Is Birthright Citizenship at Risk? Inside the Supreme Court Battle

0:00Hey everyone, it's me, Morgan Stewart, and I have a new podcast called The Morgan Stewart Show. Join me each week as I talk about pop culture, fashion, my personal life, and just a warning, I'm going to be giving my opinion on everything. I'll also have some really fun guests to join in on the fun. The Morgan Stewart Show is out now, listen and follow wherever you get your podcasts or watch full video on YouTube. Not every sale happens at the register. Before AT&T Business Wireless, checking out customers on our mobile POS systems took too long. It's basically a steering contest where everyone loses. It's crazy what people say during an awkward silence. Now transactions are done before the silence takes hold. That means I can focus on the task at hand and make an extra sale at two. Sometimes I do miss the bonding time. Sometimes. AT&T Business Wireless, connecting changes everything. All persons born or naturalized in the United States are citizens of the United States.

1:12All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. Do not let your eyes glaze over. This is a biggie. Tomorrow in the Supreme Court of the United States, an argument over birthright citizenship, Amy Howe is, of course, the co-founder and primary reporter for SCOTUS blog and joins us with a preview. Amy, thank you so much for being here. I know you'll be awfully tied up tomorrow, so I thought it was perfect to get to you today. Good morning. Thanks for having me on again. It's always great to talk to you. You agree. This is a biggie. Right? This may be, you know, along with the care of decision, one of the biggest cases of the term, and certainly one of the biggest cases, I think, probably in a couple of years. Well, let's get into it. What does it have to do? And by the way, I loved your analysis, and we've already linked to it in our daily newsletter under the headline, the key arguments in the birthright citizenship case. But I think I'll begin with this. What's it got to do with slavery?

2:14Yes. So the citizenship clause is what's at the center of this case. And that is what, you know, for a century now, everyone has always interpreted as guaranteeing citizenship to basically everyone who's born in the United States. The citizenship clause is part of the 14th Amendment, which was enacted in 1868. And it was added to the Constitution to overrule the Supreme Court's decision in Dred Scott, which held that black person whose ancestors were brought to this country and sold as enslaved persons was not entitled to any protection from the federal courts, because he was not a U.S. citizen. So, you know, it was intended in no small part to make clear that formerly enslaved people and their children were U.S. citizens. And the Trump administration says, look, we need to get back to the original meaning of

3:17the 14th Amendment, which was just to deal with formerly enslaved people. It was not intended to confer citizenship on everyone who happens to be born in the United States. Amy, this is some old stuff. Dred Scott was 1857. The 14th Amendment gets added to the Constitution in 1868. The Wong-Kim-Arch case is from 1898, doesn't the age and the fact that nobody's rocked the boat from then till now suggest the court will be reluctant to establish precedent like this on an executive order? I mean, certainly the 1898, the Wong-Kim-Arch case that you talk about, you know, that is one of the challengers' main arguments. They say, you know, whatever the purpose of the 14th Amendment may have originally been in the 1898 decision that the case of Wong-Kim-Arch, this was a man who was born in San Francisco to parents who were of Chinese descent, but were not U.S. citizens.

4:19He went to the visit China. He came back to the United States, immigration officials said he can't come in the country. He's not a U.S. citizen. And the Supreme Court said, yes, he absolutely is a U.S. citizen. The main purpose of the 14th Amendment may have been to establish the citizenship of black people, including formerly enslaved people, but it applies to everyone with some minor exceptions for the children of diplomats. You know, if we are in a time of war, people who are occupying the country, their children don't get U.S. citizenship. And at the time, there were some exceptions for Native Americans that have since been dealt with through a law passed by Congress in the 20th century. You refer to the challengers. So who are the challengers? In this case, the Trump administration, and he did it on January 20, 2025, the day of his inauguration, through executive order, the administration has attempted to, through executive order, overturn the last century of interpretation of birthright citizenship.

