(WASHINGTON) — As President Donald Trump looked on during an unprecedented visit to the Supreme Court, a majority of justices appeared skeptical of his administration’s bid to end birthright citizenship during arguments in the landmark case Wednesday.

Most of the court’s conservatives and all three liberal members raised doubts about the constitutionality of Trump’s Day 1 executive order that would limit American citizenship at birth only to those born to U.S. citizens and legal permanent residents.

It would also impose sweeping changes for all new parents and current American citizens going forward, requiring a new system to verify a person’s citizenship beyond a simple birth certificate.

The 14th Amendment, ratified in 1868, says all “persons born or naturalized in the U.S. and subject to the jurisdiction thereof” are citizens. Congress later codified the same language in federal citizenship law in 1940 and again in 1952.

Solicitor General D. John Sauer argued that the phrase “subject to the jurisdiction” applies only to children whose parents have “allegiance” to the U.S., which he said is determined by being “domiciled” in the country.

The meaning of ‘domiciled’

The 1898 landmark Supreme Court decision in U.S. v Wong Kim Ark, widely considered to be the precedent affirming birthright citizenship, concluded, “The [14th] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

Sauer said “domiciled” means living in the U.S. lawfully with “intent to stay.”

But many of the court’s conservatives questioned how that definition was derived and whether it aligned with the views of the framers of the 14th Amendment and members of Congress who codified the citizenship clause.

Trump — the first sitting president to attend the high court’s arguments — was seated in the front row of the public gallery alongside White House Counsel David Warrington, Attorney General Pam Bondi and Commerce Secretary Howard Lutnick.  

As Sauer parried with the justices, Trump sat attentive and expressionless. His presence in the chamber was not publicly announced or acknowledged by any of the justices on the bench. While Justices Ketanji Brown Jackson, Brett Kavanaugh, and Elena Kagan were most immediately in his line of sight, it was not clear whether any justice on the bench made eye contact with him. Trump also did not engage with anyone seated beside him or in the chamber.

Trump departed the chamber as ACLU Legal Director Cecilia Wang was in the middle of delivering her opening statement, in which she argued that the principle of birthright citizenship was enshrined in the Constitution to prevent government officials from stripping citizenship away.

“Ask any American what our citizenship rule is, and they’ll tell you, everyone born here is a citizen alike,” Wang said. “That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”

“If you credit the government’s theory, the citizenship of millions of Americans past, present and future could be called into question,” Wang said.

‘Very quirky arguments’

Sauer got a somewhat frosty reception from at least two key Supreme Court Justices — Chief Justice John Roberts and Associate Justice Neil Gorsuch — during his arguments, in which he contended that the longstanding understanding of the 14th Amendment is incorrect.

“The citizenship clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children whose allegiance to the United States had been established by generations of domicile. Here, it did not grant citizenship to the children of temporary visitors or illegal aliens who have no such allegiance,” Sauer said.

Roberts noted that the Trump administration is relying on “very quirky” arguments, saying they are using “narrow exceptions” to claim that a much broader class of people should be ineligible for birthright citizenship.

“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 illegal aliens 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,” said Roberts.

Gorsuch also remarked that the Trump administration seems to be relying on outdated “Roman law sources” and court precedents that do not work in their favor.

“I’m not sure how much you want to rely on Wong Kim Ark,” Gorsuch remarked about the landmark 1898 case that enshrined birthright citizenship.

Justice Elena Kagan similarly voiced concerns about the sources cited by the Trump administration.

“You’re using some pretty obscure sources to get to this concept,” she said.

‘Illegal immigration’

Justice Samuel Alito initiated a discussion on “illegal immigration” by noting that it was “something that was basically unknown” at the time when the 14th amendment was adopted in the 1860s.

“What we’re dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration,” Alito said. “So how do we deal with that situation when we have a general rule?”

Sauer responded by agreeing with Alito, saying that “illegal immigration did not exist [then],” and “the problem of temporary visitors didn’t exist.”

Sauer pointed to “commentators” from 1881 to 1922 who, he claimed, were “uniformly saying the children of temporary visitors are not included.” He argued that this logic “naturally extends” to those who enter the country illegally.

Justice Kagan challenged Sauer’s argument on immigration, saying his arguments in his brief did not focus on “illegal immigration.”

“Most of your brief is about people who are just temporarily in the country where there was quite clearly an experience of an understanding that there were going to be temporary inhabitants,” Kagan said. “And your whole theory of the case is built on that group.”

“You don’t get to talking about undocumented persons until quite later, and at much lesser … I think it’s like 10 pages to three pages or something like that,” she said.

When asked about how the Trump administration would apply their birthright citizenship executive order, pointed to a guidance document from the Social Security Administration issued last year.

“How does this work? Are you suggesting that when a baby is born, people have to have documents present in the delivery room?” Justice Jackson asked.

“I think that’s directly addressing the SSA guidance that cited in our brief, what SSA says,” Sauer responded.

Justice Jackson appeared skeptical of that response, pressing Sauer about the steps of the process and whether a parent could challenge a final decision.

“We’ll give you a social security number, provided that there’s the system [that] automatically checks the immigration status of the parents — which there are robust databases for — and then it appears no different to the vast majority of birthing parents,” Sauer said.

Birth tourism

In his opening statements, Sauer laid out one of the Trump administration’s key arguments about why birthright citizenship should not be extended to the children of undocumented immigrants, claiming that if it remains “unrestricted” it will continue to be a “pull factor for illegal immigration” and would “reward” immigrants who violate immigration laws.

“It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States,” Sauer said.

The Trump administration has often claimed that birth tourism — the idea that foreign nationals travel to the U.S. with the sole purpose of having a child here — poses a national security risk and undermines birthright citizenship.

Justice Roberts pressed Sauer to explain how common the problem is, but Sauer was unable to give a clear answer.

“No one knows for sure. There’s a March 9 letter from a number of members of Congress to DHS saying, ‘Do we have any information about this?’ The media reports indicate estimates could be over one million, or 1.5 million from the People’s Republic of China alone. The congressional report that we cite in our brief talks about certain hotspots, like Russian elites coming to Miami through these birth tourism companies,” Sauer said.

Sauer went on to claim that media reports indicate there are 500 “birth tourism companies” in China, prompting Justice Roberts to interject to ask if Sauer agreed that had “no impact on the legal analysis before us.”

“We’re in a new world now as Justice Alito pointed out, to where 8 billion people are one plane ride away from having a child who is a U.S. citizen,” Sauer added later.

In a statement Wednesday morning, ACLU Executive Director Anthony D. Romero addressed Trump’s attendance at the proceedings, saying Trump would “watch the ACLU school him in the meaning of the Constitution and birthright citizenship.”

“Any effort to distract from the gravity and importance of this case will not succeed. The Supreme Court is up to the task of interpreting and defending the Constitution even under the glare of a sitting president a couple dozen feet away from them,” he said.

Wednesday’s arguments concluded after about two hours. A ruling in the case isn’t expected until the end of June.

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