WASHINGTON −President Donald Trump’seffort to redefine who is an American did not get the quick rejection from theSupreme Courtthat manyexpected going into the April 1 oral arguments, but key conservative justices seemed skeptical of the administration’s arguments for its legality.
Every other court that has reviewed Trump’s executive order severely restricting birthright citizenship ruled against it.
But the conservative justices, who have a 6-3 majority, also had probing questions for the other side, particularly about how to understand the court’slandmark 1898 rulingupholding the citizenship of a San Francisco-born man whose Chinese parents were barred from becoming citizens under the laws of the time.
Protests outside Supreme Court as birthright fight reaches justices
Still, the court can rule against Trump without agreeing what that ruling meant. That would be a major blow to the president, who attended part of the arguments in ahistoric first for a sitting president.
Here are six takeaways from the arguments:
Justices have more than one way to rule against Trump
The 14th Amendment grants automatic citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
Trump argues that doesn’t apply to the children of people who are in the country illegally or temporarily.
While the justices spent much time debating the original meaning of that clause and how to interpret the court’s 1898 landmark ruling about it, there’s another potential way for the court to decide the case.
A citizenship law passed in 1952 uses similar language that was well understood at the time to be different than Trump’s interpretation of the 14th Amendment, meaning the court could reject Trump's order without settling every question about the amendment's intent or the 19th Century ruling.
Justice Brett Kavanaugh, a Trump appointee, noted that the court’s usual practice is to resolve issues on a statutory – not constitutional – basis when possible.
But Cecillia Wang, the ACLU attorney representing the challengers, said it’s important for the court to back its landmark 1898 ruling about birthright citizenship.
“I just think it would be prudent for the court to go ahead and reaffirm that,” Wang said, “but, of course, we’d be happy to take a win on any ground.”
For his part, Solicitor General John Sauer argued that if the lawmakers who wrote the 1952 law misunderstood the 14th Amendment, theSupreme Courtcan correct that at the same time by upholding Trump's order.
But if the court is going to rule against Trump, Sauer added, the administration would prefer to lose based on the 1952 law and not on the Constitution. If that happens, Congress could still revoke birthright citizenship by changing the law, although that's extremely unlikely without large Republican majorities in both chambers. That would surely draw another legal challenge, likely sending the constitutional question back to the high court.
What does 'domiciled' mean?
A fierce point of contention is whether parents have to be “domiciled” in the United States, meaning that they are lawfully in the country and intend to remain, for their children to be considered citizens. The word "domiciled" appeared numerous times in the landmark 1898 decision upholding birthright citizenship but lawyers challenging Trump's order contend it isn't required for citizenship.
Sauer argued that domiciled means people who are lawfully in the country and have an intent to remain permanently. His position ruled out the children of undocumented immigrants or people visiting the country temporarily who wouldn’t automatically be granted citizenship.
But Justice Amy Coney Barrett, a Trump appointee, suggested that definition of birthright citizenship could be difficult to apply.
"You're not going to know at the time of birth, for some people, whether they have the intent to stay or not," Barrett said.
Chief Justice John Roberts noted that word “domiciled” appeared 20 times in the court’s 1898 decision that confirmed birthright citizenship for nearly everyone born in the country.
“Isn’t it at least something to be concerned about, to say since it was discussed 20 different times, and it has that significant role in the opinion, that you can just dismiss it as irrelevant?” Roberts asked Wang, the ACLU attorney.
Wang said birthright citizenship came from English common law that didn’t require parents to be domiciled.
Justice Neil Gorsuch, a Trump appointee, suggested the purpose of the word “domiciled” in the 1898 decision is uncertain.
“It seems to me it’s a mess,” he said. “Maybe you can persuade me otherwise.”
Birth tourism: Justices say Trump's policy concerns are irrelevant
Trump has hammered away at “birth tourism” – the practice of pregnant women coming to the United States to give birth so their babies will be citizens – as a main justification for curtailing birthright citizenship.
“It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States,” Sauer told the court.
