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Supreme Court Hears Arguments on Birthright Citizenship. Aired 11:30a-12p ET

Aired April 01, 2026 - 11:30   ET

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

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WOLF BLITZER, CNN HOST: Welcome back to our special coverage of the United States Supreme Court hearing arguments for and against what's called birthright citizenship.

By the way, we're told the president of the United States, President Trump, has just left the Supreme Court, heading back in his motorcade to the White House. He was there when John Sauer, the solicitor general, was making his case against birthright citizenship.

But now Cecillia Wang, the legal director of the American Civil Liberties Union, the ACLU, is making the opposite case against the Trump administration. Trump has gone back to the White House, isn't hearing this part, at least not in person.

We're going to continue our special coverage right now.

KETANJI BROWN JACKSON, U.S. SUPREME COURT ASSOCIATE JUSTICE: A foreigner who is doing everything they can and who can't be naturalized, but he might have emphasized those facts in this case precisely because Chinese immigrants were unwanted, precisely because he had to get this out into the public.

And people were going to say, whoa, you're saying these people have to -- this baby has to be a citizen? And so one could imagine that it was important from a standpoint of helping people accept this citizen rule under these circumstances to emphasize that these particular people in this case were in Justice Alito's first category.

CECILLIA WANG, NATIONAL LEGAL DIRECTOR, AMERICAN CIVIL LIBERTIES UNION: I think that is very possible, Justice Jackson.

And as evidence of that, I would point to the fact that, if you look at the briefing in Wong Kim Ark, you will see that, even though the parties had stipulated in the district court that Wong Kim Ark's parents were domiciled in the United States, when the case came to the Supreme Court, the government's brief argued that it was impossible for Chinese immigrants to have domicile, because they expressed the view that was common among people who opposed immigration by Chinese nationals to the United States.

There was a common view that Chinese people were inherently temporary sojourners in the country. And so I do think it's possible, Justice Alito and Justice Jackson, that he was trying to dispel that notion and tell the government...

JACKSON: Absolutely, that at least it reads as though he's trying to -- to calm everyone down. These particular people were domiciled, but we're following the English common law rule.

And when you look at the English common law rule, domicile is not a factor.

WANG: That's right.

I think -- who knows why the majority opinion mentions domicile. We know it's a stipulated fact. We know the government tried to renege on that stipulation and rely on this assumption on the part of anti- Chinese advocates at that time that Chinese people couldn't form a domicile in the United States.

And he followed the English common law rule.

(CROSSTALK)

AMY CONEY BARRETT, U.S. SUPREME COURT ASSOCIATE JUSTICE: Ms. Wang, can I...

UNIDENTIFIED FEMALE: Go ahead.

BARRETT: I just wanted to ask you a question about how the exceptions fit within the general rule. You have called them exceptions, and some of the common law sources call them exceptions. So I take that point.

But if we think of jus soli as tied to the territory and we look at the exceptions as territorial in a sense, then they seem kind of like natural outgrowths of that rule. And this is what I mean, and this is where I want your help with how the exceptions played out in practice.

If you look at Indian reservations as unique places because Indians were quasi-sovereigns, separate nations in the American system, if you look at occupied alien territory as territory that's outside the jurisdiction of the United States, and then if you look at the diplomatic exception almost like diplomats and their children had little bubbles around them, like the embassy is really the territory of that country.

And even when they're traveling around, they're all not subject to the jurisdiction by virtue of this territorial fiction. Are those just applications of the rule? And if they are, then what happens to alien enemies like the German spies in Ex Parte Quirin?

Or what happens to Indians who are actually not on the reservation, but maybe born, say, in Baton Rouge? How does the rule apply in those situations? Is it travel with the person or is it tied in some sense to the land? WANG: Sure.

So, let me answer each part in turn. So the thing that all of the exceptions have in common, again, is this sense that the person is -- has this fiction of extraterritorial -- extraterritoriality around them.

[11:35:03]

Let's set aside the Indian tribal exception for a moment and come back to it. So the example of enemy aliens, for example, Ex Parte Quirin, is one that is answered by Justice Story both Inglis and in Rice.

