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By Dan Gooding
Associate News Editor
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Chief Supreme Court Justice John Roberts appeared skeptical Wednesday morning of one of the Trump administration's arguments on birthright citizenship.
As the court began hearing oral arguments on President Donald Trump's attempt to make changes to the right set out in the 14th Amendment, his solicitor general D. John Sauer said that birthright citizenship should only apply to those who have domicile residence in the U.S., meaning they live there rather than being a temporary or illegal immigrant.
"Reside means domicile in the Constitution, and we think that strongly supports our interpretation," Sauer said, with President Trump in the room.
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That comment prompted the chief justice, an appointee of George W. Bush, to question who that applied to.
"You obviously put a lot of weight on subject 'to the jurisdiction thereof,' but the examples you give to support that strike me as very quirky," Roberts told Sauer. "You know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples."
Trump, who made history attending the hearing on Wednesday, wants to limit who is eligible for birthright citizenship, saying the pathway has been long abused. Trump is the first sitting president to attend Supreme Court oral arguments, according to a resident historian at the Supreme Court Historical Society.
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A Debate Over Domicile
Roberts' questioning over the domicile argument was followed by his fellow justices, liberal and conservative, questioning Sauer and others on the matter on Wednesday morning, including to which government an individual owes “allegiance.”
Sauer began by noting that the citizenship clause “was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children, whose allegiance to the United States had been established by generations of domicile here.”
He argued that this meant it did not “grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance.”
The debate gets to the heart of the birthright citizenship debate, with the Trump administration and others advocating for change, arguing that only those who are born to U.S. citizens or legal permanent residents to be eligible for American citizenship.
Later, ACLU National Legal Director Cecillia Wang, arguing against the Trump executive order, was questioned by the justices with Elena Kagan asking why "domicile" was "sprinkled" throughout the Supreme Court's 1898 decision which affirmed that Wong Kim Ark, born in San Francisco to Chinese parents, was a U.S. citizen—the same decision that established the precedent that anyone born in the U.S. is automatically a citizen.
Wang said that the case did not rely on domicile, but instead on where the child had been born. Justice Samuel Alito responded if that was the case, why did the Supreme Court at the time refer to domicile throughout its opinion if it did not matter.
"Wong Kim Ark says six times, in the first parts of the opinion, as well as on the page the government focuses on, that domicile is not relevant," Wang said.
Justice Neil Gorsuch said cases after this still left the issue up for debate. Wang argued that multiple cases affirmed that domicile was not relevant when it came to birthright citizenship, and that at the time in which these decisions were made, there was heavy bias against immigrants from China.
Justices asked about so-called birth tourism, where visitors are able to come to the U.S., give birth to an American citizen, before returning home. Sauer said it was difficult to know for sure how common this was. Data on birthright citizenship has been difficult to track.
Justices Question Government's Position
Liberal Justice Ketanji Brown Jackson asked Sauer about the practicalities of enforcing Trump's planned changes to birthright citizenship, if immigration status matters.
“Are you suggesting that when a baby is born people have to have documents? Present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?” she asked the solicitor general.
He appeared to suggest this would be tackled by checking the computer system giving out Social Security numbers, which could show the parents' immigration status.
Alito asked Sauer about the humanitarian issue of people who had been in the U.S. for a long time, were “subject to removal” but in “their minds” had made the U.S. their permanent home. He said that immigration laws in the U.S. had been “ineffectively and in some cases unenthusiastically” enforced over the years.
Sauer argued that the U.S. was an outlier compared to "modern nations," pointing to Europe where conditions largely apply to birthright citizenship.
What Happens Next
Trump left the court after just over an hour, with oral arguments continuing. The court is not expected to make a decision for several months.
This article contains reporting by The Associated Press.
Update 04/01/26, 11:51 a.m. ET: This article was updated with additional information.
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