WASHINGTON, April 2 (Reuters) – President Donald Trump took the short trip from the White House to the U.S. Supreme Court with his signature priority of cracking down on immigration largely intact, given repeated interventions by the nation’s highest judicial body in his favor. By the time he left, his luck may have run out.
With Trump looking on from the public section of the courtroom – a historic first for a sitting president – most of the nine justices seemed unwilling on Wednesday to let him proceed with what may be the most audacious piece of his restrictive immigration agenda. At issue during the arguments was his executive order that would deny birthright citizenship to hundreds of thousands of babies born each year on U.S. soil.
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The members of the court, led for more than two decades by conservative Chief Justice John Roberts, signaled that the administration’s arguments backing Trump’s effort are legally invalid and inherently impractical.
“I do not think that Chief Justice Roberts wants to go down in history as presiding over a court that ended birthright citizenship,” said Kevin Johnson, an immigration law expert at the University of California, Davis.
The court, whose 6-3 conservative majority includes three justices appointed by Trump, heard the administration’s appeal of a lower court’s decision that blocked his directive.
THE CITIZENSHIP CLAUSE
The lower court found Trump’s order to be inconsistent with the U.S. Constitution’s 14th Amendment, which long has been interpreted as granting citizenship to virtually anyone born on U.S. soil, with some narrow exceptions including the children of foreign diplomats or members of an enemy occupying force.
The 14th Amendment’s provision at issue, called the Citizenship Clause, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Johnson said the court will likely be swayed by the plain language of the Citizenship Clause and the “long, unbroken history” of birthright citizenship.
“The questions of the justices touched on some possible cracks in the rule but it remains intact,” Johnson said.
Roberts labeled as “quirky” the administration’s argument that the 14th Amendment’s phrase “subject to the jurisdiction thereof” limits large categories of immigrants.
The chief justice also appeared to dismiss a contention by U.S. Solicitor General D. John Sauer, defending Trump’s order, that the risk of “birth tourism” – by which foreigners travel to the United States to give birth and secure citizenship for their children – is a reason why the longstanding interpretation of the citizenship provision is wrong.
“We’re in a new world now,” Sauer said. “Eight billion people are one plane ride away from having a child who’s a U.S. citizen.”
“Well, it’s a new world,” Roberts replied. “It’s the same Constitution.”
Not all the justices appeared to doubt Trump’s policy, however. Conservative Justice Samuel Alito, for instance, seemed receptive to the administration’s argument that birthright citizenship should be extended only to those with “lawful domicile” in the U.S., which lawyers for the administration define as “lawful, permanent residence within a nation, with intent to remain.”
