The U.S. Supreme Court heard oral arguments April 1 on the legality of President Donald Trump’s executive order issued the first day of his second term, effectively overturning the section of the 14th Amendment that grants birthright citizenship to virtually everyone born in the U.S. At stake is a constitutional right of serious consequence for working people.
Trump’s order is part of his administration’s broad attack on immigrant workers. It’s aimed at intensifying their exploitation of the working class and promoting divisions within it as the employers drive to boost their profits by going after the wages, conditions and benefits of the working class as a whole.
Trump attended part of the hearing — the first known sitting president to attend oral arguments before the Supreme Court — to hear U.S. Solicitor General D. John Sauer argue the government’s case.
All nine justices questioned Sauer. The majority, including both justices considered conservative and liberal, raised questions about the attempt to end citizenship for those born in the U.S.
Chief Justice John Roberts called Sauer’s presentation on the meaning of the 14th Amendment “very quirky,” and questioned how big a problem so-called birth tourism actually is. He suggested it clearly wasn’t a problem in the 19th century when the 14th Amendment was ratified.
Sauer responded, “No one knows for sure,” adding, “we’re in a new world now.”
“It’s the same Constitution,” Roberts fired back.
“We try to interpret the American precedent based on American history,” Justice Brett Kavanaugh said, pushing back against Sauer’s argument that other countries don’t have birthright citizenship. “Why should we be thinking about many other countries in the world that don’t have this?”
Cecillia Wang, national legal director of the American Civil Liberties Union, represented the group of parents and children challenging Trump’s effort to overturn the 14th Amendment.
Both sides argued that the Supreme Court’s 1898 decision in United States v. Wong Kim Ark backed their position. Wong Kim Ark was born in the U.S. to Chinese parents who ran a business in San Francisco. They were ineligible to become U.S. citizens because of the notorious 1882 Chinese Exclusion Act. He was denied entry to the U.S. on his return from a visit to China.
In 1898 the Supreme Court ruled that Wong Kim Ark was a U.S. citizen. Writing for the majority, Justice Horace Gray explained that while the “main purpose” of the 14th Amendment was to establish citizenship for former Black slaves born in the U.S., it applies more broadly, and is not restricted “by color or race.” It “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.”
Sauer agreed that Wong Kim Ark’s parents were lawful permanent residents and had a permanent home here even though not U.S. citizens. Trump’s executive order is different, he argued, because it applies to those who are not lawful permanent residents.
This would include children of undocumented immigrants or temporary visitors such as H-1B skilled workers, student visa holders, and tourists. It wouldn’t apply to children of U.S. citizens or green card holders.
Justice Elena Kagan disputed Sauer’s reliance on the case. “The position you’re taking now is a revisionist one with respect to a substantial part of our history,” Kagan said.
Second American Revolution expanded rights
Justice Neil Gorsuch reminded Sauer the U.S. didn’t have strict immigration laws when the 14th Amendment was ratified in 1868.
That Amendment was a conquest of the Second American Revolution that abolished slavery. Following the Civil War, governments of Radical Reconstruction were established across the South, backed by the Union Army. They pushed forward the fight — led by African Americans — for emancipation, citizenship and suffrage against the former slaveholders. Hard-fought gains in that struggle were registered with the passage of the 13th, 14th, and 15th Amendments.
The 14th Amendment overturned the Supreme Court’s 1857 Dred Scott decision, which had defended the underpinning of the slave system, holding that Blacks whose ancestors were brought to the U.S. and sold as slaves were not entitled to any protection from the federal courts because they were not citizens. Since its ratification the 14th Amendment has been understood to confer citizenship on all those born in the U.S.
A decision on the case against Trump’s order is expected by late June or early July.