The administration’s case hinges on an argument that constitutional citizenship depends on “domicile,” which Solicitor General D. John Sauer defined as having lawful permanent resident status.
During approximately two hours of arguments, justices signaled disagreement with this definition, emphasizing that domicile traditionally refers to a person’s intent to make a permanent home rather than their immigration status.
Justice Neil Gorsuch questioned the relevance of lawfulness, noting that in 1868, when the 14th Amendment was adopted, there were few federal laws regulating migration to make such a requirement meaningful.
Justice Ketanji Brown Jackson also challenged the government’s position, stating the amendment was added to prevent future Congresses from affecting citizenship, a claim Sauer flatly rejected.
The administration faces a further doctrinal hurdle regarding whose domicile matters. While Sauer argued that historical sources do not distinguish between mothers and fathers, the executive order specifically targets children born to mothers without lawful status.
This position conflicts with the Justice Department’s reliance on Swiss jurist Emmerich de Vattel, whose The Law of Nations states that “children follow the condition of their fathers.”
The government must now convince the court to adopt its narrow definition of domicile and prioritize the mother’s status, despite the textual silence of the 14th Amendment on these points.
The court is expected to release its opinion no earlier than late June.