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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.
My best guess (and that is all I claim it is) is that we might get a baby-splitting decision that manages to somehow save the citizenship status of persons who have already been enjoying the privileges of citizenship due to being born here, whilst opening the door for denying future persons birthright citizenship on broader grounds, going forward.
Roberts really does love his 'compromise' rulings.
There is certainly an "estoppel" argument where, if the U.S. government has declined to challenge a person's claim to citizenship, and has been conferring upon them the benefits of citizenship since their birth, that it would be manifestly unjust to then later suddenly declare them a noncitizen without some other legitimate justification for expulsion.
But that wouldn't mean that every person in the U.S. going forward would get that same benefit. Surely there's also an argument that if a person enters the U.S. completely undocumented, in violation of multiple immigration laws (most of which were implemented after Wong Kim Ark), and the government by its actions (i.e., enforcing its immigration laws and siccing its agents on them to remove them) declares that it doesn't abide their presence here... any kid(s) they manage to pop out wouldn't be 'subject to the jurisdiction' of the U.S. in a politically meaningful sense?
It certainly seems, to me, that Citizenship should in theory require a governmental stamp of approval. That is, one shouldn't be able to just enter a territory, trigger some arbitrary condition ("eats a handful of the local dirt" as an absurd example) then declare themselves citizen without the government even being aware of their presence. Citizenship is a political designation after all.
Anyway, I am woefully underinformed (for an attorney) on 14th amendment matters. Its simply not my specialty, so this is me more going off my reads of the Justices themselves than strict legal reasoning. Birthright citizenship had been the default for so long that it never occurred to me to even consider if it could be challenged.
From the purely practical standpoint, if SCOTUS declares birthright citizenship completely inalienable outside of the few narrow exceptions, and congress won't use its clear authority to adjust this (which, I can't expect they will) then the only possible response that makes sense is to implement the most stringent border controls imaginable, if merely being born here gets you a valid social security number and entitlement to claim any and all benefits they might then qualify for.
That is, if we're going to maintain the current web of welfare benefits and entitlements and wealth transfers where existing citizens who are obligated to keep on paying taxes will be on the hook to pay for every single kid who happens to be born here, whether that kid is productive or not, and every single one of said kids will also be entitled to vote on the continuation and extension of such benefits, we're starting to diminish the political value of being a net taxpayer at all.
At some point it is valid to question whether the Constitution is still fulfilling the purposes it was created for as per the Preamble.
EDIT: And to be clear, I am absolutely fine with biting a bullet where even kids born in the U.S.A. where both their parents are citizens wouldn't inherently get to claim citizenship. I think exile is a politically useful tool and should be used more often, and its actually a bad thing that the U.S. only has the options of life imprisonment or execution for certain classes of crimes, the latter of which is very difficult to implement.
And if the answer is that it isn't, what then? What does that matter, if there's nothing you can do about it?
Easy.
Quoth the Declaration of Independence:
I like the word 'whenever' in that context. Its not like you have to wait for a prescribed moment.
But I expect most people aren't so uncomfortable as to really desire that, and certainly the most rational amongst us realize that the cost of such a step would be insanely high, and the risk of something worse replacing it is real and serious.
The Declaration of Independence and the American Revolution occurred near the peak of the "age of the gun," when the nature of warfare was most favorable to the masses versus states. That ended some time ago, and modern first-world governments are effectively rebellion-proof.
If the United States hadn't withdrawn in a hurry from Afghanistan after 20 years of pouring military materiel into it, I might grant that argument.
But as it happens, a bunch of religious zealots with guns won their country back despite the economic and technology imbalance.
This directly implies it is, overall, a contest of wills more than pure technological might.
And I do not think that modern first-world politicians are assassination-proof.
Since, you know, the guy who is currently President came within millimeters of being assassinated about two years ago.
By dude with a gun.
And civilian uprisings have successfully unseated heads of state in Nepal, Madagascar, Bangaladesh, and Sri Lanka.
That's just the past 3 years. I do not think 'first world' governments are qualitatively more secure than the governments of those countries.
The feature that makes a first world government rebellion-resistant is the ability to keep people economically pacified, I'd say.
So I just fundamentally disagree that rebellion can't be achieved under modern constraints.
Whether rebellion can successfully foment a change for the better, I do wonder.
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