And the touchstone under the American application of English common law was that, in wartime, the touchstone is whether there's a foreign occupation of us territory. So...

BARRETT: And that's -- just to interrupt for one second to verify.

WANG: Sure.

BARRETT: And that is territorial. Sometimes, it just seemed to me that the rule varied. Sometimes, it was stated as enemy alien, and, sometimes, it was focused on occupied territory.

WANG: Sure.

So, the rule -- I don't think there's a separate rule for enemy aliens. And the government's briefs describe the exception as an enemy alien exception. I don't think that is the best way to think about it.

Rice and Inglis tell you that, when the British forces are occupying Castine, Maine, no one is subject to U.S. jurisdiction there, because Britain is ruling, is governing Castine, Maine.

And Justice Story explains, look, if the U.S. then retakes that territory, people, babies who are born to U.S. citizens by what we call postliminy become U.S. citizens. So that's the way to think about any wartime situation, enemy aliens or otherwise.

As we heard earlier, Professor Muller's amicus brief tells us how we have thought about enemy aliens in wartime. Even in World War II, when the United States was detaining Japanese nationals who were deemed enemy aliens of the United States, when those enemy aliens had babies in these detention camps, everyone agreed that those babies were U.S. citizens.

And Professor Muller goes on to explain that there are many cases of those U.S. citizens going on to a lifetime of government service to the United States. Everyone agrees those babies are U.S. citizens, like everyone else.

So, again, the touchstone for enemy aliens is, is there an occupation?

BARRETT: So what about Indians? What about the Indian who's off the reservation or born off of a reservation? WANG: Sure.

So, to start with the basics, the -- I will refer to the Indian tribal exception, just to use the term of art. The Indian tribal exception, Elk v. Wilkins tells us, comes from the constitutionally unique status of Indian tribes. In the Indian Commerce Clause, we know that tribes are treated as basically quasi-sovereign nations.

We know that from the Marshall trilogy of cases. We know from Worcester v. Georgia, where Chief Justice Marshall said that the tribes are essentially a distinct political community.

BARRETT: Well, I understand all that.

WANG: Sure.

BARRETT: So, just in the interest of time, just to focus you...

WANG: Sorry.

BARRETT: ... how -- I understand why the Indians are treated differently for purposes of the law. But I want to know, is it tied to territory or is it tied to the status of someone as a member of a tribe?

Because, if you're looking at it because of the special relationship of Indians to the United States as a matter of the Constitution, et cetera, well, I mean, citizens of France are citizens of a different sovereign as well.

WANG: Sure.

So, Elk v. Wilkins doesn't really answer that question. The court says there are two ways to look at this. Either you look at it as a tribal member is like an ambassador, or you can look at it like there's a territoriality issue where people are born on tribal lands.

BARRETT: Right.

WANG: And, therefore, they're essentially, I think he says -- Justice Gray says at one point, we might as well be talking about someone who's born in Mexico.

NEIL GORSUCH, U.S. SUPREME COURT ASSOCIATE JUSTICE: Well, there's a lot in Elk. And some of it's not terribly helpful for you, it seems to me, because Justice Gray, again, strikes again, says that they may be subject in some degree or respect to the United States.

So there's some jurisdiction. He says they're born in the geographic limits. They are, in a geographical sense, born in the United States, but because they are not completely subject to the jurisdiction of the United States and owe allegiance distinct from the United States, that's what takes them outside.

And that language sure sounds a lot like the solicitor general's presentation today. WANG: To the contrary, Justice Gorsuch, I embrace that part of Elk v.

Wilkins' holding. Justice Gray, of course, wrote both Wong Kim Ark and...

GORSUCH: I know. And it's a...

BLITZER: We're continuing to hear the arguments, right now, Cecillia Wang of the ACLU making the case against the Trump administration's effort to try to deny birthright citizenship here in the United States.

We will take a quick break, continue our special coverage right after this.

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[11:44:31]

PAMELA BROWN, CNN HOST: Welcome back.

We have been listening to the debate over birthright citizenship. Cecillia Wang with the ACLU is arguing. And you see There Samuel Alito, the conservative justice on the bench, is questioning her.

