance. And those who are present in the dominion of the sovereign owe temporary allegiance for as long as they're present.

The only exceptions, again, at common law were ambassadors, people born on foreign ships, and people who were born during periods of foreign occupation. He then gets to the government's favorite page, 693, where he says, look, we have had this rule in the United States as to citizenship, at least for white Americans, from before independence.

The purpose of the 14th Amendment was to embrace that universal rule of birthright citizenship, to embrace and incorporate the common law exceptions, with the single additional exception of the preexisting exception for tribal Indians that we had in the United States, which is an analogous exception, and that's the closed set of exceptions.

You can't make sense of the holding in the case without looking to the controlling rule of decision, which is the common law. And I think my friend agrees that, under English common law, domicile was not relevant, and the children born to temporary visitors in the territory of the sovereign were always considered birthright citizen.

ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE: Well, Ms. Wang, I mean, everything you say strikes me as, yes, that's -- that's the way I read it too.

But then what are those domicile words doing there? Like, you can take some of them and say, I don't know, they were just summarizing the facts of the case, but not all of them. And why did they keep on -- like, why did they sprinkle that in the opinion?

WANG: Well, I think, again, that was -- those were the stipulated facts in the case. And it's clear we have textual evidence in the majority opinion that they were simply saying this is an a fortiori application of that controlling rule that comes from the English common law.

Justice Gray writes, again, after setting out the English common law rule and the exceptions, with the single additional exception for children of members of Indian tribes, that: "The amendment in clear words and manifest intent includes the children born within the territory of the United States of all other persons of whatever racer color domiciled within the United States."

And, as was pointed out earlier, the very next part of the -- that same paragraph, he cites to Webster talking about Thrasher's Case. And he says: "People who are born in this country owe allegiance independently of a residence within" -- I'm sorry.

"Foreign nationals owe allegiance independently of a residence with intention to continue such residence independently of any domiciliation and independently of taking any oath of allegiance," which is totally contrary to both the government's theory of dual allegiance or partial allegiance and to the theory of domiciliation.

SAMUEL ALITO, U.S. SUPREME COURT ASSOCIATE JUSTICE: I mean, I would, -- I might agree with you if domicile had simply been sprinkled in the opinion.

But in Wong Kim Ark -- it's a long opinion, but it begins by saying, here's the question, and it ends by coming back to the question. And it says: "Here's the question," stated at the beginning of the opinion, "namely, whether a child born in the United States or parents of Chinese descent who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States and are there carrying on business."

And he states the diplomatic exception. And he says: "For the reasons above stated, this court is of the opinion that the question must be answered in the affirmative."

So why put domicile in -- sometimes, it's hard to figure out what is the holding of the case. Here, he tells us, this is the holding of the case. Why put domicile in there?

WANG: Well...

ALITO: It's just something -- it's something irrelevant that he wanted to throw in? It's like, "whether a child born in the United States or parents of Chinese descent who once resided at a particular address in San Francisco who attempted to enter the country at the Port of San Francisco."

Why put it in if it's irrelevant?

WANG: Well, Justice Alito, I will liken -- I will give you two responses. The first is that, again, it was a stipulated fact.

The second is that, regardless of what the judgment in the case was, which, again, was an a fortiori application of the rule of decision, the rule of decision in Wong Kim Ark has binding precedential effect.

Even if you think that Wong Kim Ark decided the case based on the stipulated facts, you have to follow that controlling rule of decision. And if you follow that rule, you get to the same result for people without domicile.

[11:25:11]

Wong Kim Ark says six times in the first parts of the opinion, as well as on the page the government focuses on, that domicile is not relevant.

BROWN: All right, you have been listening to the ACLU's Cecillia Wang, who has been arguing against the administration, in favor of upholding the centuries-old understanding of birthright citizenship in the United States.

Interesting to note, she is actually a birthright citizen. She was born in America when her parents were here on a student visa. So she has a personal tie to all of this.

We're going to continue to track all of this. Everyone, stay with us. We will have more from the Supreme Court as the justices consider this key question of birthright citizenship.

Stay with us.

(COMMERCIAL BREAK)