This is Bloomberg Law with June Grao

from Bloomberg Radio.

With President Trump sitting in the

first row of the gallery watching

Supreme Court justices from across the

ideological spectrum appeared skeptical

that an executive order he issued hours

after his inauguration last year could

be squared with the Constitution and

federal law. The 14th amendment has long

been understood to guarantee citizenship

to virtually everyone born on US soil.

But Trump's executive order would upend

that and restrict birthright citizenship

to babies with at least one parent who's

a US citizen or a green card holder.

Several justices called the Trump

administration's arguments quirky and

obscure, among other things. Here are

justices Elena Kagan and Neil Gorsuch.

Where does this principle come from?

Allegiance, doicile,

uh,

allegiance. I think you point to a

Lincoln funeral speech as your primary

example of where this principle comes

from. It's certainly not what we think

of when we think of the word

jurisdiction.

>> And and the stuff you have about

unlawfully present, it's like Roman law

sources you're going to. And Chief

Justice John Roberts dismissed Solicitor

General John Sauer's contention that the

country faces a new world in which

so-called birth tourism was undercutting

the historic understanding.

>> We're we're in a new world now as

Justice Leto pointed out to where 8

billion people are one plane ride away

from having a a child who's a US

citizen.

>> Well, it's a new world. It's the same

constitution. and justices Katanji Brown

Jackson and Amy Coney Barrett asked

about the practicalities.

Just how would the executive order be

applied in practice given the

determination would depend at least in

part on how long parents intended to

stay in the United States? Because now

you say your rule turns on whether the

person intended to stay in the United

States. And I think Justice Barrett

brought this up. So we bringing pregnant

women in for depositions. what what are

we doing to figure this out?

>> I can imagine it being messy in some

applications. So, how what would you do

with what the common law called

foundings? You know, the the thing about

this is then you have to adjudicate. If

you're looking at parents and if you're

looking at parents doicile, then you

have to adjudicate both residents and

intent to stay. What if you don't know

who the parents are? Trump's executive

order would affect an estimated 250,000

children born to undocumented immigrants

and temporary visitors each year. My

guest is Leon Fresco, a partner at Honda

Knight. He's the former head of the

Office of Civil Immigration Litigation

in the Obama administration. Leon,

explain what Trump's executive order

would do. So the executive order is

actually a little bit complicated in the

sense that what it does is it says that

if you are an adult in the United States

and a child is born from you, that

child's citizenship is going to be based

on a very complicated set of tests, but

essentially you're going to need one

parent who is at least a lawful

permanent resident of the United States

at the time of the child's birth. Now,

the arguments today don't actually jive

with that executive order.

>> The language of the 14th amendment is

all persons born or naturalized in the

United States and subject to the

jurisdiction thereof are citizens of the

United States. So, the key issue here

revolves around the interpretation of

those words. The 14th amendment, which

was passed obviously as part of the end

to the civil war, basically said that if

you were born in the United States, you

are a US citizen so long as you are

subject to the jurisdiction of the

United States. And so there were some

initial exceptions that were sort of

understood in the common law

historically as people who were not

subject to the jurisdiction of the

United States which were children of

diplomats, invading armies, enemy

occupiers.

Those were the historical groups of

people that were considered not subject

to the jurisdiction of the United

States. But, and this wasn't spoken

about at all during the oral argument,

but I think it's very important for your

listeners to understand the history of

this. If you were just some random

person in the 1860s who entered the

United States and just got here, there

was no thing called deportation or

admission or inspection. So if you just

arrived here from England or Ireland or

wherever in the 1860s, if you were here

for 5 years and could get some witnesses

to testify to that in a judicial

proceeding, you could naturalize to

become a US citizen. And at that time

there was no debate or dispute that

someone who was born here wouldn't even

have to do that. they would just be a US

citizen unless they were a slave or a

child of slaves. So the question is

where do we go now in a world where

there is this process that you have to

be admitted lawfully into the United

States if you're not born here in order

to enter? Where does that interface with

this 1860s amendment which says that

you're only a citizen if you're subject

to the jurisdiction of the United

States? And that was the debate that the

court was having today.

>> The solicitor general faced a barrage of

skeptical questions. What was his main

argument?

