Last week, in the high-stakes hearing, Solicitor General John Sauer appeared to take legal hit from all sides during his time defending President Trump’s executive order that states a foreign child born on U.S. soil cannot automatically become a U.S. citizen.
At issue is the 14th Amendment, adopted in 1868 after the U.S. Civil War to address freed slaves. The amendment replaced the infamous 1857 ruling in Dred Scott v Sandford that found African slaves living in the U.S. were not citizens.
The legal issue is further complicated by a second 19th century ruling. Back in 1898, the high court ruled on behalf of a Chinese-American, Wong Kim Ark, who was born to Chinese parents in California.
Sauer predictably fielded tough questions from the liberal justices, including a bizarre story about a U.S. citizens visiting Japan from Ketanji Brown Jackson. But legal analysts noticed Justice Gorsuch showed a combative tone, too, such as dismissing the importance of the Wong Kim Ark ruling when Sauer cited its.
“That is a very powerful, unfortunate signal to be sending,” attorney Ken Cuccinelli, the former Virginia attorney general, told “Washington Watch.”
If the administration wins, he said, it will be a narrow 5-4 win in President Trump’s favor later this summer.
During an appearance on the “Jenna Ellis in the Morning” show, attorney Mike Donnelly said Sauer did a good job describing how the 14th Amendment is being openly exploited by birth tourism. That is the unscrupulous business that brings thousands of pregnant Chinese women to the U.S. to give birth to children who are U.S. citizens.
Donnelly, who has thoroughly studied the legal issue of citizenship, pointed to the legal arguments over the wording in the 14th Amendment. It reads:
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.
Donnelly told show host Jenna Ellis the “and” phrase about being “subject to the jurisdiction” is key. In the arguments last week, he said, the ACLU lawyers attempted to skip that part, or downplay it, as a person being present on U.S. soil.
“Well, clearly if you're born here, you're present,” Donnelly countered. “So it can't mean the same thing as just mere physical presence. It has to be something else.”
Donnelly did not predict a court vote, like 5-4 or 4-5, but he also commented Gorsuch had been tough on the Solicitor General. The key votes in the ruling will be Chief Justice John Roberts and Justice Amy Coney Barrett, he predicted.