5:25Who is it that's challenging this? So there were all kinds of lawsuits brought all over the country challenging the executive order. And as some of your listeners may recall, we had a case before the Supreme Court in May of last year that arose from the challenges to birthright citizenship, but did not actually involve birthright citizenship itself. It was what's known as universal injunctions or nationwide injunctions, which was the idea that district courts can issue an order that blocks the administration from enforcing an executive order or policy anywhere in the country. So the Supreme Court ruled on that to district courts normally can't issue these kinds of orders. So then the case is continued. And this is a class action out of New Hampshire in which a district judge certified a class of babies who would be born and would be affected by this order. So it's babies, essentially, whose parents are not undocumented immigrants or in this

6:31country temporarily. And so under this order, their children would not have citizenship, whereas under the current interpretation that has been in place for over a hundred years, they would have citizenship. I take it that the solicitor general, John Sauer, is going to argue for the government. Who will argue for the challengers arguing for the challengers is to steal your Wang of the ACLU, which has been involved in many of these cases and is representing the challengers in the New Hampshire case. There's a tendency for many of us to look at the court and say, well, it'll be another six to three decision. Talk to me about the personalities among the justices and how you think they will look at this case. You know, this is one where it's kind of suede generis because, certainly, we haven't had a case like this in a long time. I mean, my inclination, there's been a lot of people say, well, this should be nine nothing. This is a case. You know, this is long, established law.

7:33My sense is that maybe it might be 72 with justices, justices, Clarence Thomas and Samuel Alito as the dissenters, you know, for example, at the oral argument in the universal injunctions case, which was called Trump versus Casa last year, some of the conservative justices, it was primarily about universal injunctions, but some of the conservative justices, you know, had concerns about the underlying merits of Trump's order, you know, justice for at Kavanaugh, for example, expressed concerns about how, you know, the birthright to the citizenship order would work, you know, if you have, essentially, like the logistics. So it's really hard to tell. So I think everyone is really sort of waiting for the oral argument to get a better sense of how this might play out. When I referenced Dred Scott, when I talked about 1868, when the 14th Amendment was added to the Constitution or the Wong Kim arc case from 1898, I was focused on history, but I also want to ask Amy Howell from SCOTUS blog, the text, the text, because a lot of the

8:38focus is going to be on the words subject to the jurisdiction. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. What does that mean subject to the jurisdiction thereof? That is kind of the debate. I mean, the Trump administration's argument is that when you're talking about subject to the jurisdiction thereof, the people who are in the United States temporarily aren't really subject to the political jurisdiction that the federal government doesn't sort of have power over them. And because they point to the Wong Kim arc case, and you know, I think their argument would be that they're not so much asking the Trump, the Supreme Court to overrule the Wong Kim arc and saying that it's different because Wong Kim arc's parents were Chinese nationals living in the United States. They still owed an allegiance at that point to the emperor of China. I think the challengers' contrary argument would be that many of the people who would be

9:43affected by the Trump administration's executive order are living in this country for long periods of time. They're not necessarily here temporarily. And they are sort of fully subject to the power of the US government. And so, you know, I think that is something that, again, we're going to have to see what the Supreme Court thinks about how to interpret that. Do you think John Sauer will speak of birth, or pardon me, birth, tourism in his argument? You know, that was certainly something that came up in the Trump administration's brief on the merits and in some of the friend of the court briefs that were filed as an argument that there is a, you know, national security risk, but from people who come to the United States from other countries to have babies and then the idea is that these children with US passport can come and go without the same scrutiny that would apply to foreign nationals.

10:44I think that there is a debate about how prevalent this actually is. I've seen numbers online that range from 20,000 to 2000. I mean, I think that, you know, at just truly as a financial matter, you know, it's expensive to come and stay in the United States long enough to, you know, to have to buy a plane ticket to come here, stay in the United States, you know, give birth, pay for the birth in a hospital and stay for a little while and then leave. But I would expect that it's something that he is likely to raise. Amy Howe was co-founder and primary reporter for SCOTUS Blog, our go-to whenever we can get around the program to talk about an important matter like this. This is the Smirconish podcast from Sirius XM. Hey, everyone, it's me, Morgan Stewart, and I have a new podcast called The Morgan Stewart Show. Join me each week as I talk about pop culture fashion, my personal life, and just a warning, I'm going to be giving my opinion on everything. I'll also have some really fun guests to join in on the fun.

