{"id":559201,"date":"2026-04-02T00:22:12","date_gmt":"2026-04-02T00:22:12","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/559201\/"},"modified":"2026-04-02T00:22:12","modified_gmt":"2026-04-02T00:22:12","slug":"amy-coney-barrett-destroyed-the-case-against-birthright-citizenship","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/559201\/","title":{"rendered":"Amy Coney Barrett destroyed the case against birthright citizenship."},"content":{"rendered":"

Sign up for Executive Dysfunction<\/a>, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law\u2014and how the law is pushing back.<\/p>\n

Wednesday\u2019s Supreme Court arguments over birthright citizenship went very poorly<\/a> for Donald Trump. The president watched from the front row as a majority of the justices expressed deep skepticism toward his executive order seeking to deny U.S. citizenship to the American-born children of many immigrants. He walked out of the courtroom midway through arguments and later ranted<\/a> on Truth Social that the nation is \u201cstupid\u201d for protecting this fundamental right. Trump is not a sophisticated legal observer, but even he seemed to understand that the case is not going to go his way.<\/p>\n

There was no single turning point against the administration at arguments\u2014but one exchange between Justice Amy Coney Barrett and Solicitor General John Sauer may have locked in the government\u2019s loss. On a special Slate Plus bonus episode of Amicus<\/a>, co-host Mark Joseph Stern discussed this pointed exchange with Evan Bernick, a professor at Northern Illinois University College of Law and co-author of a significant amicus brief<\/a> in the case. A preview of their conversation, below, has been edited and condensed for clarity.<\/p>\n

Mark Joseph Stern: Justice Barrett had a lot of skeptical questions for the solicitor general. And she really drilled down on his theory that children do not receive birthright citizenship if their parents lack \u201cdomicile\u201d in the United States or hold \u201callegiance\u201d to a foreign power. She asked how the government would know whether certain immigrants intended to stay in the country or maintain loyalty to a foreign power. And where would we draw the line? What about, for instance, the child of a woman who\u2019s illegally trafficked into the U.S. then gives birth here? Is that person an automatic citizen?<\/p>\n

Sauer kept returning to his claim that the lone purpose of the 14th Amendment\u2019s citizenship clause was to overturn Dred Scott and grant citizenship to newly freed slaves and their children. But then Barrett asked: What about slaves who were brought to this country illegally and against their will, as many were? Surely some of them still \u201cfelt allegiance to the countries where they were from\u201d and intended \u201cto return as soon as they can.\u201d So wouldn\u2019t their children be excluded from birthright citizenship, too? And if so, doesn\u2019t that just blow up Sauer\u2019s theory that the whole point of this clause was to protect the citizenship of these exact people?<\/p>\n

Evan Bernick: Justice Barrett likes to show why history supports a rule that makes sense rather than doing history just for the sake of history. She wants to show how there\u2019s latent wisdom to the rule that was incorporated into this history. And for Barrett, that is the rule of jus soli\u2014the idea that if you\u2019re born in a place and governed by that place, you\u2019re a citizen of that place. If you have that rule, you don\u2019t have to worry about the \u201cdomicile\u201d or \u201callegiance\u201d of people who were illegally trafficked.<\/p>\n

She made very clear that she viewed the children of slaves through the lens of unlawful immigration. She thought that the situation of enslaved people\u2019s children was not something that could be settled on the basis of any domicile requirement. Because if we think about domicile as \u201cpresence with intent to remain,\u201d well, enslaved people didn\u2019t intend to remain anywhere! They were taken. They were forced into a place. So domicile can\u2019t be the rule, because then you can\u2019t unproblematically grant citizenship to the children of formerly enslaved people.<\/p>\n

<\/p>\n

\"\"<\/p>\n

\n Mark Joseph Stern
\n If Trump Was Trying to Intimidate the Supreme Court on Birthright Citizenship, It Backfired Miserably
\n Read More\n <\/p>\n

<\/a><\/p>\n

Just to draw this out: Sauer\u2019s argument is that if people came here illegally, their children don\u2019t get birthright citizenship. Barrett responded: OK, but many slaves were brought here illegally, and everyone acknowledges that the point of the 14th Amendment first and foremost was to grant citizenship to them and their children. So this felt like the moment that Sauer completely lost the case, because he had to admit that his chief theory cannot be squared with what he himself acknowledges the 14th Amendment was ratified to do.<\/p>\n

Yes. And I inferred another implication from what Barrett was saying: If domicile is the rule, and domicile requires that you have the permanent intention to stay in a place, enslaved people who were forcibly imported into the country against their will did not have an intention to stay there. So if we\u2019re going to tie the status of children to whether their parents are \u201cdomiciled,\u201d under Sauer\u2019s own theory, why would the children of formerly enslaved people be citizens at all? The citizenship clause would not accomplish its most basic function of overruling Dred Scott.<\/p>\n

<\/p>\n

If Trump Was Trying to Intimidate the Supreme Court on Birthright Citizenship, It Backfired Miserably
\n <\/a><\/p>\n

<\/p>\n

The Actual Danger of Trump\u2019s Phony Vote-by-Mail Executive Order
\n <\/a><\/p>\n

So I think that is what\u2019s going on with Barrett. She read the briefs. She has a firm idea about the distinction between two very different theories of citizenship: jus soli, based on soil, and jus sanguinis, based on descent. The former is much less complicated than the latter. The framers of the 14th Amendment had good reasons to use the less complicated one. And we have good reason to keep it, because it prevents all these very complicated problems from subsequently arising.<\/p>\n

Barrett did ask tough questions of the ACLU\u2019s Cecillia Wang, who argued against Trump\u2019s order. She really pressed Wang on whether Congress could expand the limited classes<\/a> that do not receive birthright citizenship. What did you make of that?<\/p>\n

Wang took the position that the set of exceptions to birthright citizenship is closed. Congress can\u2019t create new exceptions to birthright citizenship, but it can get rid of old exceptions. And Barrett was unsatisfied with this, because Wang didn\u2019t really elaborate a theory about it. So it came off more as \u201cthis is good policy\u201d rather than \u201cI\u2019ve got text and history on my side.\u201d And Barrett wondered where this closed set came from.<\/p>\n

But you still think this case will probably come down 7\u20132 against Trump with Barrett in the majority?<\/p>\n

Absolutely. Barrett was outright hostile to the solicitor general\u2019s arguments. I just think her professor mindset was triggered by some of Wang\u2019s answers.<\/p>\n

<\/p>\n

Sign up for Slate’s evening newsletter.<\/p>\n","protected":false},"excerpt":{"rendered":"Sign up for Executive Dysfunction, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to…\n","protected":false},"author":2,"featured_media":559202,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18],"tags":[23,84789,60243,12,790,38068,18861,3,6843,15304,21,19,22,20,25,24],"class_list":{"0":"post-559201","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-united-states","8":"tag-america","9":"tag-amy-coney-barrett","10":"tag-constitution","11":"tag-donald-trump","12":"tag-immigration","13":"tag-judiciary","14":"tag-jurisprudence","15":"tag-news","16":"tag-slate-plus","17":"tag-supreme-court","18":"tag-united-states","19":"tag-united-states-of-america","20":"tag-unitedstates","21":"tag-unitedstatesofamerica","22":"tag-us","23":"tag-usa"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/559201","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=559201"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/559201\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/559202"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=559201"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=559201"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=559201"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}