US Supreme Court leans toward delivering another blow to Trump’s immigration policy

The U.S. Supreme Court is reviewing the legal arguments presented by both sides in Wednesday’s hearing on the birthright citizenship case. The nine justices — with a conservative majority of six to three — will decide on the legality of an executive order issued by Donald Trump that denies citizenship to children born in the United States to undocumented immigrant parents or temporary visitors, such as those on student or work visas.

The majority of the court has expressed skepticism about the legality of the presidential order, even though Trump attended the hearing — an unprecedented event for a sitting president. The three liberal justices and at least three conservatives, including Chief Justice John Roberts, along with Brett Kavanaugh and Neil Gorsuch, are inclined to deliver another legal setback to the White House. The final decision is expected in late June or early July.

Following the statements and comments made at the hearing, the judges are debating between a brief ruling, based solely on the Immigration Act of 1952, or a revision of the constitutional text to safeguard the interpretation of the Citizenship Clause of the 14th Amendment, which grants citizenship to any person “born or naturalized in the United States, and subject to the jurisdiction thereof.”

The Wong Kim Ark case

During the oral arguments, much of the case presented by Solicitor General John Sauer and by the plaintiffs’ representative, Cecilia Wang, an attorney with the American Civil Liberties Union (ACLU), revolved around United States v. Wong Kim Ark, a late 19th-century case involving a cook of Chinese descent. U.S. immigration authorities denied Ark entry to the country when he tried to return to his birthplace after visiting relatives in China. In 1898, the Supreme Court granted citizenship to Ark, whose parents, immigrants of Chinese origin, were legal residents of San Francisco but did not hold citizenship.

The concept of the parents’ “domiciled status” was a central point of contention between the parties and the judges. The White House argues that the courts misinterpreted the constitutional amendment applied in the Ark case. Had their interpretation been followed, the Chinese cook would never have obtained citizenship because his parents, although domiciled, lacked proper documentation.

Justice Kavanaugh, appointed by Trump during his first term, hinted at two possible solutions to the case through his questions and comments, revealing the court’s general rejection of the Trump administration’s position. On the one hand, he suggested simply accepting the broad interpretation of the 14th Amendment used in the 1898 case. This is the interpretation that most courts have followed to date and the one the plaintiffs are advocating.

Therefore, the justice rhetorically questioned why the White House had not sought to overturn the Ark ruling, which is a landmark decision on birthright citizenship. “It could simply be a brief opinion, couldn’t it?” Kavanaugh asked Cecilia Wang, who nodded without hesitation. The ACLU attorney later described the White House’s decision not to seek a reversal of the Ark ruling as a “fatal concession.”

Roberts, Kavanaugh and Gorsuch, against

Kavanaugh asked Wang why the court needed to decide whether the executive order violated the Citizenship Clause if it could resolve the case based solely on the Immigration and Nationality Act, citing the court’s general presumption that it will avoid deciding constitutional issues if possible, as Amy Howe explains on the Scotus Blog.

The other way the Supreme Court could proceed to reject the presidential order, according to the 62-year-old judge, would be to focus on the Immigration Act of 1952 and avoid entering into a debate about its constitutional interpretation. That federal law also guarantees birthright citizenship on the same terms as the amendment.

Wang admitted to the judges that she was “happy to win in either case,” but expressed her preference that the court uphold the interpretation it made in 1898 in United States v. Wong Kim Ark, which she described as “a landmark decision on the definition of national citizenship in this country.”

Interpreting the 14th Amendment

Thomas Berry, an analyst at the Robert A. Levy Center for Constitutional Studies, explained that the “oral argument focused on the original public meaning of the Fourteenth Amendment’s text, which is the correct approach.” In a post on X, he added: “And a clear majority of the Justices were unconvinced by the government’s argument that this meaning has been misunderstood for over 150 years.”

Berry, a member of the conservative Cato Institute think tank, concluded: “Based on today’s argument, it seems that the most likely outcome is a simple opinion reaffirming that the Court meant what it said in Wong Kim Ark: those born on U.S. soil are U.S. citizens, with very rare exceptions for those who are to some extent exempt from following U.S. law. I expect the challengers to the President’s order will receive somewhere between 6 and 8 votes in their favor.”

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