We also want to mention that President Trump, in a break with precedent, was there in the gallery during John Sauer, the U.S. solicitor general's arguments. He has since left, and he is now back at the White House.

Let's listen back in.

WANG: Other immigrants, which Wong Kim Ark refers to in the debate the framers referred to, would not have been citizens either, because if the only test is whether that U.S.-born child is considered a citizen by another country under their jus sanguinis laws, then no foreign national's children would be considered in citizenship.

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SAMUEL ALITO, U.S. SUPREME COURT ASSOCIATE JUSTICE: Well, all of -- in all of those cases, the parents could be naturalized, and then the children would be derivatively nationalized -- naturalized when the -- when the parents were naturalized.

Wong Kim Ark -- I'm sorry.

(CROSSTALK)

ALITO: Wong Kim Ark has a passage explaining how this court should treat dicta.

And it quotes something that John Marshall said. "It is well" -- this is quoting from Wong Kim Ark. "It is well to bear in mind the oft- quoted words of Chief Justice Marshall, it is a maxim not -- maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. "If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision."

So, does that fall within the what's good for the goose is good for the gander rule? That's how Wong Kim Ark treats what was said in the Slaughter-House Case -- Cases. Should we apply that same rule to Wong Kim Ark itself?

WANG: Wong Kim Ark tells you what to make of the Slaughter-House dicta. It was dicta. The issue of citizenship was not at play in Slaughter-House.

And in contrast, the parts of the holding, the parts of the decision that I alluded to are the controlling rule of decision. Again, we looked at English common law in construing the 14th Amendment.

JOHN ROBERTS, CHIEF JUSTICE OF THE U.S. SUPREME COURT: Thank you, counsel.

Justice Thomas? Anything further, Justice Alito?

ALITO: Well, just a couple more questions.

So, if those who framed and adopted and the 14th Amendment had wanted to limit the citizenship test to just those specific groups that you concede fall outside the birthright citizenship rule, why didn't they refer specifically to those groups?

Why didn't they adopt a general rule? They could have said all persons born or naturalized in the United States, excluding Indians not taxed and those ineligible under common law, are citizens of the United States and of the state wherein they reside. Or they could have said all persons born or naturalized in the United States, excluding Indians not taxed and the children of foreign ambassadors or foreign invaders, are citizens of the United States and of the state wherein they reside.

But they didn't do that. They adopted the general rule. So what's the explanation?

WANG: I would say the -- Wong Kim Ark tells us what the explanation is, that the framers of the 14th Amendment, after overriding President Johnson's veto, wanted to adopt a universal rule with a closed set of exceptions.

And they believed that subject to the jurisdiction of the United States did that. And that term does describe both the universal general rule and the common law exceptions, with the sole additional American exception for tribal Indians.

ALITO: Thank you.

ROBERTS: Justice Sotomayor?

SONIA SOTOMAYOR, U.S. SUPREME COURT ASSOCIATE JUSTICE: Ms. Wang, I don't -- I have not quite understood the solicitor general's argument that lawful domicile somehow changes the U.S.' dominion over a person or allegiance.

Even in Justice Alito's examples, if your parents are Iranian, if you get permanent -- lawful permanent residency here, that child still, by their laws, when it leaves the United States, must serve in the Iranian army, correct?

WANG: Well, I don't know the answer to that.

What I can tell you is that under Wong Kim Ark, the court says, we don't care about problems of dual nationality. We don't look to other countries' laws in construing our 14th Amendment.

SOTOMAYOR: Well, it was undisputed there that Wong Kim Ark's parents owed loyalties to China, correct?

WANG: Sure. Yes.

(CROSSTALK)

SOTOMAYOR: What I'm saying is, even if you become a permanent resident, you're not a U.S. citizen.

WANG: Correct. Right.

SOTOMAYOR: So your primary loyalty still remains with your citizenship country, wherever you came from.

WANG: That's right, Justice Sotomayor. I take your point now.

SOTOMAYOR: And you understand what I'm saying.

[11:50:00]

And during temporary -- whether it's lawful or unlawful, temporary presence in the United States, you are subject to the U.S. laws, correct?

WANG: That's right. The question that the 14th Amendment asks is whether the U.S.-born child is subject to U.S. jurisdiction when they're born.

