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Justices question administration's 'quirky' arguments in birthright citizenship case · THE DAILY BRIEF

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  Speaker 1: We've just been listening to the Supreme Court hearing on
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  Speaker 1: President Trump's executive order on birthright citizenship. Now, that order
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  Speaker 1: would limit birthright citizenship to children of US citizens or
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  Speaker 1: legal permanent residents. The Fourteenth Amendment and federal law say
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  Speaker 1: all persons born or naturalized in the US and subject
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  Speaker 1: to the jurisdiction thereof, are citizens. The ACLU argues that
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  Speaker 1: that applies to children born on US soil, regardless of
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  Speaker 1: their parents' legal status. But the Trump administration says children
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  Speaker 1: of illegal or temporary residents should not be considered subject
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  Speaker 1: to the jurisdiction of the US and thus not included
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  Speaker 1: in the Fourteenth Amendment. The President was there in person,
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  Speaker 1: also making him the first sitting president to ever attend
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  Speaker 1: a Supreme Court hearing. Let's bring an ABC's legal contributor
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  Speaker 1: Kim Whaley and ABC's Peter Harlambus for more on these
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  Speaker 1: oral arguments. How do you both a really eventful day
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  Speaker 1: in the court today, so, Kim, several justices seem to
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  Speaker 1: cast doubt on the Trump administration's interpretation of that clause
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  Speaker 1: in the Fourteenth Amendment subject to the jurisdiction thereof. What
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  Speaker 1: did you make of the justices questions and the Solicitor
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  Speaker 1: General's responses to their challenges.
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  Speaker 2: With the exception perhaps of Justice Aledo.
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  Speaker 3: General Sauer had a very difficult time making his argument. Essentially,
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  Speaker 3: the clean reading of that is that within the jurisdiction
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  Speaker 3: means you were born within the territory of the United States,
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  Speaker 3: and that has been the reading since eighteen ninety eight.
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  Speaker 3: And in that case Wankmark, the court applied common law
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  Speaker 3: English law, which is a lot of what our law
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  Speaker 3: is based on the English law, and it's consistent with that,
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  Speaker 3: so very clean, easy reading, General Sower, you have to
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  Speaker 3: take multiple steps across the pond, lots of rocks right
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  Speaker 3: to get to his theory. He's saying, jurisdiction actually doesn't
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  Speaker 3: mean territory, it means allegiance. And how do you define allegiance.
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  Speaker 3: It's not by loyalty, it's by domicile. How do you
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  Speaker 3: define domicile? It's lawful residence plus and.
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  Speaker 2: Intent to remain.
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  Speaker 3: But you don't actually need to look into somebody's intent.
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  Speaker 3: You look at lawful residents. Bingo, Now you're in immigration
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  Speaker 3: and whether you're lawfully in the country. It's just too
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  Speaker 3: many steps removed, and even the more conservative justices with
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  Speaker 3: the President of the United States in the courtroom for
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  Speaker 3: part of it, We're not willing to go that far
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  Speaker 3: and stretch the logic to the place where General Sauer
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  Speaker 3: was trying to take it.
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  Speaker 1: Peter, I want to play in exchange also between Justice
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  Speaker 1: Amy Coney Barrett and the Solicitor General. Let's listen to that.
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  Speaker 4: There are marginal cases that one I think has the
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  Speaker 4: benefit of being addressed in fourteen oh one f where
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  Speaker 4: it talks about.
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  Speaker 3: Yeah, yeah, yeah, but what about the Constitution.
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  Speaker 4: Under the Constitution, it's it's domina I mean, look, domicile
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  Speaker 4: is a constitutional standard in all kinds of other situations.
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  Speaker 5: Well, and it's hard first jurisdiction, personal jurisdict.
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  Speaker 1: Sorry, I can't remember a time that justice was so
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  Speaker 1: blinna say yeah, yeah, yeah, but what about the Constitution, Peter.
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  Speaker 1: We knew the more left leaning judges were going to
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  Speaker 1: be a hard sell here, but we were surprised to
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  Speaker 1: hear the level of pushback from some of the more
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  Speaker 1: conservative justices.