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12:49Quince.com slash Smurconish. Not every sale happens at the register. Before AT&T business wireless, checking out customers on our mobile POS systems took too long. It's basically a steering contest where everyone loses. It's crazy what people say during an awkward silence. Now transactions are done before the silence takes hold. That means I can focus on the task at hand and make an extra sale or two. Sometimes I do miss the bonding time. Sometimes. AT&T business wireless, connecting changes everything. The Michael Smurconish program, listen weekdays at 9 AM east on POTUS, Sirius XM channel 124 at any time on the Sirius XM app. Amy Howe was co founder and primary reporter for SCOTUS blog, our go to whenever we can get her on the program to talk about an important matter like this. Can we also make clear, Amy, that there's another way to do this, right? I mean, this is all about the 14th Amendment to the Constitution and you could amend the Constitution.

13:50It's not easy. Two thirds of the House and Senate or two thirds of the state legislatures, then holding a constitutional convention, it doesn't often happen. It doesn't often happen. There is also an off-ramp if the Supreme Court doesn't want to get into the constitutional nitty-gritty. There is also a statute governing birthright citizenship that the Supreme Court, if it were to decide that, you know, it could decide that Trump's order is inconsistent with a statute that Congress passed in 1940 and again in 1952 that has very similar language that, you know, essentially the Court could say, whatever the purpose of the 14th Amendment may have been. If you look at the language of the statute, you know, the subject of the jurisdiction thereof, we read that to mean what it's meant for the last century and therefore the executive order is inconsistent with the statute.

14:52In other words, they could say Congress has already put its thumbprint on this in 1952 and there's an amicus brief. I know this only because of the Washpoe editorial today from 217 members of Congress. Exactly. Exactly. And, you know, Congress potentially could change the statute if it wants to mean something else that could lead to another legal challenge, but it could be sort of an off-ramp. There is a principle called constitutional avoidance that if you can decide a question without having to interpret the Constitution that you should try to do that. So, you know, that could give the Supreme Court an out. Two final questions. Thanks for being so gracious with your time. Number one, and I'll go through the list when you leave me. I won't make you endure that. But we are an outlier. I've got the lists in front of me from a couple of different sources because there's overlap. In terms of what are the nations without birthright citizenship? And it's a majority of the globe.

15:55That is true. You know, I think it was just a scolio who said that you should interpret the Constitution by looking at what other countries do. You know, we're also an outlier on the death penalty, for example. You know, the words of the Constitution or the words of the Constitution. Right. Good point. Okay. Jeff, wipe the slate clean. Imagine we're having a beer and I ask Amy how, oh, this case tomorrow in the Supreme Court, just could you distill it in a simple question, what will they be deciding? They will be deciding whether or not a provision of the Constitution that everyone has interpreted for over a hundred years to allow almost everyone who is born in the United States to have U.S. citizenship actually allows everyone to have U.S. citizenship. Okay. Not bad. Not bad. So I just kind of curious, where will you be tomorrow?

16:57How will you be, you know, taking this all in? I will be in the courtroom. So closely. So will you paint that picture? I mean, I've never been in the Supreme Court of the United States and I imagine 99 percent of people. I know. I know. I want to go with you. I want to go with you because I think you would know exactly like what door to enter and how to pull this off. But to talk to me about that experience and then I promise I'll let you go. Yeah. I mean, it is a big courtroom. But the lawyers are, the lawyers are much closer to the justices than you would expect and so there's not like people, they tend to speak. There's a microphone so that everyone else in the courtroom can hear them. They tend to speak at a fairly conversational tone. The reporters are relatively close to the lawyers who are arguing and to the bench. We sit sort of perpendicular to the justices and the lawyers who are arguing and everybody

17:59is packed in pretty tightly like sardines on a day like the birthright citizenship case where it's a high profile case. But is it? Is it like concert tickets in the 70s? Do I have to sleep out in my car if I want to be in there? If you want to get one of the relatively few tickets for what's known as the public section, then I would imagine people are already camping out, yes. I think probably for the tickets for the lawyers, you know, one for the terrace case, one of my friends got there at like three o'clock in the morning. You know, it's not as bad for regular cases as it used to be because there is a live audio on the arguments, but for the really big historic cases, people do get there extremely early. It is a nice day today in Washington. I mean, seriously? So there were worst days to camp out. Three o'clock in the morning doesn't phase me. I'm an early riser, but at three o'clock in the morning, there need to be facilities close by. I can't stand there from three. It's a little dicey. Right.

