On Wednesday, April 1, the Supreme Court heard oral arguments in Trump v Barbara, one of the most significant legal battles for our country over who gets to be an American citizen.

Arguing for the Trump Administration was Solicitor General D. John Sauer. Arguing for the American Civil Liberties Union (ACLU) was the organization’s national legal director, Cecillia Wang, the U.S.-born daughter of immigrants from Taiwan.

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At issue is… Should the children of illegal aliens and temporary visa holders born in the United States automatically be entitled to U.S. citizenship under the 14^th Amendment?

President Trump says no and issued an Executive Order on the first day of his second term, excluding children born in the U.S. under these circumstances. His argument is that these children and their parents are not “subject to the jurisdiction” of the United States.

The ACLU says the president has no right to rewrite the Constitution by Executive Order, and any child born in the U.S. is entitled to birthright citizenship. The only legal exceptions are children born to foreign diplomats or children born to foreign invaders.

For over two hours, the lawyers were grilled by the Supreme Court Justices. President Trump feels so strongly about this issue that for the first time in history, a sitting president attended oral arguments at the Supreme Court.

Opening Remarks

Solicitor General Saur, in his opening, referred to the citizenship clause of the 14^th Amendment by saying it 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. It did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance.”

The 14^th Amendment, he argued, was never intended to grant universal citizenship to the children of people who broke the law by coming to America legally or fraudulently.

ACLU Attorney Wang argued in defense of broad birthright citizenship and pointed to the long tradition of birthright citizenship. “Ask any American what our citizenship rule is, and they’ll tell you, everyone born here is a citizen,” Wang said during her opening statement.

Questions Raised by the Justices

Here are a few highlights of the questions and discussions at oral argument:

What does the phrase “subject to jurisdiction” mean?

Solicitor General Sauer argued that jurisdiction encompasses allegiance. Justice Kagan questioned his sources for claiming the point. He countered by pointing to several 19th-century sources describing jurisdiction as not owing allegiance to anybody else, including Senator John Bingham of Ohio, the author of the 14th Amendment, who said that “within the jurisdiction of the United States, a parent must not owe allegiance to any foreign sovereignty.”

Senator Jacob Howard of Michigan, who argued to include the jurisdiction phrase in the 14^th Amendment, declared, “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers…”

Senator Reverdy Johnson of Maryland said of the 14^th Amendment at the time of the vote, “I know of no way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”

The Civil Rights Act of 1866 gave citizenship to “all persons born in the United States and not subject to any foreign power.” The statute’s author, Republican Sen. Lyman Trumbull of Illinois, clearly stated what was meant by jurisdiction. “What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”

Mr. Sauer argued that no one who helped craft the amendment argued that citizenship should be given to the children of illegal immigrants.

But Attorney Wang argued the legal focus should be on the newborn, not the parent, whether the U.S.-born child is subject to U.S. jurisdiction when they’re born. She pointed to the English common law of “right of soil” that “virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen.”

Do federal citizenship laws support birthright citizenship for all?

In 1940 and 1952, Congress passed immigration laws using the same language as the 14^th Amendment’s citizenship clause.

Justice Kavanaugh asked Mr. Sauer, “If you’re in Congress in 1940 and 1952 and you want to eliminate ambiguity, why do you repeat the same language rather than choosing something different?”

Mr. Sauer replied that Congress was only putting into law a baseline for who would be entitled to birthright citizenship. Congress was not addressing all of the potential exceptions. He added, “We believe the statutes (1940 and 1952) and the Constitution mean the same thing.”

In other words, nothing in the Constitution requires the government to give citizenship to the children of illegal aliens. Congress also has the authority through legislation to define birthright citizenship.

Attorney Wang argued that if Congress in 1940 and 1952 didn’t intend to cover immigration, it would have specifically said so.

What does it mean to be domiciled in the United States?

The government argues that illegal aliens have no legal path to establishing domicile (residence) in the U.S. and therefore their children are not entitled to birthright citizenship.

Attorney Wang pointed to the 1898 precedent-setting case of U.S. v Wong Kim Ark as being dismissive of domicile. This case granted citizenship to a Chinese man born in the U.S. to legal Chinese immigrants. At the time, the U.S. had a law that said no Chinese immigrant could become a U.S. citizen, but Mr. Wong was born here.

The parents’ domicile was not important in determining a child’s citizenship in this case, she argued. All that matters is whether the child is born in the United States.

