politics

See kids, this is why we still use Firefox (I did not pay):

Wednesday’s Supreme Court arguments over birthright citizenship went very poorly for Donald Trump. The president watched from the front row as a majority of the justices expressed deep skepticism toward his executive order seeking to deny U.S. citizenship to the American-born children of many immigrants. He walked out of the courtroom midway through arguments and later ranted on Truth Social that the nation is “stupid” for protecting this fundamental right. Trump is not a sophisticated legal observer, but even he seemed to understand that the case is not going to go his way.

There was no single turning point against the administration at arguments—but one exchange between Justice Amy Coney Barrett and Solicitor General John Sauer may have locked in the government’s loss. On a special Slate Plus bonus episode of Amicus, co-host Mark Joseph Stern discussed this pointed exchange with Evan Bernick, a professor at Northern Illinois University College of Law and co-author of a significant amicus brief in the case. A preview of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: Justice Barrett had a lot of skeptical questions for the solicitor general. And she really drilled down on his theory that children do not receive birthright citizenship if their parents lack “domicile” in the United States or hold “allegiance” to a foreign power. She asked how the government would know whether certain immigrants intended to stay in the country or maintain loyalty to a foreign power. And where would we draw the line? What about, for instance, the child of a woman who’s illegally trafficked into the U.S. then gives birth here? Is that person an automatic citizen?

Sauer kept returning to his claim that the lone purpose of the 14th Amendment’s citizenship clause was to overturn Dred Scott and grant citizenship to newly freed slaves and their children. But then Barrett asked: What about slaves who were brought to this country illegally and against their will, as many were? Surely some of them still “felt allegiance to the countries where they were from” and intended “to return as soon as they can.” So wouldn’t their children be excluded from birthright citizenship, too? And if so, doesn’t that just blow up Sauer’s theory that the whole point of this clause was to protect the citizenship of these exact people?

Evan Bernick: Justice Barrett likes to show why history supports a rule that makes sense rather than doing history just for the sake of history. She wants to show how there’s latent wisdom to the rule that was incorporated into this history. And for Barrett, that is the rule of jus soli—the idea that if you’re born in a place and governed by that place, you’re a citizen of that place. If you have that rule, you don’t have to worry about the “domicile” or “allegiance” of people who were illegally trafficked.

She made very clear that she viewed the children of slaves through the lens of unlawful immigration. She thought that the situation of enslaved people’s children was not something that could be settled on the basis of any domicile requirement. Because if we think about domicile as “presence with intent to remain,” well, enslaved people didn’t intend to remain anywhere! They were taken. They were forced into a place. So domicile can’t be the rule, because then you can’t unproblematically grant citizenship to the children of formerly enslaved people.

Just to draw this out: Sauer’s argument is that if people came here illegally, their children don’t get birthright citizenship. Barrett responded: OK, but many slaves were brought here illegally, and everyone acknowledges that the point of the 14th Amendment first and foremost was to grant citizenship to them and their children. So this felt like the moment that Sauer completely lost the case, because he had to admit that his chief theory cannot be squared with what he himself acknowledges the 14th Amendment was ratified to do.

Yes. And I inferred another implication from what Barrett was saying: If domicile is the rule, and domicile requires that you have the permanent intention to stay in a place, enslaved people who were forcibly imported into the country against their will did not have an intention to stay there. So if we’re going to tie the status of children to whether their parents are “domiciled,” under Sauer’s own theory, why would the children of formerly enslaved people be citizens at all? The citizenship clause would not accomplish its most basic function of overruling Dred Scott.

So I think that is what’s going on with Barrett. She read the briefs. She has a firm idea about the distinction between two very different theories of citizenship: jus soli, based on soil, and jus sanguinis, based on descent. The former is much less complicated than the latter. The framers of the 14th Amendment had good reasons to use the less complicated one. And we have good reason to keep it, because it prevents all these very complicated problems from subsequently arising.