>> So his main argument is not necessarily

that quote unquote an illegal immigrant

or an undocumented person who has a

child can't be a US citizen. That's sort

of the policy argument. The government's

position was that subject to the

jurisdiction of the United States means

that the person has to have a doicile in

the United States in order for them to

be able to pass citizenship on to their

children when they're born here. And the

way they define doicile isn't just that

you have a house here or a physical

presence, but they say you have to have

the legal right to be able to reside

here indefinitely, meaning there can't

be an expiration date on your status,

the legal capacity to form a permanent

allegiance to the United States, and

that you've submitted to that full

sovereign authority. So they add all of

these definitions onto the word subject

to the jurisdiction of the United States

and they say that that's what doile

means because there was a case called

Wongar Kim from 1898

which held that a child born in the

United States to non-citizen parents was

a citizen at birth. But in that case,

they mention doicile 20 times. And it's

unclear why that case mentions doicile

20 times. But nevertheless, it does. And

the court was debating why it said that.

But in the end, the government says

because it mentioned that word doicile

so many times, it must mean something.

And so the government's position is that

if the Wong Arc Kim Supreme Court case

said you have to be doiciled in the

United States in order to be given US

citizenship that that must mean

something. And so that's their argument.

And certainly there were some justices

who seemed interested in that argument.

They didn't just automatically discount

it much like every lower court basically

shunted aside these arguments. The

Supreme Court seemed much more

interested in these arguments.

>> Yeah. One of the judges who found the

executive order unconstitutional,

Seattle Judge John Kunau, called it

blatantly unconstitutional and said,

quote, "It boggles my mind that a lawyer

could argue to the contrary." But here

we have a few Supreme Court justices

seeming to go down that rabbit hole.

Justice Alo certainly seemed interested

in it. Any other justices?

>> Well, Justice Alo, Justice Thomas, I

think were interested in it. And then I

think that Justice Gorsuch was trying to

engage with the argument as was Justice

Kavanaaugh and the question is I think

Roberts and Coney Barrett not as much.

So, if we were going to get to the

latter part of this discussion in terms

of a forecasting, I don't know where the

fifth vote would be for the Trump

administration. But nevertheless, they

were all asking questions about why this

word doicile was being used in the Wong

Arim decision. And from that standpoint,

we're trying to get at maybe was there

really something here to the

government's argument that yes, you had

to be doiciled in the United States in

order to be someone who can actually

confer citizenship onto your children.

The ACLU's lawyer seemed to have the

greatest problem with answering the

justice's questions about doicile,

>> right? Because what the court was asking

her is why was this being used so much?

And could it be, and this was Justice

Alo's question, could it be that the

reason it was being used was because in

the historical example that I gave you,

while it was true that anybody from

Ireland or England or Norway or Denmark

could just arrive in the United States

and naturalize and become a US citizen.

That wasn't true for Chinese nationals.

They were the one group that was subject

to exclusion and potentially deportation

due to race-based restrictions. And so

the question was, would the child of a

Chinese national who was trying to live

here permanently and was owing no

allegiance to China, would that child be

given US citizenship? And so what

Justice Alo's point was in a scenario

like that where the person had entered

legally and had done everything right

but just couldn't become a citizen

because the laws prevented them from

proceeding any further that the holding

of Wangar Kim should be limited to that.

It should be limited to a scenario like

that where you entered legally, you've

done everything you can and that's it.

So in that scenario, your child would be

a US citizen. But there were a lot of

complicated questions that then derived

from there which I think justice Coney

Barrett asked a very interesting one

with regard to how slavery worked and

how it interfaced with human trafficking

because she asked what if in the 1860s

or or after you know the slave owner

illegally trafficked slaves into the

United States would those children have

been US citizens?

And the solicitor general said, "Yes,

that's the whole point of this law." And

so then Justice Con Barrett asked,

"Well, what if someone was the

modern-day equivalent of a slave now?

They were human trafficked into the

United States. Why wouldn't those

children then be citizens of the United

States, even if the executive order

wouldn't cover them? Because they would

only cover citizens and residents of the

United States." And the solicitor

general didn't have a good answer for

that question. He said, "Well, we can

figure out a humanitarian exception to

this, but that's not really what the

executive order does." And so from that

standpoint, I think what's going to

ultimately make the difference is going

to be how you try to apply something

like this in practice. And I think there

were questions there from Justice

Jackson, uh, Justice Roberts, and

Justice Coney Barrett about these

concepts of, hey, you're going to take a

very simple bright line rule and you're

going to try to figure out all of these

various permutations of it where people

might end up with citizenship and might

not. And I think that's ultimately going

to be what troubles members of the court

to say that the executive order is not

valid. But it's going to be very

interesting in terms of the analysis

there.

