The case centers on President Trump's executive order challenging birthright citizenship for children of undocumented immigrants, with constitutional scholars Akhil and Vikram Amar analyzing how the justices' oral argument questions aligned with their earlier analysis. The dispute involves whether the phrase 'subject to the jurisdiction thereof' in the 14th Amendment's Citizenship Clause requires parental allegiance or domicile, as Trump's legal team argues, or whether birth on U.S. soil is sufficient for citizenship regardless of parents' immigration status.
Multiple justices pressed Solicitor General Sauer on the absence of parental requirements in the constitutional text. Justice Elena Kagan went 'straight for the textual jugular,' asking Sauer 'where does this principle come from, allegiance, domicile? ... [T]he text of the clause, I think, does not support you.' Justice Neil Gorsuch similarly noted the constitutional focus 'on the child, not on the parents,' observing that 'in none of the debates do we have parents discussed' and 'you don't see domicile mentioned.'
Chief Justice Roberts delivered perhaps the most memorable exchange when questioning Sauer about so-called 'birth tourism.' After Sauer provided statistics about the practice, Roberts asked pointedly: 'Having said all that, you do agree that that has no impact on the legal analysis before us?' When Sauer tried to argue they were 'in a new world now,' Roberts administered what the Amar brothers called 'the coup de grace': 'Well, it's a new world. It's the same Constitution.'
Justice Brett Kavanaugh highlighted key differences between the 1866 Civil Rights Act and the 14th Amendment, noting 'those texts are on their face different' and suggesting Congress's 1940 and 1952 reenactments of citizenship language, after the Supreme Court's 1898 Wong Kim Ark decision, showed legislative acceptance of broad birthright citizenship. Justice Amy Coney Barrett explored practical problems with Sauer's approach, asking about American-born foundlings and noting 'you're not going to know at the time of birth for some people whether they [the parents] have the intent to stay or not.'
Justice Ketanji Brown Jackson pressed the textual argument further, asking 'why [don't we] see in the 14th Amendment anything about parental allegiance[?]' She noted 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.' Justice Sonia Sotomayor invoked the 1957 Hintopoulos case, which called an illegal alien's child 'of course, an American citizen by birth,' and warned that accepting Trump's logic could lead to retroactive citizenship revocation.
Justice Samuel Alito created what the Amars called a 'trap' for ACLU attorney Cecillia Wang by asking whether the 14th Amendment and 1866 Civil Rights Act had identical citizenship tests. When Wang initially agreed, Alito pressed why the focus shouldn't be on the arguably more restrictive 1866 language. However, Justice Kavanaugh helped 'nimbly sidestep this inter-textual trap' by emphasizing the textual differences between the enactments.
The case represents a fundamental challenge to 150 years of precedent establishing birthright citizenship. As Justice Kagan asked Sauer, what 'magnitude of evidence' would be needed 'to accept this revisionist theory and ... change what I think people have thought the rule was for more than a century?' The Court's eventual decision, expected in late June, could reshape American citizenship law and affect millions of U.S.-born children of undocumented immigrants.