MUST-SEE: Solicitor General Schools Justice Jackson During High-Stakes Birthright Citizenship Hearing

Solicitor General John Sauer sparred with Justice Ketanji Brown Jackson on Wednesday as the Supreme Court heard arguments in the Trump administration’s high-stakes fight over birthright citizenship, with Jackson pressing Sauer on whether his reading runs headlong into longstanding history and precedent.

Jackson framed the administration’s position as requiring the court to accept two major premises about what the 14th Amendment’s framers meant by citizenship, then argued Sauer faces “hurdles” clearing both.

“Good morning, general. So I guess I am looking at your position in this case, and it boils down to requiring us to do at least these two things. One is believed that the framers were not importing the common law rule and understanding of birthright citizenship. And the second is to believe that what they were doing was departing from that common law rule in the way that you suggest, that is, in the they were seeking to have this turn on domicile. I think you have a number of hurdles to accomplish those two things,” Jackson said.

Jackson then pointed to early Supreme Court history to argue the term “allegiance” had already been understood in a way tied to territorial jurisdiction, not a broader concept of personal loyalty.

“One of which I think is that when we look at this court’s case law and no one I think has mentioned Schooner Exchange. But it appears that that was an 1812 case in which it seems as though the court had already accepted at the time of the ratification of the 14th Amendment, that the allegiance that you were talking about was the English common law rule, that, in other words, allegiance meant, that you are, covered by the laws of the jurisdiction that you can rely on the jurisdictions protection,” she continued.

Jackson said Sauer’s view redefines “allegiance” in a way that cuts against that earlier understanding, and she challenged him to explain why the court should assume the 14th Amendment’s framers were not adopting what the Supreme Court had already treated as the operative definition.

“Now, you’re saying today. No, no, allegiance meant something about loyalty or that kind of idea. But if the Supreme Court had, prior to the 14th Amendment, established that allegiance meant the common law definition, I think your first hurdle is to help us understand why we would believe that when the common when the 14th amendment was ratified, the framers weren’t just incorporating what we had previously said it meant,” she said.

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The exchange was one of the sharper moments of the hearing, as the justices weighed the Trump administration’s push to narrow who automatically becomes a U.S. citizen at birth under the 14th Amendment.

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