Justice Kavanaugh hammers Trump’s lawyer, setting the tone.
Oral Arguments
I just finished listening to a replay of Supreme Court oral arguments on birthright citizenship.
Solicitor General D. John Sauer argued on behalf of the Trump administration, Sauer faced skepticism from conservative and liberal justices alike.
Justice Alito went out of his way a couple of time to attempt to throw Sauer a lifeline. But that was all the sympathy Sauer received.
Gorsuch, Barret, and even Kavanaugh hammered Sauer. Thomas was skeptical. Kagan blasted Sauer on “revisionist history”.
Spotlight Gorsuch
Spotlight Barrett
Barrett hammered council on the wording of the 14th amendment. She noted the amendment did not focus on the nationality of the parent but on where the child was born.
“How do you know at birth whether one has the intent to stay or not?” she asked Sauer.
Spotlight Roberts
When Sauer tried to argue that “birth tourism“ didn’t exist at the time the Fourteenth Amendment’s Citizenship Clause was written, Chief Justice John Roberts replied “It’s a new world. It’s the same Constitution.“
Spotlight Kavanaugh
I bookmarked Kavanaugh at 44:45.
“If you are in congress in 1940, 1952, and you want to limit the scope of Wong Kim Ark, or eliminate ambiguity, why do you repeat the same language rather than choosing something different? For example you could use the language from the Civil Rights Act of 1866 or some similar formulation if your idea in 1940 and 1952 was to not have ambiguity or not have an overly broad scope?”
Sauer had no good answers to this line of questioning by multiple justices.
It’s remarkable revisionist history of intent as Kagan noted.
Two Possible Reflections on Oral Arguments
- It’s not over until it’s over. Blah blah blah blah.
- It’s over.
It’s Over
You can pretend that it’s not over, but it’s over. I expect no less that 7-2 against Trump and more likely 8-1 or 9-0.
Chief Justice Roberts will push hard for a unanimous ruling and he may get it.
Trump attended the oral arguments today hoping pressure the court. It was a foolish effort.
You can piss and moan about the pending ruling, or what you think should be the case. But there is a right way and a wrong way to change the constitution.
And that way is not by executive order, your beliefs, or mine.
I have respect for the Constitution. So should you. It’s clear Trump doesn’t.
Revisionist History Analysis
For an understanding of the massive revisionist history that Sauer asked the Court to swallow, please see my February 20, 2025 post Appeals Court Rejects Trump’s Birthright Citizenship Executive Order
The Appeals Court ruling was 95 percent likely, so this is no shocker. But let’s review the case.
Also see What Were the US Senators Thinking When They Debated the 14th Amendment?
The question is not realistically subject to logical debate.
Senator Howard
The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed that they be citizens.
I voted for the proposition that the children of all parentage whatever, born in California, should be regarded as citizens of the United States, entitled to equal right of other senators of the United States.
We are entirely ready to accept the provision proposed in this amendment, that children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.
Can anyone in good faith sincerely tell me the intent of birthright citizenship was not perfectly clear in 1866?
The Congressional debate from the time did surface in today’s oral arguments. This is what Kagan meant by revisionist history.
Supreme Court Strikes Trump’s Reciprocal Tariffs In 6-3 Vote
On February 20, 2026 I reported Supreme Court Strikes Trump’s Reciprocal Tariffs In 6-3 Vote (I Told You So)
Forgive me for bragging, but I got every justice correct.
Expect more major decisions to go against Trump. New cases are pending.
The Court is increasingly standing up to Trump. This shows that the problem is not an activist Court but a preposterously activist Trump.
Addendum – A Serious Question
Trump on Birthright Citizenship
I suppose the proper reply is “We are the only nation stupid enough to elect someone like Trump, not once, but twice.”
Birthright citizenship will likely stand because the 14th Amendment is clear. But the real issue is that amending the Constitution has become practically impossible. So instead of updating the rules, the system bends them — through courts, executive action, and ever more strained interpretation.
So increasingly the US looks paralysed. (only 1 amendment in 55 years)
What’s striking is how uniquely American this is. The US is both more religious than Europe and more constitutionally rigid — and the two seem connected. When foundational texts are treated as untouchable, interpretation replaces adaptation, and debate becomes increasingly dogmatic.
