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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.
The original public meaning has two main exceptions that make the ACLU's position nonsense: Indians and Diplomats. In 1866 those two groups couldn't just go around raping and pillaging and avoid being hauled into American courts. To quote that insurance commercial, "Thats not how this works. Thats not how any of this works."
If we arent going to reconsider WKA. And we probably aren't. The principled question to ask about any immigrant group is, "are they more like a permanent resident or more like and Indian/diplomat?" Tourists seem more like a diplomat. Illegals seem more like an Indian.
Yes that actually is, to some degree, how it works. The tribes exist as independent sovereign nations under the US's ward and they have some weird things they can do because of this like having their own passports if they want (even if it's not accepted by most other nations) and until 1871 were able to form treaties of their own unlike the states. They can even have their own independent court systems for tribal laws, although in practice most tribes tend to form agreements with the state and county governments in regards to law and the courts.
About that, even the law that allows for prosecution on tribal land is pretty interesting
The federal government actively acknowledges tribal sovereignty here and gets around it by basically saying "hey you're your own nations, but we're just gonna come in regardless and prosecute your people the same we would those in our own jurisdiction". It's like if the US says "we're going to invade Venezuela and kidnap + prosecute the president there. Venezuela doesn't belong to us, we're just doing it anyway". That doesn't make the Venezuelan territory under US jurisdiction.
The jurisdiction and history of US law over tribal nations is extremely complex and it doesn't work for the immigration debate unless you're trying to argue that each illegal immigrant creates a shifting sphere of foreign sovereignty on the ground they're currently standing on or something else crazy like that.
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