But the extent of birth tourism – and its threat to national security – is hotly contested. Estimates range from a "marginal" 2,000 babies a year to disputed allegations of100,000 per year during a 15-year span.
Pressed on the statistics by Roberts, Sauer acknowledged it’s unclear how common the practice is.
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“No one knows for sure," Sauer responded.
More:USA Happy Baby, birth tourism and a blockbuster Supreme Court case
Regardless of its impact, Roberts made the point that policy considerations “have no impact on the legal analysis before us.”
Kavanaugh, another conservative justice whose vote is often key to decisions, made the same point about the administration’s complaint that most countries do not have birthright citizenship.
“You’ve mentioned several times the practices of other countries, and that obviously, as a policy matter, supports what you’re arguing here,” Kavanaugh told Sauer. “But obviously we try to interpret American law with American precedent, based on American history.”
Some conservatives press Trump administration's argument
Some of the court's conservative justices appeared concerned with the breadth of the Trump administration's argument, or with the practicalities of how it may be applied.
Roberts, who was appointed by President George W. Bush, said examples the Trump administration used to argue that children born in the United States to unauthorized immigrants aren't automatically citizensstruck him "as very quirky."
The administration pointed to children of ambassadors and children of enemies invading the country, suggesting that because those children weren't historically understood to be entitled to citizenship, children of unauthorized immigrants aren't, either.
"I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples," Roberts said.
Sauer said there is historical evidence to support understanding birthright citizenship as going to people who don't owe allegiance to any other country.
Barrett suggested that the Trump administration's definition of birthright citizenship – whether the parent of a child born in the United States is "domiciled" in the country, meaning has a permanent intent to stay here –is tricky to apply.
Sauer said, as a practical matter, the president's executive order looks at the legal immigration status of a child's parents, so it doesn't require courts to evaluate a parent's intent.
Liberals skeptical of Trump stance on birthright citizenship
It was already clear ahead of the arguments that the court's three liberal justices were highly skeptical of the Trump administration's stance on birthright citizenship.
Ina June dissenting opinionin a case dealing with the power of lower court judges to halt Trump's citizenship order nationwide, Justice Sonia Sotomayor wrote that the order is "patently unconstitutional under settled law." Justices Ketanji Brown Jackson and Elena Kagan joined that opinion.
None of the three Democratic-appointed justices has changed her mind, judging by the April 1 arguments.
Kagan, an appointee of President Barack Obama, said "everybody has believed" the rationale backing birthright citizenship"for a long, long time."
Jackson suggested that a win for the Trump administration could fundamentally destabilize citizenship, because Congress could continually upend birthright citizenship simply by redefining what it means to be "domiciled" in the United States. (The Trump administration says a parent's place of "domicile" is key to whether a child has birthright citizenship.)
Sotomayor argued that, if the Trump administration wins, it could startstripping people of the citizenship they already havethrough a new executive order, even if the order at issue only applied to future children born in the United States.
"The government could move to unnaturalize people who were born here of illegal residents," she said.
Sauer argued that there have long been disputes about who has birthright citizenship, and the Trump administration isn't asking to undo birthright citizenship going back in time.
In unprecedented move, Trump attends Supreme Court argument
Trump demonstrated the importance of the case to him by taking the unprecedented step for a sitting president of attending the April 1 argument in person.
Trump's motorcade arrived at the court about 9:40 a.m., after passing school groups touring the National Mall on his way from the White House to the court across the street from the Capitol. He entered through a back entrance.
Trump’s presence wasn’t acknowledged by the justices or lawyers, but a few quiet gasps echoed through the room when he entered. He sat in the front row of public seats behind the counsel tables.
Trump left the argument after Sauer's main presentation ended, after a little more than an hour.
“We are the only Country in the World STUPID enough to allow “Birthright” Citizenship!”Trump said on social mediaafter the argument ended.
According to the Pew Research Center, there are32 other countries that offer birthright citizenshipwith essentially the same terms as the United States, including Canada, Mexico and Brazil.
Contributing: Karissa Waddick
This article originally appeared on USA TODAY:6 takeaways as Trump's citizenship order takes heat at Supreme Court