>> The Supreme Court seemed poised today to

reject President Donald Trump's attempt

to roll back birthright citizenship in a

case that was magnified by his presence

in the courtroom. Conservative and

liberal justices question whether

Trump's executive order declaring that

children born to parents who are in the

United States illegally or temporarily

are not American citizens could be

squared with either the Constitution or

federal law. Trump heard as his

solicitor general John Sauer faced one

skeptical question after another. The

14th Amendment guarantees citizenship to

anyone who's born in the United States

and quote subject to the jurisdiction

thereof. The solicitor general argued

that the provision applies only to

people who have a direct and immediate

allegiance to the United States and have

established doicile in the country. The

Chief Justice had some problems with his

argument. You obviously put a lot of

weight on subject to the jurisdiction

thereof, but the examples you give to

support that strike me as very uh

quirky. You know, children of

ambassadors, children of enemies during

a hostile invasion, children on

warships, and then you expand it to the

whole class of um uh illegal aliens are

are here in the country. I'm not quite

sure how you can get to that big group

from such tiny and sort of idiosyncratic

examples.

>> In a series of decisions, lower courts

have struck down the executive order as

unconstitutional. The decisions have

invoked the Supreme Court's 1898 ruling

in Wong Kim Arc which held that the

USborn child of Chinese nationals was a

citizen. And conservative Justice Brett

Kavanaaugh, a Trump appointee, cited

that ruling in questioning whether the

executive order was legal under federal

statutes enacted in 1940 and 1952.

>> By the time of the 1940 and 1952

congressional actions

um where Congress repeats subject to the

jurisdiction thereof. Given Juan Kimark,

one might have expected Congress to use

a different phrase if it wanted to try

to disagree with Juan Kimark on

what the scope of birthright citizenship

or the scope of citizenship should be.

And yet, Congress repeats that same

language knowing what the interpretation

had been.

>> No court has accepted the Trump

administration's argument. I've been

talking to immigration law expert Leon

Fresco of Holland Knight. Leon, as we

were saying, a lot of justices asked

questions about the multiple references

to doicile in that 1898 decision. Is

there a legal definition of doicile in

the immigration laws?

>> Well, I mean, normally it's just that

you live there. That's when when we're

talking about doicile for the purposes

of, you know, service of process or

where you uh have jurisdiction of the

court. The court doesn't say, "Oh, you

had this car accident in in Maryland,

but you're undocumented, and so now you

cannot be sued because you don't have a

doicile in Maryland." They don't say

that. They allow you to be sued because

that's the state of your doicile. or you

were operating this fraud operation out

of New York State, but because you were

here illegally, you were not able to set

up a doicile. They don't ask that that

question, that second question about

whether you were here legally or not,

and did that prevent you from having a

doicile. The doicile normally just means

where you are residing. And so this is a

new unique thing that the government is

arguing which is that being here legally

is a prerequisite to being able to form

a doicile in the United States.

>> When we first heard about this Trump

executive order and the birthright

citizenship, it it seemed absurd and

legal scholars were talking about how

this, you know, wouldn't pass muster. At

the beginning of the solicitor general's

argument, Justice Kagan said his

arguments were obscure and the chief

justice called them quirky, but it

seemed like by the end more justices

were giving it credence than I thought

initially would.

>> Yes, I agree. I did not think that the

pace of the argument went very well, but

I actually think, and we haven't touched

on this yet, but I actually think

perhaps it was a strategically genius

move for President Trump to attend the

oral argument because I think that by

him attending the oral argument, it

actually made the questions from the

conservative justices perhaps in a tone

that they wouldn't have been had he not

been there. And I think from that

standpoint, it definitely may have

impacted the way that argument went. I

do think the argument presented by the

solicitor general might have been more

sharply contested by the justices had

President Trump not been there, but I

think they didn't want to upset him or,

you know, I just think people are

sensitive to these human dynamics. It

will be interesting to see what actually

comes out of the decisionmaking process

versus the oral argument. Whereas

usually you can tell a lot more from the

oral argument. It's possible that this

oral argument moved a bit into the world

of theatrics. I do think though that

even though the questions were subtle,

there were some very difficult questions

and I think one of them and this sort of

touched on the major questions doctrine.

