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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.
I'd been debating trying to put together a comment on the oral argument. The biggest reason against it is because it's always surprisingly harder than it seems to actually guess votes from oral argument. I'm probably not very good at it. I did go through justice-by-justice and just review their individual colloquies. I guess maybe some observations.
I hate to say it, but Sotomayor is a known quantity. She will vote for any opinion that preserves maximal birthright citizenship. She will almost certainly not get the assignment to write the majority opinion. I doubt she'll change any minds by telling Sauer that his argument means overturning WKA. Nor by saying that their only option would be to kill birthright citizenship of children of permanent residents.
Alito is pretty similar in the other direction. Kind of at best, he piled on to the Thomas/Gorsuch/Barrett/Kavanaugh axis of asking if they can look at principles behind rules instead of just the stated rule. Similarly, he piled on to the Roberts/Kagan axis in asking, "Why did WKA say 'domicile' 20 times?" I doubt his piling on will accomplish much, and I doubt he'll get the assignment for a majority opinion, either.
I don't think Thomas added much other than starting the bit about looking at principles behind rules.
Roberts was, as is typical, skeptical of both Sauer's position, in saying that the existing exceptions were "tiny and sort of idiosyncratic", as well as starting the, "Why did WKA say 'domicile' 20 times?" push. It's always hard to read him, which is extra annoying, because he's highly likely to try to assign this opinion to himself.
Kagan was, I don't know if I find this surprising or not, the most negative on the idea that 'allegiance' has anything to do with it. That's a bit strange, because she also was the only one who said much that indicated that she was interested in considering whether there was a different answer for temporary visitors versus illegal entrants (twice!), and as I've said before, my best guess of an allegiance analysis would actually make such a distinction at least plausible.
Gorsuch, on the other hand, really seems to think that allegiance could have something to do with it. But he's maybe my spirit animal in the argument. Concerning the legal community's understanding of WKA in the aftermath of the decision, he said, "It seems to me it's a mess." Concerning how to square what Justice Gray was thinking, as he wrote both WKA and Elk, he said, "It's a struggle." Yeah, man, it's hard. He did have a wider variety of things he talked about, and I won't mention all of it, but man, how did Sauer not prep an answer for The Indian Justice asking whether current day Native Americans are 14A citizens? This was the weirdest thing, as Sauer said that now they probably were (which makes no sense to me). Wang (counsel for Respondents) more sensibly told Barrett that they weren't. There is a possible world in which Gorsuch is a swing vote, and Sauer lost it in that moment, because it's so difficult to make any sense of a theory that lets the gov't even have a partial win that makes sense with that idea. I guess there's also a possible world where The Indian Justice is actually intrigued and tries harder to come up with a theory that sort of comports with the gov't position and lets him give Native Americans 14A citizenship? It's just so strange, because it would seem to me that it would be very difficult to do so without overruling Elk, and doing so makes it even harder to piece together a theory that allows the gov't to win on any of the issues.
Jackson didn't add all that much. She's pretty confident that domicile ain't it, and she's also skeptical that Congress can affect 14A by defining domicile. She does invoke Schooner, though (DRINK!).
Barrett is always looking for a theory, and she's coming up empty with the advocates. Unsurprisingly, in my mind, since neither advocate can really embrace a theory that makes much sense. Was interesting in that she brought up Ex Parte Quirin and asked about Indians born outside of a reservation. I didn't think she got much of interest in response, though, as the conversation likely ends up mired in questions about what 'counts' as something like an "occupation" or whether that's strictly necessary.
Kavanaugh pokes on the language difference between the CRA/14A, and I think remains confused about how to make sense of it. Also was the only one to poke on whether Section V of 14A did give Congress some room to affect what "subject to the jurisdiction thereof" meant, but I'm not confident he's going to sway the other justices with that.
One brief note is that I think Schooner (DRINK!) was mentioned more than any case other than WKA, but it was repeated a couple times in a sentence; that really puts it more on par with Elk.
In sum, I should obviously say at the outset that I think the government's domicile theory is not going to win. I can't see it getting there (that part could certainly lose 8-1). Frankly, I also think it's a bad theory.
What I'd be watching most is the Thomas/Gorsuch/Barrett/Kavanaugh axis that poked on whether the set of exceptions are really closed or whether the Court should look at the principles behind the rules. I could see them going either way. I think they clearly failed to have a chance to really dig in to the next step, which would be, "If we think that we need to look at the principles behind the rules, what does that look like?" I think they were all grasping for some sort of theory that did this, and they came up empty.
Of course, I personally still think that the "right" answer is that they should look at the principles behind the exceptions, and they should agree with Wang that those principles are expounded in Schooner (DRINK!), and then try to work from there. I'm not terribly hopeful that they'll get there, but if one of them circulates an opinion that can cobble together enough of a theory that does this, I could see them picking off either some votes for a concurrence or even garner a majority. I don't know how their analysis of the principles behind the rule will actually come out; I could see that going at least two of the three ways (maybe with an extra bit of entropy on the Indian question). That's really hard to tell, given that they didn't manage to really get to responses on how they would go about doing that.
Indians were given citizenship by statute a century ago. Given that they're aIready citizens regardless, this hardly seems worth losing sleep over. I'm clearly missing a piece here. What else does this tie into?
It is a little thing, but I think Gorsuch sometimes likes little things. There has been a sense in many of the discussions happening around this case that there is an important, even if mostly symbolic, difference between being a 14A birthright citizen and being a statutory/naturalized citizen. Part of it is, I guess, some sense of "Congress can't take that away, even if they wanted to".
I mostly find it kind of funny; I tried to downplay the reality of it being a significant issue with "I guess there's also a possible world", but maybe that wasn't enough. It's a very very minor thing, and I think the much more important issue for him (and a few other justices) is whether he can come up with a theory that makes sense of the "mess" (or whether another justice circulates an opinion that does).
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