Justice Brett Kavanaugh sounded like a fired-up prosecutor last year as he shot off a withering series of nuts-and-bolts questions about how President Donald Trump would carry out his plan to rewrite of theway birthright citizenship has been understoodin the United States for more than a century.
Would hospitals have to change the way they process newborns?Kavanaugh demanded. Would state governments have to do something different? How would federal officials determine citizenship if a birth certificate no longer sufficed?
"Federal officials will have to figure that out essentially," US Solicitor General D. John Sauer managed to say amid a fusillade of rapid-fire queries.
"How?" Kavanaugh pressed.
"So, you can imagine a number of ways —" Sauer began.
"Such as?" Kavanaugh interjected.
As theSupreme Court preparesto consider the merits of Trump's executive order ending birthright citizenship on Wednesday, most of the same practical questions Kavanaugh raised a year ago remain unanswered. Some of those questions speak to the bureaucratic nightmare that Americans — including US citizens — might face documenting a child's immigration status. Others go to the very heart of what it means to be a US citizen.
Most of the court's arguments this week will deal with the history of the 14th Amendment'scitizenship clause, which makes clear that "all persons born" in the United States who are "subject to the jurisdiction thereof" are citizens. Written arguments from both Trump and the groups challenging the policy focus heavily on what the framers meant by "subject to the jurisdiction" of the United States.
Buried beneath that theoretical debate is uncertainty about how Trump's order, which he signed on the first day of his second term, would be implemented if the 6-3 conservative Supreme Court lets it take effect. Kavanaugh's inquiries last year suggested not only that Trump's idea was radical, but that it might also be unworkable.
Federal agencies haverolled out a series of guidance documentsexplaining how people would apply for passports, Social Security numbers and safety-net programs under Trump's plan. But some of those materials have raised as many questions as they've answered.
If allowed to take effect, the policy would create "a tidal wave of legal confusion and chaos," predicted Jill Habig, the CEO of Public Rights Project, a nonprofit that provides legal support to state and local governments and that filed a brief in the case opposing the administration.
"This is the problem with trying to change hundreds of years of the constitutional text and precedent with what is essentially a memo," Habig said. "Every system that we have in this country to prove citizenship is typically based on just a birth certificate."
When the high court delved into birthright citizenship last year, it was dealing with a technical issue about whether courts could halt a presidential directive on a short-term basis while it considered its legality. In late June, the courtvoted 6-3 to limit the ability of lower courtsto block such policies on a nationwide basis under a widely used procedure at the time. But the court left the door open to other avenues to pause such policies — like class-action suits — andTrump's birthright order was put on holdagain days later.
But this time, the court will debate the legality of the order itself. A decision is expected by the end of June.
Kavanaugh is often highly deferential during oral arguments, but his animated back-and-forth with Sauer offered a window into the thinking of a key vote in the court's conservative wing. Trump's second Supreme Court nominee regularly sides with the administration, and he was in dissent when the courtstruck down Trump's emergency tariffsearlier this year.
In response to the blistering inquiries, Sauer said at the time that federal agencies would seek documentation from the parents of newborns to demonstrate "legal presence in the country." For a person working in the US on a temporary basis, he said, the government could perhaps run a check on their name across government visa databases.
But that, Kavanaugh noted, meant the government would have to run checks on the parents of more than3.6 million babiesborn in the United States each year.
"For all the newborns?" Kavanaugh fired back. "Is that how it's going to work?"
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Soil and blood
Trump has insisted the executive order is aimed at combatting "birth tourism," immigrants who come to the United States briefly for the purpose of having a child.
The 14th Amendment was adopted to grant citizenship to freed slaves and their children, the administration has said, not people temporarily in the country illegally. And only since the court handed down a landmark precedent upholding the idea of birthright citizenship in 1898, the government says, has a "latter-day misconception" of the clause's scope taken hold.
"That interpretation is untenable," the Department of Justice told the Supreme Court.
And, it says, it has "incentivized illegal entry into the United States and encouraged 'birth tourists' to travel to the United States solely to acquire citizenship for their children."
But if allowed to take effect, Trump's order would have an impact far beyond the people it ostensibly targets. Critics say it would fundamentally change the meaning of US citizenship from a concept that is tied to geography to one that is linked instead to parentage. And that, they say, is a sharp departure from what the founding generation had in mind.
"We shouldn't view this birthright citizenship question in isolation. We should view it as part of the American experiment and the repudiation of continental ideas of bloodlines and lineage," said Vikram Amar, a University of California, Davis, School of Law professor who has written extensively on the issue. "The whole American experiment is about basing your opportunities and your future on who you are and what you make of your own equality rather than which family and which bloodline you were born into."
After the Supreme Court ruled in the first birthright citizenship case last year, the Trump administration began making public aseries of guidance documentsexplaining the implementation of the order. Among those documents isone from the State Departmentthat explains how officials would "request original proof of parental citizenship or immigration status" to proceed with processing a passport application. To obtain a passport, in other words, a person born after the order took effect would need to document that their parents were citizens.
To obtain a Social Security number, the agency would first check its own database for parents' records. One problem with that approach is that the Social Security Administration itself has acknowledged for years thatpotentially millions of its immigration recordsare inaccurate, in part because the system relies on individuals to update their own records when their status changes.
"It's just not a system for demonstrating citizenship," Habig said. "It is a system for listing Social Security numbers, and that is not the same thing."
Lower courts touched only briefly on the practical considerations of implementing the order, which were important mainly for establishing that the people challenging Trump had standing to sue. In July, a San Francisco-based federal appeals court upheld a Seattle judge's ruling that blocked Trump's policy nationwide in a case brought by a group of Democratic-led states. A separate decision earlier that month by a New Hampshire judge barred enforcement of Trump's order against any babies who would be impacted by the policy in a class-action lawsuit.
Trump appealed both rulings to the Supreme Court, but the justices agreed to hear arguments in only the New Hampshire case.
Dealing with the Brits
Despite the anxieties that have cropped up over implementation the president's order, the Trump administration notes that plenty of other countries have a similar system in place. Sauer is likely to raise that point when he returns to the Supreme Court on Wednesday.
The early American view of birthright citizenship drew heavily from the United Kingdom's approach, which granted near-universal citizenship to babies born on English soil. But Trump's allies point out that changed in 1983 when the Brits abolished automatic birthright citizenship.
"Hardly any developed country retains a rule of citizenship that resembles the United States' current approach," the administration told the Supreme Court.
Critics counter that, in the case of the UK, Parliament enacted a law. Trump, by contrast, is attempting to change the meaning of birthright citizenship through executive order.
And several briefs point out that the experience in the UK was far from smooth. Some of the same concerns groups are raising before the Supreme Court today were previously experienced overseas. Caribbean immigrants who moved to the UK after World War II by invitation from the government, or their children, struggled to prove their citizenship status in whatbecame known as the Windrush scandal.
Under the 1983 law, those immigrants and their children were no longer able to prove citizenship with a birth certificate.
"The theory may have appeared simple but the practice was brutal," a group called Reprieve said of the UK experience in a brief submitted to the Supreme Court in February. "A system built on a bright-line rule gave way to one that bureaucracy could not administer, leaving people who had lived their whole lives as British unable to prove it on paper."
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