And by the way, for your listeners, the

major questions doctrine is a doctrine

that was created out of this Trump

majority Supreme Court that basically

says if you're going to have something

like a regulation or an executive order

that interprets the statute, and the

statute is ambiguous, you're going to

need something better than that for the

regulation or the executive order to

actually have power. You're going to

need Congress to come in and say it if

it's a really important deal. And so,

you can't have anything more important

than citizenship. And so someone asked

the question to the solicitor general,

what kind of evidence do we need after

150 years of thinking that there was

birthright citizenship in America to

change it all of a sudden? Like how can

we do that on the basis of just one

president's executive order when for 150

years we thought it was one way? If this

was so obvious, why did it go on for 150

years? you know, what is the level of

evidence we would need to overturn that

on the basis of an executive order

rather than Congress weighing in and

changing it? And I didn't think that the

solicitor general really answered that

question. I think the solicitor general

just said, "Well, you don't have to

overturn anything. This was always how

it was and this was the way the Supreme

Court thought it was also." And just

basically trying to edge around the

question. But I think if the court

really focuses on that question, which

is sort of a corollary of the major

questions doctrine, which is, is this

really an ambiguous question, which I

think if you're at five to four or

something, you have to say is an

ambiguous question. And you even had

Justice Gorsuch say this is a mess.

There's good arguments on both sides.

And you had some other justices say

that. And you had Justice Kavanaaugh

talking about the statute because

there's two things. There's the

Constitution and there's a statute which

says the same thing as the Constitution

which was passed in the 1940s after

there was already 80 years of this

belief that you had birthright

citizenship. So if you didn't think

there was birthright citizenship, why

would you pass the same exact words in a

statute in 1940? If you wanted to change

it, you would change it. And so the

argument is based on all of that

history, why would an executive order be

sufficient given this major questions

doctrine to change it? And I think

that's going to be the ultimate argument

that the court's going to have to

struggle with that plus the

administraability

aspect of this.

>> Leon, explain some of the problems in

administering it. What do you do in all

of these edge cases where, you know,

someone was smuggled into the country,

someone's an applicant for a green card,

but they haven't gotten their green card

yet, but they are an applicant for it.

What, you know, what do you do in all of

these cases? And there, the

administration is not going to have very

good answers with regard to those

questions. And I think the court's going

to have to decide, well, maybe it

doesn't care about those administra

questions. or it says, look, at the end

of the day, if we're going to go down

this road, and they may do this, they

may they may potentially say at the end

of the day, maybe Congress can have

something to say about this, but it will

need to say something about this, and we

won't do it ourselves. So, if Congress

wants to change the way that the

birthright citizenship law work, there's

enough wiggle room there to define what

subject to jurisdiction means. But

Congress is going to have to do that and

that may be a ruling that the court

makes.

>> So, Justice Kavanaaugh said, "We'd like

to decide the statutory question rather

than the constitutional question." So,

if they based it on a statute, would

they base it on that 1940s law you're

talking about?

>> Correct. They may say one of two things.

They may either say that the 1940s law

is ambiguous and based on the major

questions doctrine go back to Congress

and Congress has to figure out if they

don't want certain people to get

citizenship or not. Or they may say that

the 1940s law is completely clear. And

what the 1940s law says is we knew for

80 years that there was citizenship that

was given to people who are born in the

United States. And we didn't change it

because if we wanted to change it, we

would have written words that were

different. But we wrote the exact same

words as part of a larger statutory

scheme because it wasn't just those few

words. That was one basis in which you

would get citizenship and then it added

other bases. So like it said if you were

born abroad but one of your parents was

a US citizen and they'd lived here for 5

years they could give you citizenship.

So there was a bunch of ways but the

first way was you were born here and

that was the first law and that law

mirrored exactly word for word the

constitution. And so again if they

didn't think that that was true after 80

years of that being true they would have

tried to change it. so unclear. And the

solicitor general's answer was, "Well,

they thought it was what it was in the

1860s." And what it was in the 1860s was

that you didn't get birthright

citizenship. Well, okay. But that's not

really what happened. That's not true.

And so I don't know where that puts the

solicitor general. But so I do think if

it's a statutory decision, then the

statutory decision would be not in favor

of the government. And that's why the

government said, "If you're going to

rule against us, please use the

statutory decision." Because then what

that would do is it would punt the issue

to Congress to say potentially the

Constitution doesn't prevent Congress

from clarifying who is subject to the

jurisdiction for the purposes of

citizenship. And so now Congress can go

and regulate in this matter if it wants

to. And that would be fascinating. they

would then punt the issue back to the

Congress. And I could see if the

government's going to win that being

their win. I don't see them upholding

this executive order. I don't see that.

