Donald Trump made history today by being the first sitting president to attend oral arguments at the Supreme Court. He also made history by being the first president to run away from the Supreme Court building as soon as it seemed he was losing. His solicitor general and former personal lawyer, D. John Sauer, tried valiantly to defend his patently lawless executive order stripping the Fourteenth Amendment’s right of birthright citizenship from the children of anyone the government deems an illegal immigrant. But justice after justice — including the three Trump had appointed in his first term — kept blowing holes in his argument.

“That’s not textual, so how do you get there?” Amy Coney Barrett asked at one point. John Roberts called the examples of exceptions to birthright citizenship that Sauer cited “very quirky.” Neil Gorsuch, perhaps the biggest nerd in Supreme Court history when it comes to treaties with Native American tribes, seemed to catch him completely off guard when asked if Native Americans could be birthright citizens under the administration’s argument. (“I think so?” Sauer replied, before changing his mind twice.)

“We’re in a new world now… where eight billion people are one plane ride away from having a child who’s a U.S. citizen,” Sauer tried arguing at another moment.

“Well, it’s a new world. It’s the same Constitution,” Roberts responded.

Some journalists, ready as always to jump in and clean up Trump’s messes for him, have taken pains to point out that “several of the conservative” justices also asked probing questions of the ACLU lawyer arguing on behalf of the immigrant respondents (and the Constitution), indicating that the outcome is still not “fully clear.” (Thanks for the tip, guys!) I would not put anything past the conservative justices on this court (or even several of the liberals, as evidenced by their ridiculous decision this week in Chiles v. Salazar). Still, if you ask me, it sounded like a 7-2 decision in the making in Trump v. Barbara for striking down the executive order.¹

What is patently untrue, on the other hand, is the assertion by New York Times Supreme Court reporter Abby VanSickle² on the newspaper’s live blog that the case is “legally complicated.” This may, in fact, be the simplest case, legally, ever to come before the Supreme Court.³ The citizenship clause, the framers’ intent, and the subsequent case law around it could not be clearer — not to mention the obvious dangers and social chaos that stripping citizenship from an entire class of children would cause. If there were any doubts about whether the Fourteenth applied to all immigrants — even those whose parents would face deportation, or “temporarily” as the Trump administration, borrowing from Dominican would-be ethnic cleansers, are trying to claim all illegal immigrants are — those were evaporated 128 years ago in United States v. Wong Kim Ark, a case Sauer said the administration doesn’t even want to overturn.⁴

And when I say easy, I mean easy. I could argue it, and I’m not a lawyer. In fact, I did, over a year ago. I’ll reprint it below.

First though, relatedly, as some of you have no doubt noticed, I’ve been slower on the send button lately. That’s because I’m racing to finish my next book, The Legend of Skokie, which will examine the wild true story behind a failed Nazi march through a heavily Jewish neighborhood in 1977 and its implications for fascism and free speech today. So you may be hearing from me less than you like for a month or two. But I’m still here, working like crazy. And your subscriptions — especially those of you who support The Racket with a paid subscription — make this work possible.

Also, here are two other articles I wrote on birthright citizenship when this foolishness came up in Trump’s first term:

Here’s my piece from January 2025:

Laws are sometimes complicated. This one isn’t. The right to U.S. citizenship by birth on U.S. soil is enshrined in the first line of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That citizenship clause, drafted in the immediate aftermath of the Civil War and ratified along with the rest of the amendment in 1868, was primarily intended to overrule the infamous decision in Dred Scott v. Sanford from before the war, which had ruled that members of the “African race” could not be citizens of the United States.

It also came as part of a wave of jus soli — or “right of the soil” birthright citizenship laws — that were being implemented across the Western Hemisphere: in El Salvador in 1841, the Dominican Republic in 1865, in Argentina in 1869, and so on. These laws were based on both emerging liberal ideals — that everyone had equal rights, including an equal opportunity to become citizens — and the needs of settler-colonial states, whose peoples did not necessarily have deep ancestral ties to the land, and depended on arrivals of immigrants to provide wealth and labor.