Europe, for all its flaws, has generally shown a greater willingness to update its political frameworks as circumstances change. The US, by contrast, risks locking itself into 18th- and 19th-century assumptions while the world moves on.
Yes the US does a great job of creating world class companies, but it does a truly terrible job of social cohesion.
I wonder if the members of the court felt honored to be blessed by the company of the Chief Pedophile of the United States? Are children allowed to be present for oral arguments? That would have been an obvious interest of the Chief Pedophile in his younger days but his tiny little pecker is no longer functioning. Thank God.
It is terrible policy. Someone slips across the border and has a baby, who automatically becomes a US citizen. No!
Only have to persuade 38 states to amend the Constitution. Get on it Citizen!
Yes, that is exactly what our forefathers wanted.
Those arguing to end it also wish to end it for anyone who is a dual citizen or had children while a dual citizen. And of course, were this case to go their way how can the EO only limit to future cases? That is inequitable treatment under law, everyone now must prove that their parents were legal
“I suppose the proper reply is “We are the only nation stupid enough to elect someone like Trump, not once, but twice.””
You are forgetting that Biden flooded the country with over 12 million illegals, what about the people stupid enough to vote for Biden. That one action was worse than all the bad policy that Trump has attempted. I would rather have Trump attempt to end birthright citizenship than do what he is opponent would have done; which would not have been to completely shut down the border, nor what his predecessor did.
Looks like GOP congress will not fund ICE.
https://www.nbcnews.com/politics/rcna266286
Johnson and Thune heavily implied that it would be for the Senate to, once again, pass a bill it approved unanimously last week, which it could try to do as early as Thursday.
It would fund all of DHS except ICE and Customs and Border Protection, which Democrats won’t agree to fund without reforms to immigration enforcement operations. Those two agencies already have separate funding.
How do you like them apples?
Why would having 12 million people enter the country over a 4 year period be so awful? Historically, the country had about 2 million enter every year going back decades. And COVID caused a massive reduction in 2020 and 2021. So there was a big build up of people waiting. If you added Trump 1 and Biden stats together, there were only about 1.5 million more people entering the country over an 8 year period than the norm. Less than a 0,5% increase in the population.
Why are you arguing with racists?
Hope Trump gets bitch-slapped 9-0 on this one.
He definitely needs to learn about the how the first Amendment applies to his theocratic wars!
I believe that all the countries in the New World have citizenship by birth. If, among these, the US are the stupid one, so be it.
Though I wouldn’t mind if the constitution were amended to do so conditioned to the status of the parents and their consent. If I were a tourist, I’d hate to have a Usonian tax slave by accident.
Any ruling against taco is a good one. What it is tell you when taco picked April ‘fools’ to lay out some more of his verbal vomit and lies.
So the words “and subject to the jurisdiction thereof” have no meaning?
There is what you want it to mean and what SCOTUS says it means. Once the decision is made you can’t do anything about it.
They do. They exclude children Born to foreign diplomats i believe. Other than that this is a a heavily trump-leaning court. If they say this proposal is unconstitutional, rest assured that it really is.
In what way is an illegal alien or a Chinese tourist “subject to the jurisdiction” of the US in a way that a foreign diplomat is not? Like the diplomat, they are subject to the jurisdiction of their home country, except to the extent they commit a crime in the US.
Diplomats have diplomatic immunity.
everyone else in US territory is subjected to the jurisdiction of the USA.
This has been argued over a century and the matter is more than settled. Only racist moron keep pushing this discussion.
This is horrible. It means, just as the result of the Civil War did, that ultimately you can’t have a civilized community any more. Call all the names you want.
You’ve been issued a turkey award for your comment.
You don’t need a name, you’re simply wrong.
How does birthright citizenship prevent a community from being civilised? I don’t follow that line of thought
“It means, just as the result of the Civil War did…” (emphasis mine)
So, when are you going to be put to work on a plantation?
He showed up for the hearing, shat his pants, and left.
All in a day’s work.
“Sauer had no good answers to this line of questioning by multiple justices.”