19:00I'd be giving up my place. I'd be giving up my place in line two or three times by the time of the argument begins. Amy, you make friends with your people around you and work it out and hold my place. Can I tell you, you're the bomb. I really appreciate that. What a great briefing. I can't thank you enough. Oh, thanks so much for having me. It's always so much fun to talk to you. Thank you. Amy Howe is the co-founder and primary reporter of SCOTUS blog, T.C., she's awesome. She's just awesome. She is absolutely the best. And she does it in such a, she used the word conversational for how the lawyers in the Supreme Court talk, but that is how she does it. And it breaks it down into such a way that even we know, and again, it's that she knows it all. She never stumbles. No. It's every case law. Right. It's every precedent. I'm working with notes here. Really? I'm working with notes. She's just hitting. She's on her cell phone and root. Yeah. Like, it is insane. I know. I'll say something else. Today's newsletter in this Tuesday newsletter. It's Tuesday.

20:01Yes, it is. So tomorrow, it just occurs to me as April Fool's Day for this argument. Oh, gosh. But in the newsletter today, I purposefully linked to Nina Totenberg for NPR analyzing this as well. She was an excellent guest. I remember talking with her about RBG and Totenberg is just great. So I just feel like we've got you covered in terms of this case. All right. I know this is going to be tomorrow's poll question. This will definitely be tomorrow's poll question, but let's begin the conversation today. And you heard her reference to Justice Scalia who said, we don't interpret the Constitution by looking around the globe. Okay. I get it. But I do find this interesting. I asked perplexity and Google Gemini to list for me the nations that do not have birth right citizenship, just to make the point about what an outlier we are in this regard. Uh, perplexity, countries without it. In Europe and the UK, the United Kingdom, England, Scotland, Wales, France, Germany, Italy,

21:06Spain, Australia, New Zealand, nearly all NATO states, Albania, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Hungary, Iceland, Latvia, Lithuania, my native, Montenegrau, North Macedonia, Norway, Poland, Romania, Slovakia, Slovenia and Turkey. No birth right citizenship. Asia in the Middle East, China, India, Japan, Russia, Iran, Thailand, Saudi Arabia and most others in Africa and Oceana, Egypt, Sudan, South Africa, nearly all except the five that are noted, uh, if I go to Michael, why are you going to a different source if you just gave us perplexity? I don't know. I mean, sometimes this AI is just not as accurate as, as I would like Europe. No European country, no European country currently offers unconditional birthright citizenship most have conditional systems where a child only becomes a citizen. If the parents have lived there for several years or hold permanent residency and then

22:10they speak more specifically about the United Kingdom, about France, Germany, Ireland, Italy, Spain and Greece, uh, most relying on juice sanguinis, which is descent, not, uh, of the soil, Asia, yeah, same listing and Oceana, Africa, et cetera, et cetera, we're an outlier. Now, now listen, when I say we're an outlier, maybe you're like, yeah, that's a, that's a, that's a good thing, um, or you say, why do we do this? You're born here and automatically, you're a citizen. Should that change? I, I got into the weeds on the law, on the history as, as well as the reading of the 14th Amendment, you don't have to get granular. Just tell me if you think it's a good thing that we have birthright citizenship in this country. If we wiped the slate clean and you could write the constitution, would this be in it? This is the Smirconnish podcast from Sirius XS. Hey, everyone, it's me Morgan Stewart and I have a new podcast called The Morgan Stewart

23:10Show. Join me each week as I talk about pop culture, fashion, my personal life and just a warning. I'm going to be giving my opinion on everything. I'll also have some really fun guests to join in on the fun. The Morgan Stewart Show is out now, listen and follow wherever you get your podcasts or watch full video on YouTube. Breathe in, feel the sense of calm that comes from having up to $300 and overdraft protection with go to bank now. Did you say $300? Yes, now, back to our breathing. So if I overspend my balance, go to bank has my back up to $300. Yes, can we breathe out now? Less worries, more Zen, with over $300 and overdraft protection. Tap to open an account today. Eligible direct deposits and opt in required for overdraft protection, fees, terms and conditions apply. Close your eyes, listen to monday.com, feel the sensation of an AI work platform, so flexible and intuitive, it feels like it was built just for you. Now open your eyes, go to monday.com, start for free and finally breathe.

