‘But What About the Constitution?’ Amy Coney Barrett Warns of ‘Messy’ Outcome If Trump Wins Birthright Case

Supreme Court Justice Amy Coney Barrett questioned Solicitor General John Sauer during oral arguments on Wednesday on exactly what an end to birthright citizenship might look like in practice, which the Trump administration is pushing for.

Coney Barrett began the exchange by asking, “OK, let’s talk about its applications. So there are some — I can imagine it being messy on some applications. So what would you do with what the common law called foundlings? The thing about this is, then you have to adjudicate — if you’re looking at parents, and if you are looking at parents’ domicile, then you have to adjudicate both residence and intent to stay. What if you don’t know who the parents are?”

Sauer replied, “I think there are marginal cases. That one, I think, has the benefit of being addressed in 1401-F, where it talks about—”

“Yeah, yeah, yeah. But what about the Constitution?” cut in Coney Barrett.

“Under the Constitution — I mean, look, domicile is a constitutional standard in all kinds of other situations. Diversity jurisdiction, personal jurisdiction,” Sauer answered.

Coney Barrett pressed on, “Well, yeah, in personal jurisdiction — I mean, 1332, diversity jurisdiction. And the thing is, it has to be litigated because it turns on intent. And both jus soli and jus sanguinis — whichever one you pick — it’s a bright-line rule. How would it work? How would you adjudicate these cases? You’re not going to know at the time of birth, for some people, whether they have the intent to stay or not — including US citizens, by the way. I mean, what if you have someone who is living in Norway with their husband and family, but is still a US citizen, comes home and has her child here, and goes back? How do we know whether the child is a US citizen because the parent didn’t have an intent to stay?”

Sauer answered, “I’d say make two points — one practical, one legal. The practical point is, under the terms of this executive order, you don’t have to, because the executive order turns on objectively verifiable things, which is immigration status: are you lawfully present but temporarily present, or do you have an illegal status?”
He concluded:

So that kind of taking evidence as to subjective intent wouldn’t be done. And as to the constitutional point, obviously domicile is baked into a lot of constitutional and legal concepts, and there may be situations where facts are determined. But if you look at the guidance — the guidance that all the agencies issued after this Court in CASA said the agency could go forward to issue guidance — the guidance provides, I think, very clear, objective, verifiable approaches to doing this. And so, as a practical matter, I don’t think it’s presented by this executive order.

Watch the clip above via CNN.

New: The Mediaite One-Sheet "Newsletter of Newsletters"
Your daily summary and analysis of what the many, many media newsletters are saying and reporting. Subscribe now!