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  Speaker 6: I mean, it was fascinating to see how frosty this
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  Speaker 6: reception was from the conservative majority. I mean, looking at
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  Speaker 6: my notes here, Kavanaugh, Roberts Gorsich, Barrett, all of them
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  Speaker 6: signaled kind of a deep skepticism to this argument, and
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  Speaker 6: at times they kind of trashed on the argument. Roberts said,
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  Speaker 6: the Trump administration is relying on quote tiny and idiosyncratic ideas.
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  Speaker 6: Gorsich suggested they were relying on quote Roman law. Kagan,
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  Speaker 6: part of the liberals noted that they were relying on
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  Speaker 6: obscure sources, all of them basically suggesting that this is
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  Speaker 6: a fringe argument that overall they seem unlikely to accept.
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  Speaker 1: What did you make of their reception to the ACLUS arguments.
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  Speaker 6: You know, certainly that was much less of an uphill battle.
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  Speaker 6: They questioned this ACLU attorney a lot about the really
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  Speaker 6: the main Supreme Court president here Wang kimark and why
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  Speaker 6: that case mentioned this idea of domicile, this idea that
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  Speaker 6: the individual in that case was living in San Francisco
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  Speaker 6: for a period of time, and what's interesting. Justice Jackson
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  Speaker 6: appeared to answer that question for the Trump administry in
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  Speaker 6: a way, basically saying that the mention of domicile in
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  Speaker 6: that opinion might have been a political thing by the
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  Speaker 6: Court more than a century ago, acknowledging the fact that
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  Speaker 6: there was so much anti Chinese sentiment, putting mention of
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  Speaker 6: domicile into that opinion to make it more receptive and
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  Speaker 6: easier for the American public to understand and receive.
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  Speaker 1: And in both sides reference the wonkim Our case. He
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  Speaker 1: was deemed to be a citizen under the fourteenth Amendment
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  Speaker 1: despite being born to Chinese parents. How do you see
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  Speaker 1: that playing into the justice's decision here?
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  Speaker 3: Well, the way the law works, and we saw this
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  Speaker 3: for example with Roe versus Wade and Dobbs a big
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  Speaker 3: deal reversing precedent. The precedent stands unless there's an excellent,
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  Speaker 3: really really strong argument to overrule it, in particular that
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  Speaker 3: it was wrong to begin with, and so the government
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  Speaker 3: has a very high hurdle to overcome.
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  Speaker 2: But what was really strange was that General Sauer was trying.
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  Speaker 3: To persuade the justices that they could just accept his
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  Speaker 3: completely alternative reading of that case from eighteen ninety eight.
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  Speaker 3: That's a very odd argument for a lawyer to make
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  Speaker 3: that the government wasn't willing to acknowledge. What they're asking
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  Speaker 3: the court to do is to reverse that ancient precedent,
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  Speaker 3: and that alone might make it very very hard for
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  Speaker 3: the court to find for the Trump administration in this case.
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  Speaker 1: And Peter, the word domicile kept coming up. We actually
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  Speaker 1: heard it in that exchange with Amy Coney, Barrett and
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  Speaker 1: Sour Because the wonkim Our case specified that his parents
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  Speaker 1: had a permanent residence and domicile in the United States.
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  Speaker 1: The justices seem to differ on how relevant that is here.
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  Speaker 6: Yeah, I guess one thing that did unite them at
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  Speaker 6: least is the fact that so many of them were
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  Speaker 6: interested in it. By my account, at least five of
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  Speaker 6: the justices asked direct questions about this issue of domicile.
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  Speaker 6: And ultimately the argument the acl you make was making
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  Speaker 6: is at the end of the day, domicile was not
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  Speaker 6: a defining characteristic of that case. That at the end
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  Speaker 6: of the day, one can Mark's right to birthright citizenship
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  Speaker 6: was affirmed because he was born here under US parents.
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  Speaker 6: The question of whether or not his parents lived here,
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  Speaker 6: whether he lived here long enough, was kind of secondary
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  Speaker 6: to the point. And when you look at the application
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  Speaker 6: of the law over the last century, the US government
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  Speaker 6: generally has agreed in that interpretation, coming to this conclusion
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  Speaker 6: that anyone born in the US soil is entitled to
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  Speaker 6: birthright citizenship Kim.