But the Chief Justice asked, isn’t it something to be concerned about since the Wong opinion mentions domicile 20 different times and stressed that in order to be entitled to birthright citizenship, a person must live permanently in the country.

Even Justice Kagan wondered, what are those 20 domicile words doing in that decision. Attorney Wang said the words didn’t matter and were not an issue for today’s court to worry about.

But Wong’s parents had a ‘permanent domicile and residence’ in the U.S. that illegal aliens do not have. Mr. Wong’s parents were not subject to deportation as illegal aliens are.

Justice Kavanaugh suggested that if the court accepted the ACLU’s interpretation of Wong Kim Ark, she would prevail, and the court could write a fairly short opinion to resolve the case.

President Trump’s Comments on Oral Arguments

After leaving the Supreme Court after 70 minutes, President Trump posted on Truth Social, “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”

Most countries of the world follow the legal principle known as the right of blood, which bases a child’s citizenship on their parents’ citizenship. Justice Kavanaugh dismissed this point as irrelevant, saying, “We try to interpret American law with American precedent based on American history. Why should we be thinking about the many other countries in the world that don’t have this?”

How might the Supreme Court rule?

How the Supreme Court rules on Trump v Barbara will affect the future of our country. Their decision could change the meaning of citizenship and reshape immigration forever. Did the framers mean to make the 14^th Amendment a universal entitlement to all immigrants and aliens, or was it meant only for freed slaves? Could the justices be wary of correcting a misinterpretation of the 14^th Amendment as being just too cumbersome and complicated to overturn and implement?

Here’s what they could do…

Choice #1: The Supreme Court could agree with President Trump’s interpretation of birthright citizenship. No further children born in the U.S. to illegal aliens or those here on temporary visas would be eligible for U.S. citizenship. This decision could radically change immigration in our country, perhaps even ending the flow of people who illegally cross our borders by removing the “anchor baby” incentive for immigration.

Choice #2: The Supreme Court could agree with the ACLU that the 14^th Amendment does mean ANY child born in the U.S is entitled to automatic citizenship. Illegal immigrants would continue to flock to the U.S. The Migration Policy Institute estimates that 225,000 babies a year are born to illegal aliens in the U.S. The next Democratic president could open the border again and reward anchor babies and their families with a lifetime of welfare benefits, free housing, free education, free healthcare, and more.

Birth tourism would explode as more wealthy foreign women travel to the U.S to have their babies and give them U.S. citizenship. To gain entry, these women lie on their applications claiming to be on vacation. According to the Center of Immigration Research, over 33,000 babies are born each year via birth tourism.

Choice #3: The Supreme Court could distinguish between illegal immigrants and temporary visa holders, ruling that one of those two categories is no longer eligible for automatic birthright citizenship, giving a partial victory to both sides.

Choice #4: The Supreme Court could agree with President Trump’s interpretation of birthright citizenship, yet declare an Executive Order is not the constitutional remedy to deny birthright citizenship to children of illegal aliens or temporary visa holders. The Court could rule that any change to birthright citizenship must be made by Congress and be signed into law by the president.

Let justice roll on like a river, righteousness like a never-failing stream! (Amos 5:24)

Let’s Pray for the Justices to do God’s Will

Dear Lord, we ask that you grant holy wisdom and courage to the nine Justices deciding this controversial issue. We pray that each Justice will seek Your guidance in the process of rendering a fair and just decision. Give them the mind of Christ, and may they do what pleases You and not man. May Your will be done to clarify the issues of birthright citizenship in our country and how our nation is to proceed in this important issue. May their decision glorify you, Lord God.

We also pray and hope that those people who are here without permission or legal status, search their hearts and recognize the importance of following the laws, and find a path to resolve their situations responsibly. We pray for an end to birthright tourism and for all loopholes to be closed.

We pray for unity in the decision of the Supreme Court Justices.

We pray that, whatever the decision, the people will hear it and accept it peaceably. We pray against any anger and violence that could erupt when the Supreme Court releases its decision. We ask for protection for the Supreme Court Justices from any harm, in Jesus Name, Amen.

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Belinda Brewster analyzes cultural, political, and world events from a biblical worldview. Belinda’s passion is to equip, support, and encourage parents and grandparents who are courageously battling against the spiritual and cultural forces impacting children and grandchildren. Photo Credit: Al Drago/Getty Images.