Bigots, racists, misogynist and their like never have any good answers to any logical or rational questions. It’s why they are ridiculed for being dumb, dumbness and racism go hand in hand. Then they get mad for being called racists and dumb. Lol.
I am awarding 2-star Mishelin award on this post subject to a 3-star upgrade upon final ruling for calling it!
I want another Mishelin for the addendum I just added.
Granted. 3-Star Mishelin award bestowed on this post.
Cushy gig, handing out these stars, if you can get it. You must know someone… teehee :))
I also hand out turkey awards for comments.
Not enough of them. But don’t go overboard. Do consider mentioning the number of turkey feathers in the award.
Does Israel allow birth tourism?
Does Israel have birthright citizenship?
Answer here –> https://en.wikipedia.org/wiki/Israeli_citizenship_law
Do not compare yourself to others
lest ye become vain or bitter
The Desiderata
Who cares? We aren’t Israel.
True, we spend more on their citizens than ours… They have free defense, free higher education, free healthcare and we pay for it!
NATO pays and gets the shaft!
Seems to me that the only branch of government that is doing its job is the Judicial Branch.
Sad.
Which is why Trump always says Democratic lawmakers and judges are the enemies of the people.
Some of the Judicial Branch are doing their job correctly others are mentally ill MAGA cultists.
I was kind of looking forward to Marco Rubio being deported to Cuba.
Mish is developing a pretty good track record of forecasting SCOTUS outcomes… Just sayin’.
Like much of the Constitution, the 14th Amendment is poorly drafted. It uses terminology that was not in common use and does nothing to define its terms. I cannot imagine the drafters believed that U.S. citizenship could, or would, be marketed as a tourist option to pregnant women in China. That’s absurd.
I am an immigration maximalist. I believe the U.S. benefits, economically and culturally, from immigration. I also believe Trump, on this issue, had a case to make. But just like so much of what he does, he has made it in precisely the wrong way.
Had he gone to Congress, fashioned and supported a compromise, I think he could have gotten the votes of the MAGA right, and many of the socialist left, to limit this practice and restrict immigration more generally.
Instead, he’s hardened opposition to this or any reforms.
A statute, passed and signed into law would almost certainly passed Supreme Court review.
William,
The issue with it being poorly drafted can be applied to lots of bits of the US Constitution e.g. the 2nd amendment or even in the text e.g. the 3/5 clause.
As Mish has pointed out the debate in 1866 considered this and came down in favour of birthright citizenship.
I personally believe that the US is better for having the 2nd / 13th / 14th /15th & even the 25th amendments to the US constitution
“A statute, passed and signed into law would almost certainly passed Supreme Court review.”
False and obviously so.
To change the Constitution requires a Constitutional Amendment, There is no other way.
Your proposal would never have made it out of the Senate in the first place, but assume it did. 6-3 against in the SC and more likely 7-2.
Why?
Exact same reasons.
Or perhaps they would have told you that ~1,000 women actually doing that has zero bearing on the health of the nation or the rights of its people as dictated by God almighty. The constitution isn’t for compromising on, it is a set of plainly written (have you seriously read the amendment in question?) rights that are non-negotiable. I will not give up my guns, my free speech, or my right to live where I was born in a “compromise” with the uniparty. Why? Because these are my inalienable rights. The constitution doesn’t hinge on the state granting you these rights nor does it derive authority from the state; They are simply yours by virtue of being born and should belong to all people in the world. That is what the founding fathers believed.
Can Congress outlaw birth tourism? Only children born to permanent residents perhaps? Just asking in theory since until we get a viable opposition party to take on the Uniparty I expect nothing from our bought and paid for “representatives”.
No.
Obviously. At least that way.
I suppose Congress could pass a law prohibiting pregnant women from entering the US but how would you enforce that? Besides that would never pass Congress,
“All persons born in the US”
what part of that is less than 100% crystal clear?
I’m positive Trump has never read the Constitution and only has a passing interest in it.
you could have ended your sentence after the sixth word.
I am more positive he does not give a damn what it says, even if he did.
You misspelled pissing interest
WAIT!!!!! Are you sure?????
I mean to READ the Constitution …. Doesn’t that require one be able to read??????