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  Speaker 1: Sower also brought up birth tourism, the idea that foreign
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  Speaker 1: nationals come to the US just to have a child
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  Speaker 1: here who can become a citizen. But that sounds like
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  Speaker 1: more of a legislative argument, something you would argue before Congress.
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  Speaker 1: Why make that in court? What's his legal strategy there?
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  Speaker 3: I think it demonstrates that he has a really difficult
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  Speaker 3: time making actual legal arguments based on the law, and
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  Speaker 3: so he's sort of nodding to this issue, which I
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  Speaker 3: think is really at the heart of the argument that
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  Speaker 3: the problem that we're facing in twenty twenty six is
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  Speaker 3: illegal immigration. That wasn't an issue at the time of
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  Speaker 3: ratification of the fourteenth Amendment or the original Civil.
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  Speaker 2: Rights Act, which the Court talked about a lot, because
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  Speaker 2: they kind of went hand in.
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  Speaker 3: Hand, And so he was trying to persuade the justices
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  Speaker 3: that almost a more progressive argument. Listen, it's a constitution
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  Speaker 3: evolves over time, and we need to update the reading
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  Speaker 3: of birthright citizenship to twenty twenty six. And this is
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  Speaker 3: just not the court to make that argument for because
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  Speaker 3: it's a conservative court that purports to stick.
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  Speaker 2: With the plain language doesn't always do it.
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  Speaker 3: But the plane language, history, tradition, the original intent, and
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  Speaker 3: all of this precedent.
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  Speaker 2: So I think it fell on pretty deaf years.
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  Speaker 1: And can I want to play an exchange for you
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  Speaker 1: between Justice Sonya Soda, Mayor and the Solicitor General about
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  Speaker 1: how the government's arguments would change the way the fourteenth
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  Speaker 1: Amendment is applied.
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  Speaker 5: I'm asking whether the logic of your theory would permit
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  Speaker 5: what happened after the Court's decision in trind that the
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  Speaker 5: government could move to unnaturalize people who were born here
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  Speaker 5: of illegal residents.
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  Speaker 4: No, we believe the court should do what it did
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  Speaker 4: in Sessions against Morales Santana, were there was such a
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  Speaker 4: ruling that would have deprived people who are already citizens
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  Speaker 4: a citizenship, and the courts that this supplies perspectively only,
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  Speaker 4: and we think that's the appellinic course here, but.
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  Speaker 5: That's not what we did in Trend.
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  Speaker 4: We think the Sessions provides the proper course here, and
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  Speaker 4: that's what we're asking. We are not asking for any
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  Speaker 4: retroactive relief.
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  Speaker 1: So can the government here is being very clear that
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  Speaker 1: they are asking for this to apply to children born
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  Speaker 1: in the US in the future, not current citizens by birthright.
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  Speaker 1: How easy is it for the court to actually limit
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  Speaker 1: that and prevent this from becoming more broad if they
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  Speaker 1: do uphold this order.
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  Speaker 2: So there are two issues here.
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  Speaker 3: One is what's the proper reading of the Constitution, And
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  Speaker 3: as you indicate, the other one is practically and pragmatically,
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  Speaker 3: how does this work? And on the one hand, is
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  Speaker 3: in that clip the Justice Soda Borrow was concerned about
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  Speaker 3: this idea. Well, it's only prospective only for future children born.
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  Speaker 2: In the United States.
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  Speaker 3: But that's tricky because generally that's not how the Constitution works.
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  Speaker 2: It's either constitutional or unconstitutional.
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  Speaker 3: And then I think it was Justice Jackson that said, well,
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  Speaker 3: how do you actually implement this in the hospital?
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  Speaker 2: There were questions about is it the.
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  Speaker 3: Dad or the mom who has to be a legal resident?
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  Speaker 3: And the government said, well, it's the mom's that's not
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  Speaker 3: in the constitution. Well, if it's the moms who decides that,
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  Speaker 3: And General Sower had a problem with that and basically
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  Speaker 3: admitted that for some newborns you might have to get
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  Speaker 3: a judge involved and actually have evidence and a mini
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  Speaker 3: trial to decide if that person constitutes domiciled within the
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  Speaker 3: meaning of President Trump's new definition.
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  Speaker 1: All right, Kim Waey Peter har Alambus. Thank you both.
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  Speaker 1: Thank you