SOTOMAYOR: Meaning, are they within the U.S. territory?

WANG: Exactly, other than people covered by that closed set of exceptions.

SOTOMAYOR: Thank you.

WANG: That's right. In other words, the government's rule, which really is looking at whether someone has a divided allegiance because they're a citizen of another country, would exclude the children of all foreign nationals. And that isn't what they're saying.

SOTOMAYOR: Exactly. So the only way that allegiance, lawful or unlawful, can -- has no

play in this question.

WANG: I would say that the relevance of allegiance is the relevance under the English common law rule that's embodied in the 14th Amendment. All persons born in the territory of the sovereign owe natural allegiance. Those...

(CROSSTALK)

SOTOMAYOR: Except for the limited -- three limited exceptions.

WANG: Precisely.

ROBERTS: Justice Kagan?

ELENA KAGAN, U.S. SUPREME COURT ASSOCIATE JUSTICE: I think I'd like to take you back to the first question that Justice Alito asked General Sauer, and it was this question of, what do we do if we think we have a new problem that didn't exist at the time of the 14th Amendment?

I don't think, actually, that the U.S. government argues the case this way, but let's put the U.S. government's arguments aside and just ask something like, well, everything that you're saying would suggest an answer to the question of people who -- the children of people who are temporarily in the U.S., but here lawfully.

Is there any way that there might be a different answer with respect to the children of people who are here unlawfully because of this new problem issue that Justice Alito has raised?

WANG: No, there is no difference. And, of course, the government's arguments as to people who are unauthorized immigrants in this country all runs through and hinges on their domicile requirement.

The first thing I would say in response is that, once again, it's crystal clear from Wong Kim Ark and from the debates that the framers of the 14th Amendment meant to have a universal common law rule of citizenship subject to the closed set of exceptions.

And we can't take the current administration's policy considerations into account to try to reengineer and radically reinterpret the original meaning of the 14th Amendment. The second point I would make is that, in fact, the framers did consider the concept and the actual problems of immigration that were coming up at that time.

In addition...

BLITZER: All right, we're going to continue our special coverage right after a very, very quick break.

We will be right back.

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[11:57:33]

BROWN: Welcome back.

Let's listen back into Supreme Court arguments over birthright citizenship.

WANG: ... the government urges you to without making the children of all foreign nationals noncitizens, and that's clearly not what the framers were doing.

BRETT KAVANAUGH, U.S. SUPREME COURT ASSOCIATE JUSTICE: Justice Alito and Justice Kagan raised an interpretive question that I think is important, which is, are the exceptions -- you have used the word closed many times -- frozen, or do we reason by analogy to the exceptions that existed based on things that were unforeseen at the time?

This comes up in the Second Amendment now, comes up in free speech law. And how do we think about whether it's possible that there could be an additional exception based on modern circumstances, reasoning by analogy, to the exceptions that exist?

I'm thinking in particular about the noncitizens unlawfully in the country, not the temporary part, but the noncitizens unlawfully in the country.

WANG: Sure.

KAVANAUGH: Could you reason by analogy? You have used the phrase the -- several times, I think, the fiction of extraterritoriality. And could that apply? And, if not, why not?

WANG: Sure.

So, here, I agree with Professor Whittington, who says that the government's position here is not positing a new application of the rule, but a challenge to the rule itself. And I think that's right.

We know that the 14th Amendment's rule does provide for a universal rule with a set of closed exceptions. Wong Kim Ark says so at least twice. It says in an earlier passage that the framers were not trying to introduce any new exceptions. To the contrary, they were trying to foreclose any caste-creating exceptions like the court had created in Dred Scott.

The second reason we know this is that the debates themselves had the framers saying, number one, we are doing -- we are declaring what is already the law in this country, at least for white Americans, and we are putting any further exceptions to birthright citizenship outside the reach of any future Congress. They were very concerned about that. That's the whole impetus for the citizenship clause.

And the third -- the third thing I would say is that -- that it would be contrary to the central purpose of the 14th Amendment's citizenship clause to admit new exceptions, for all those reasons. The entire history of the citizenship clause is -- is -- is driven by the notion that we don't want to have any other exceptions.