“Re: birthright citizenship, Solicitor General John Sauer told Chief Justice John Roberts we’re ‘in a new world,’ which sounds to me like he believes in the ‘living Constitution’ that led to decisions like Roe v. Wade. Or is this just another example of the hypocrisy of so-called conservatives who advance principles (like strict constructionism) whenever it’s convenient, and quickly abandon them when it’s not? It’s amusing to see at least one Supreme Court justice refuse to play along.” — David   

Hi David, 

Yes, last week’s birthright citizenship hearing in Trump v. Barbara had an upside-down quality to it. 

In the part of the hearing you refer to, Sauer argued that the modern practice of “birth tourism” justifies Donald Trump’s anti-birthright citizenship executive order. Roberts noted that the practice “certainly wasn’t a problem in the 19th century,” when birthright citizenship was cemented in the Constitution’s 14th Amendment. Sauer conceded the historical point but said that “we’re in a new world … where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.” That prompted the chief justice’s instantly famous response: “Well, it’s a new world. It’s the same Constitution.”

Sauer’s appeal to modernity reflected a simple reality of the case that’s been clear from the moment that Trump issued his order, which was quickly rejected in the lower courts as “blatantly unconstitutional”: If the high court straightforwardly applies the originalist and textualist framework that the conservative legal movement has successfully fought to establish as mainstream, then it’s an easy case against the administration. Through his order, issued on his first day back in office, Trump is effectively trying to single-handedly overturn the Constitution, federal law and more than 100 years of high court precedent that have stood for a basic premise of American life: If you’re born here, you’re a citizen. 

On the other hand, if the court deems it appropriate to take policy concerns into account, then all bets are off. For what it’s worth, the justices’ questions and comments at the hearing suggested that Trump will lose this case, though we won’t know for sure until we have the decision later in the spring or early summer.

And it wasn’t only the chief justice who called out the administration’s policy gambit at the hearing. 

Another example came in an exchange between Sauer and Justice Brett Kavanaugh. The Trump-appointed justice noted that the government lawyer had mentioned the citizenship practices of other countries “several times,” which led Kavanaugh to remind him that “we try to interpret American law with American precedent based on American history.” The justice wondered, then, why it matters how European countries go about granting citizenship. “I guess I’m not seeing the relevance as a legal constitutional interpretive matter necessarily, although I understand it’s a very good point as a policy matter,” Kavanaugh said.

Sauer admitted that he “largely agree[d]” with Kavanaugh. But the lawyer went on to say that “all European countries have a different rule, and the world hasn’t ended there.” 

In other words, the “America First” administration wants the court to look to Europe, to bolster a legally irrelevant argument for how the U.S. Supreme Court should interpret the meaning of American citizenship.

To your point about hypocrisy and living constitutionalism, I was reminded of past conservative critiques of looking abroad, such as in the death penalty context. For example, in a 2005 case that barred the execution of people who were under 18 when they committed their crimes, conservative icon Antonin Scalia, for whom Sauer clerked, lamented in dissent that “the views of other countries and the so-called international community take center stage” in the ruling. He wrote that “the basic premise of the Court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand.” 

As it happens, the policy claims Sauer pressed at the citizenship hearing have dominated the president’s complaints. After the hearing, which Trump attended himself in an apparent first for a sitting president, he wrote untruthfully on his Truth Social account that we’re “the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” 

To the extent that Sauer acted as an avatar for Trump’s personal preferences, it diminished, or at least didn’t help, his legal argument. But that could also be a function of the reality that he knows he has a weak one.  

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.

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