24:13Michael Smirconis program, listen weekdays at 90 am East on POTUS, Sirius XM channel 124 and any time on the Sirius XM app, President Trump's executive order claiming to deny citizenship to children of immigrants in the United States temporarily or unlawfully has been uniformly blocked by lower courts. But come tomorrow, the Supreme Court will hear argument on both sides. It is called Trump versus Barbara. The administration's odds of winning in my view extremely low, but it's a really interesting question. It has to do with the 14th amendment, birthright citizenship, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. This is Brian and San Diego. Hi, Brian, what's your thought? All right, so whether you agree with birthright citizenship or not, it's in the Constitution. So if you wanted to change it, you need to change the Constitution. You can't do it with an executive order.

25:15In fact, if there was a vote, and I'm no fan of Trump, but if there was a vote tomorrow, that gave me the option of ending it, starting on day one, not retroactively, I would probably vote to end it. But again, you need to change the Constitution. You can't change the Constitution with a new executive order. I agree with you in exactly the way that you said it. I don't think it's some racist notion to even have the conversation. Some do. I mean, the vehement with some people approach this issue shocks me. I think it's a legitimate issue to discuss about whether we ought to have it, but you got to do it properly. And this is not doing it properly. Thank you, Brian. Appreciate it very much. Viro Beach, this is Norman. Your turn. Hi. Yeah, no. Birthright is wrong. Birthright is wrong. I mean, we're so filled with bleeding hearts on the one side and the Trump paid on the other side. So whatever Trump does, 50% of the people are going to be voting the other way, because of

26:15Trump. Terrible. The other thing is, the carl area is the people who are here, similarly, the maybe residents, but they will be able to vote or be counted in the sense of some worried about that. Same way. Right. In other words, we do take into account who's here, regardless of their legal status. And you know, the argument is, well, they're drawing on the resources of that area. If you had a community that has a huge population, not right with the law, but nest, but by definition, they're still, they're there and they're, they're putting demands on government. How could you not factor them in when making funding decisions? I didn't say it so clearly, but I've got it pretty, pretty firmly in my head. Andy, you're in California. You're turned. Hi. Hi, Michael. Thanks for having me on. Yeah. I disagree with, with having this argument on the, well, they don't essentially have any argument, but, you know, removing the 14th Amendment, I, you know, you mentioned

27:17right now, you know, where folks make it about race, I can't help but think of it being about race. I mean, it's hard to not think about it because if you look at the history of our country, and we're, you know, where we, you know, where we came from to where we are, and how many territories we're taken, you know, through some we'll call it a legal process or legal treaties. But I mean, it just reminds me of the story of Steven Austin, right, who came from the East Coast and essentially came to Texas and, you know, and, you know, committed essentially genocide amongst the community there who did not want slavery, but regardless of what they did or didn't want, he still moved in and essentially took the territory as a part of that process. So it just, I guess there's a, there's a, there's a historical, a deep historical part to this as to why we got here and, and I think this is kind of a renewed taste to get us back to that point, just kind of full circle. Wait, is this, is this, I'm not sure if I did.

28:21Because you're argument one of, we kind of owe it to the world because of how we got to be where we are today, then consequently, we're going to allow you, if you can touch our soil, pardon me, if you can be born here while touching our soil, then that's going to be just fine in term, we're going to, we're going to pay back the debt by allowing you an easy path to citizenship. Is that your argument? Precisely, that is my argument and, and, and, I mean, yes, we have bad seeds, but let's look at the contribution that, that immigration population has made to society, right? I, I, I mean, there's, there's so much there, and you know, folks who have had the right who have done well, who are now, you know, who, who've come through that process who now are elected officials in our country, high ranking, you know, members of Congress, you know, attorneys, doctors, teachers, I mean, those folks all came on a path that way, and I think, you know, we deserve, you know, they, they deserve that, that, right?