Barrett did ask tough questions of the ACLU’s Cecillia Wang, who argued against Trump’s order. She really pressed Wang on whether Congress could expand the limited classes that do not receive birthright citizenship. What did you make of that?

Wang took the position that the set of exceptions to birthright citizenship is closed. Congress can’t create new exceptions to birthright citizenship, but it can get rid of old exceptions. And Barrett was unsatisfied with this, because Wang didn’t really elaborate a theory about it. So it came off more as “this is good policy” rather than “I’ve got text and history on my side.” And Barrett wondered where this closed set came from.

But you still think this case will probably come down 7–2 against Trump with Barrett in the majority?

Absolutely. Barrett was outright hostile to the solicitor general’s arguments. I just think her professor mindset was triggered by some of Wang’s answers.

Yeah. I seriously find it offensive when people post articles that nobody can read. WSJ and Economist are other such examples.

His grandfather moved here from germany doing what their family loves to do best, running from their wartime fighting obligations because they’re a family of cowards. He started a whorehouse.

https://en.wikipedia.org/wiki/Frederick_Trump

His kids are all birthright citizens

Ivanna was not yet a citizen when she had Don Jr., Ivanka, and Eric Trump.

His children are, but he doesn't really care about them

Trump would be just that. His fucking grandfather was an illegal alien. Which means his father would not have been immergrant. Also learn that all his children mother was not a citizen until long after the last child was born.

His dead wife who he buried on a golf course had all their kids before she became a US citizen iirc

the gist, as I understand, is that the argument that was presented is basically "the purpose of the 14th amendment was only to grant citizenship to newly freed slaves; children of parents who do not intend to permanently live in the US, or who still feel allegiance to a foreign country, are not intended to be included." Barrett's response was essentially "your argument is self-contradictory. many parents of newly freed slaves did not feel allegiance to the US and wished to return to the countries that they or their ancestors were taken from against their will. the amendment cannot have been intended to both include and exclude their children."

Sauer claims that the birthright citizenship should only apply to people born here who intend to stay, and have no foreign allegiances. He justified that by saying the history of birthright citizenship is specifically to help newly freed slaves after the US civil war, and should not apply to children of illegal immigrants.

Barret noted that most slaves were trafficked here against their will, and undoubtedly some of them wanted to go back to their home, or were still allegiant to their home country. So, Sauer's test of whether someone is domiciled and has no foreign allegiances would preclude a sizeable amount of freed slaves. Therefore, his test is ahistorical, because in fact all slaces received citizenship regardless of their allegiance or willingness to stay.

The article claims the case will be won 7-2 in favor of birthright citizenship without any loyalty test.

Trump's solicitor general was saying the 14th amendment wasn't intended to cover the children of people here illegally, that it was intended for slaves.

Barrett argued that slaves were brought here illegally, so his basis is flawed.

It goes on about the governments position on domiciled people's vs jus soli, based on soil, and jus sanguinis, based on descent and how basing citizenship on decent could get confusing very quickly therefore the writers of the 14th amendment clearly intended on jus soli.

Just before the paywall for me:

What about slaves who were brought to this country illegally and against their will, as many were? Surely some of them still “felt allegiance to the countries where they were from” and intended “to return as soon as they can.” So wouldn’t their children be excluded from birthright citizenship, too? And if so, doesn’t that just blow up Sauer’s theory that the whole point of this clause was to protect the citizenship of these exact people?

no. don't be fooled, there are a lot of evil people who are smart, intelligent and actively ruining society

Trump is certainly all of the above. But others around him are much more intelligent. Relatively speaking of course. OTOH being aggressively and confidently dumb and imcopetent was Trump's charm when he got elected, so I don't really see one of the clever ones winning. Yes, I'm fully aware what I just wrote there: many people want to vote for dumb braggarts.

But then again, it is not impossible to have charisma AND be intelligent AND NOT evil. Here's to hoping.

Why is it terrible? It honestly seemed like a pretty good point to me.