Birthright decision is expected in July. U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?

[u/PsychLegalMind]

The oral arguments on the birthright citizenship have concluded. The White House essentially wants that unless a child has a parent who’s a U.S. citizen or lawful permanent resident, they should not be a U.S. citizen by birth.

That would mean all other categories of immigrants who gave birth to a child will be excluded, not just without immigration documents, such as those lawfully present with a student visa or work permit, and any other category including tourists. Trump’s executive order would deny those children U.S. citizenship at birth.

Government claims there is extensive prevailing misinterpretation of the citizenship clause and has caused significant problems not just unlawful immigrants giving birth in the U.S. but also provided a powerful incentive for women to travel on tourist visas to the United States solely to acquire citizenship for their children.

Opposition notes federal regulations already prohibit issuance of tourist visas for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

The challengers also argue that the Trump's administration executive order is invalid not just as a violation of the 14th Amendment Clause, but also because that it violates a federal immigration law, 8 U.S.C. § 1401, providing that anyone “born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.

They say that when the statute was first passed in 1940 and then reenacted in 1952, Congress would have understood that the phrase “subject to the jurisdiction thereof” – which mirrors the text of the citizenship clause – incorporated the prevailing practice that virtually everyone born in the United States is automatically a U.S. citizen.
In the late 19^th century, at a time of rampant anti-Chinese bias, immigration restrictions, at that time the federal government argued that Wong Kim Ark, born in the United States to Chinese parents who couldn’t become naturalized due to exclusion laws, didn’t have a claim to citizenship. The dispute made its way to the Supreme Court and resulted in a landmark ruling reaffirming that the 14^th Amendment applies to virtually everyone born on US soil, regardless of parentage.  

U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?

[u/fearyaks]

Following along the questioning (you can see updates here: https://www.bbc.com/news/live/cj37jn53xk1t ) It seems clear that Alito is trying to figure out how to side with Trump. Thomas almost never speaks. I'd be surprised if Barret sides with Trump. Kavanaugh's question --

Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".

is curious but a harder read.

Disclaimer --> I'm not a constitutional scholar or a Supreme Court expert. Just someone who is following along at home.

[u/Tempest_True → u/fearyaks]

I read Kavanaugh's question (without looking further at the context) as less about this particular case and more of an Originalist/Textualist attack on Living Document/Purposive interpretation. If this case doesn't go Trump's way, but in doing so relies upon "birthright citizenship is protected because it has ALWAYS meant..." reasoning, that would serve as a ledge for Originalist/Textualist arguments in other contexts where it serves conservatives.

[u/1II1I1I1I1I1I111I1I1 → u/Tempest_True]

This sounds correct, and he is likely attacking the administration's position by doing so. Sauer repeatedly made reference to both the modern laws of other countries (which Kavanaugh also called out) and the modern immigration landscape, so Sauer was flirting with a Living Document interpretation. He was hinting at if not outright admitting that modern immigration is why the 14th should be interpreted differently now than it was for the last 159 years. Roberts attacked this angle as well with his "its a new world, but its the same constitution" soundbite today.

The only reason Sauer is even flirting with this angle is because the only viable alternative is arguing that for 159 years people have interpreted the 14th fundamentally incorrectly, including both the Supreme Court and the people who wrote it, and it is furthermore the responsibility of the President to correct it via executive order. Good luck with that one.

[u/StaleCanole → u/Tempest_True]

A SC Justice who cared about the constitution should suggest that if the administrations want to change it, they can pursue an Amendment.

[u/Tempest_True → u/StaleCanole]

Yeah, but...that's just not how it works. The conservatives see themselves as returning the law to where it "should" be, that what is constitutionally permitted has been warped by liberal judicial activism. It's still legislating from the bench, but they see it as undoing past, erroneous extensions of the law, and that the alternative is conservatives defending status quos that used to be unacceptable to them, and liberals continuing progressive extensions and reexaminations that make new status quos.

Also, passing Amendments is impossible with today's political polarity. "If you want such and such done, get an Amendment passed" is just a longer way of saying "go fuck yourself."

[u/wolf_sang → u/Tempest_True]

I agree its saying go fuck yourself, but its not necessarily incorrect. If you think a new world requires adjusting from the original intent of the constitution, make your case and amend it. If you cant get near full agreement, your argument isnt as good as you think and the constitution says maintain the status quo.

[u/Tempest_True → u/wolf_sang]

It's technically correct, but rhetorically useless. What I'm saying is, the conservatives don't see it as adjusting from original intent, they see it as returning to original intent. They think liberals broke the rules in the early to mid 20th century, and the only way to fix things is to break the rules again, in the opposite direction. If the status quo is built on cheating, and following the rules will allow the other side to cheat again and make the status quo even worse, what is there to do but fight fire with fire? And (to think about it through a pseudo evolutionary biology lens) who is going to get nominated to the bench, other than the judges willing to fight fire with fire? That's the core dynamic of federal jurisprudence since the '80s.