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This past Wednesday at the Supreme Court saw oral arguments in Trump v. Barbara. For those not following along this is the birthright citizenship executive order case. You can find the full transcript here.
As someone who listened to the live audio and has now read back over the transcript a couple times I think things went pretty poorly for the government. So much so I wonder if this was the straw that broke the camel's back with respect to firing Bondi. I'm very confident this case is going to be 7-2, if not 9-0, against the government.I'm not going to rehearse all the arguments, it's very long.
The government's oral argument mostly focused on the idea that for a child to be subject to the jurisdiction of the United States for the purposes of the 14th amendment their parents had to be domiciled here. Where domicile requires (1) lawful presence and (2) intent to stay. The justices (principally Gorsuch, ABC, and KBJ) poke a bunch of holes in this argument. Pointing out both practical and theoretical issues with both parts of the definition. It is not my impression that the justices were especially convinced by Sauer's answers to those questions.
The respondent's oral argument, by my read, was much more focused. Why did Wong Kim Ark mention domicile in some contradictory ways as to whether it mattered? How to understand the association between the posited set of exceptions. If the different language of the Civil Rights Act of 1866 was any guide in interpreting the 14th amendment. Interestingly Justice Alito even jumped in on this first one to volunteer a reason why Wong Kim Ark might mention domicile in the question and the holding without having incorporated it into the relevant test.
This is all tea-leaf-reading, of course, but my current read is the government is very likely to lose.
Sauer: "It's a new world, 8 billion people are only a plane ride away"
Roberts: "It's a new world, but it's the same constitution"
ACLU lawyer: "let me be clear, we need to go with the original public meaning"
It would be funny if it wasn't so infuriating.
But the constitution was written in a completely different context. When Jefferson wrote the declaration, and even up to the end of the civil war, coming to another country was a fairly difficult task. You had to be at sea for a few weeks at minimum, often having to sell off most of your assets to get here. Given that our southern border was mostly wilderness at the time, marching across that border wasn’t really a feasible plan. Birth tourism would be impossible. You simply cannot do that kind of thing. So it’s not clearly the original intent to allow 8 billion people to hop a jet and give birth on the LAX tarmac.
Except that it clearly was, because there was all that wilderness to settle, and increasingly factories to staff-up. They were literally giving land away to anyone that could prove they could work it productively.
Except that it clearly wasn’t, as citizenship was restricted to “free white persons” of “good character” in 1790, only three years after the Constitution was written.
Yeah that was just Racism with a capital R. We're better than that now.
Call it what you will, it’s clearly not open borders.
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