I don't see five votes for saying this

executive order is fine. But I think a

win for the government would be that the

Constitution hasn't frozen birthright

citizenship in perpetuity forever. But

what it has done is it has given

Congress the ability to say who is

subject to the jurisdiction of the

United States. And we'll see. We'll see

what happens.

>> Leon, what's your account of the

justice's positions?

>> I think there's three for sure in terms

of validating the executive order, which

are Justice Brown Jackson, Justice Kag,

and Justice Stomayor. There's Thomas and

Alo for sure in upholding the executive

order. And then the question is Justice

Robert, Justice Gorset, Justice

Kavanagh, Justice Con Barrett. And I

think Robert asked enough question

talking about the kooky nature of the

government's executive order that he

would be the fourth vote to invalidate

the executive order. And I think

Kavanaaugh is trying to build a

coalition around this statutory argument

which I think ultimately may carry the

day because he may be the fifth vote

concurring in the judgment essentially

that the executive order is void but he

may say it's void because Congress

hasn't done something but Congress could

do something. And I think there would be

four votes for that for sure. I don't

know where Justice Con Barrett would be.

I think her discussion about the human

traffic thing and her history in the

past with being friendly toward foreign

national cases in other areas leads me

to think she's not a fan of this

executive order in any way, shape, or

form. So she might be a fifth clean vote

for invalidating the order on

constitutional grounds, but I could

actually see no majority on invalidating

the order on constitutional grounds, but

a majority on invalidating the order on

either constitutional or statutory

grounds with concurring opinions trying

to figure out which one works and which

one doesn't. I'm not sure why they took

this case, opening a can of worms, sort

of.

>> I really think they wanted to get some

finality. It was an issue of incredible

importance. The Trump administration

asked them to take the case. And it is

very, very, very rare that when the

solicitor general asked the Supreme

Court to take a case, they don't take

it. Sometimes it happens, but it's very,

very, very rare. So, they wanted to

bring some finality to this, but they

may end up really sort of jinning up all

the sides to this if they do what I

think they're going to do, which is punt

it to the Congress and say, "Hey,

Congress, if you want to put some some

limits to this term of jurisdiction,

then doicile. Go ahead, have at it."

Now, will the Congress ever pass such a

law? Will there be 60 votes? Would it be

worth for the Republicans to finally

abandon the filibuster in order to do

this? Would it be the kind of thing

where if you abandon the filibuster, it

would literally change who was a citizen

depending on who was in Congress at that

time? It could end up being completely

crazy. We'll see. But we've seen enough

dramatic change from this court on other

issues that I don't put it past them to

to allow this to happen. I thought it

would they would have to pass a

constitutional amendment in order to

change what the 14th amendment says.

>> So, so one outcome would be and this is

what they asked the ACLU lawyer and what

Cecilia Wong was saying is it's frozen

in time. That's it. The exceptions that

we know are the only exceptions and the

constitution bans any future exception.

So that's the ruling that the foreign

national wants in this case, that the

ACLU wants, that the immigration

advocates want. That's what they want,

that Congress has no power on this. But

that doesn't have to be the ruling. The

ruling could be that Congress does have

the power within limits to regulate who

is subject to the jurisdiction of the

United States given that this issue of

immigration and nationality was not an

issue in the 1860s. And so we will allow

Congress to regulate in this space, but

it has to be Congress. It can't be an

executive order. And so the executive

order is thrown out because from that

standpoint, the court is still happy

they threw out the executive order. No

confusion is caused. Anything that

happens later is subject to the

political process, but it's not dead

because if you make it constitutional,

then it's dead forever. But if you make

it statutory, you at least allow this to

be a political thing. And I really do

think that there are some justices on

the court that are bothered enough by

the concept of birth tourism, which is

where people pay to have their children

in the United States, and other things

of this nature that they do want to

leave the possibility open that there

could be some remedy for this other than

a constitutional amendment because they

know that that would be killing it

otherwise. That's why for some reason if

you put a gun to my head I would say

that they're going to try to figure out

some way not to make it a completely

frozen in time constitutional question.

But we'll see. We'll see what happens.

>> We'll see by the end of June. Thanks so

much for spending so much time with me,

Leon. That's Leon Fresco of Honda night.

And that's it for this edition of the

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