29:21And, you know, we also deserve that, you know, we also need to give them the opportunity, you know, we gave them the opportunity, and now we're at this point to where we're having this discussion and had it not been for that, the 14th Amendment, you know, we wouldn't have that. So, okay, I appreciate the call. I find your argument very interesting, but for me not compelling, the, the idea of we got to pay this back is to me not compelling, because how many other countries were conquerors? I mean, of all, how about, you know, the Sun never sets on the British Empire. It does today, but, but by that standard, then the Brits would have to say, hey, anybody, anybody who comes to the UK, we're going to allow you citizenship, because, because after all, for so, so long, we were just grabbing all the geography we could. Hi, Tom. You're in St. Louis. What did you most want to say? I guess I'm piling on. I, this to me is kind of like any other constitutional amendment, say, maybe the right to bear on arms. You want to change it?

30:23Go through the right channels. And I, yeah. I disagree. It is about race. It's, it comes down to that. You disagree, meaning with what you've heard, with what you've heard from me and from others. And you think it's all just racial animus necessarily from you, because you've brought the subject up from people that I know. As a, just as a question, let's say a land developer, businessman, very wealthy, has multiple children with different immigrant lives who are not legal. Are those children legal? Were they born here? They were born here. Yeah, sure. Then they are. Okay. But under, under this change, would they have been, and will this be grandfather, and will this be grandfather? Well, hey, it's not going to happen, but I, I think in the abs, I know this is all hypothetical,

31:26but it just, it, it just mirrors up some serious hypocrisy that our president has multiple children from women who were not here, who overstayed visas. Okay. We want to, this is your, this is your hypothetical. This is not about Trump. No, no, no, no, no. Okay. Trump is just an example. Trump is just my example. Got it. I mean, it just doesn't seem to, we have chances for this, just because we don't like a law, we have to, we have to follow the chance. I, I, I agree with you. It'll be, I must say the calls are, thank you, Tom, the calls are surprising me. I anticipate that the poll result tomorrow, no matter how I phrase it, will be one of continued birthright citizenship recognition. I'm just saying that asked in the Trump poisons the well, the fact that he wants to get rid of it causes so many people just to line up for or against it without even thinking about

32:29the issue. I'm putting off to the side that, you know, he's the one by executive order who wants to get rid of it. And I am here saying that in my opinion, it is a legitimate debate and conversation to have. And I need to be persuaded that being born here in and of itself is enough to bestow citizenship upon you. I interpret the constitution as providing that guarantee. It's a little ambiguity in it. But yeah, I think the idea that people could play, could, could play birthing tourist does not sit well with me, it just doesn't. I think you should have to have more skin in the game. So John, it tells me on the screen that for some reason your wife will be in the scotus courtroom tomorrow. How come? So her friend is getting sworn into the Supreme Court bar and she gets to bring a guest to oral arguments. They picked April for the cherry blossoms and it just so happened if fell on this case. Oh my gosh, that's awesome. And they don't even have to sleep out at night.

33:30They can just show up, right? Correct. They originally were going to go in April for the cherry blossoms in 2020, but then the whole COVID happened. So they rescheduled it for this year. And then one of the best cases are most consequential cases and some time they get to sit and hear arguments for it. That is really a hot ticket and I'm envious and I think that's wonderful. I hope she has a great day. She's excited. Thank you. Thank you, sir. I need to put this on my own bucket list. I've only been in the Supreme Court building once and that was when Justice Scalia had passed. That was the only time that I had been there. Michael Smirconish for independent mind. Listen weekdays on Sirius XM's POTUS, Channel 124 and anytime on the Sirius XM app. Hey everyone, it's me, Morgan Stewart and I have a new podcast called The Morgan Stewart Show. Join me each week as I talk about pop culture, fashion, my personal life and just a warning. I'm going to be giving my opinion on everything. I'll also have some really fun guests to join in on the fun.

34:30The Morgan Stewart Show is out now, listen and follow wherever you get your podcasts or watch full video on YouTube. See you next week.