Those prerogatives often came in conflict with one another: some emphasizing the liberal part, and others trying to keep jus soli for the children of white immigrants while reining it in for others in favor of European-style blood-and-soil racial hierarchy. An example of that contradiction would be the government’s treatment of Native Americans, who even with the provision of the 14th Amendment, and despite coming from tens of thousands of years of native birth would not be granted U.S. citizenship until an act of Congress in 1924 — long after the era of major territorial theft and “Indian removal” was over.

The contradiction was also evident in the debates over the 14th Amendment. That white babies born on U.S. soil were automatically citizens, including children of parents with foreign citizenship, had been considered a fundamental fact since independence. Now Black babies would be birthright citizens too. The only question was whether other colors of babies and babies of non-European foreigners would be citizens, and it seems that both sides of the debate over the amendment agreed on the answer: Yes. Racist opponents thought this was another reason to vote against the amendment. Its liberal proponents simply didn’t have a problem with it.²

Future generations of white supremacists kept looking for a test case to blow a hole in the citizenship clause. They found one in 1895 when Wong Kim Ark, the San Francisco-born 22-year-old son of parents from Guangdong, China, tried to return to California from a trip abroad, only to be arrested by a racist customs chief and held for deportation on grounds that he wasn’t really a citizen. Wong’s case made its way to the Supreme Court. Despite being the same court that had in the meantime given legal sanction to Jim Crow, the justices were capable of reading, and found 6-2 that, yup, the 14th Amendment conferred automatic citizenship on Wong and basically anyone else born in the U.S. (I wrote about the Wong Kim Ark case in more detail during Trump’s first term.)

This is high school-level constitutional law. Even James Ho, the wildly reactionary federal judge who is a front-runner to be one of Trump’s upcoming Supreme Court nominees, had to admit in a 2006 law review article that, “Birthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”

But that wasn’t the end of the story. Unable to bar nonwhite naturalization, white supremacists focused on limiting immigration instead, passing racist immigration laws and quotas, many of which were overturned by President Lyndon Johnson and the 1965 Hart–Celler Act. They also tried limiting citizenship in other ways, such as refusing to grant constitutional rights, including citizenship, to the residents of Puerto Rico, the Philippines, and other islands conquered by the United States starting in 1898 under the so-called “Insular Cases.” Some, like Puerto Ricans, were eventually given citizenship by statute; others, like people in American Samoa, are still not granted automatic citizenship to this day. If Trump succeeds in annexing Greenland or Panama, you should expect to see such citizenship exemptions built into those situations as well.

Just as 19th Century white supremacists didn’t give up after the passage of the 14th Amendment, and the 20th Century kind didn’t surrender after U.S. v. Wong Kim Ark, 21st Century reactionaries aren’t going to stop trying to turn back the clock by over 150 years. Trump’s lawyers and defenders are trying to exploit the appositive—”subject to the jurisdiction thereof”—by claiming that both “unlawful” and, somehow, “temporary” residents aren’t subject to U.S. laws while they are in the United States.

This is legally ridiculous. In a 1982 case called Plyler v. Doe, the Supreme Court struck down a Texas law that prohibited undocumented children from attending public schools. Justice William Brennan, writing for the majority, found that “use of the phrase ‘within its jurisdiction’ confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State,” and that this applies regardless of whether that “person's initial entry” was legal or not.

Rather, the only jurisdictional exceptions found by the court—also talked about during the ratification debates over the amendment—were for the children of diplomats not subject to U.S. laws, invading armies, and Native Americans, whom as noted above the U.S. government presupposed were subjects of their tribes. The bit about invading armies is another loophole the MAGA right is eager to test: Judge Ho, in an effort to walk back his inconvenient former comments, has tried referring to undocumented immigrants’ babies as “children of invading aliens,” and thus ineligible for citizenship after all. But Chinese immigrants like Wong Kim Ark’s parents were also described as “an unarmed invasion” at the time, which the court didn’t find disqualifying. It’s also a strange argument coming from Ho, himself an immigrant, whose parents brought him as a child from Taiwan, thanks to the overturning of quotas by LBJ.)

But jealously guarding social hierarchy isn’t about reason or law, it’s about power. And that’s why Trump made one of his first acts back in office trying to live out the dream of nativists since the end of the Dred Scott era. In an era of perceived declining resources and climate catastrophe, nations face two options: expand the distribution of resources and support more equitably and widely, or try to reduce it by narrowing the definition of who counts as a citizen, if not a human being altogether.