Cato Experts Available Following Today’s Supreme Court Birthright Citizenship Arguments

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“Chief Justice Roberts had the line of the morning when he said, “It’s a new world, but it’s the same Constitution.” That really does sum up why the government’s policy-based arguments had no bearing on the constitutional question.

“Today’s oral argument focused on the original public meaning of the Fourteenth Amendment’s text, which is the correct approach. And a clear majority of the Justices were unconvinced by the government’s argument that this meaning has been misunderstood for over 150 years. As multiple Justices noted, the government’s argument is very difficult to square with the reasoning of the Supreme Court’s Wong Kim Ark decision from more than a century ago. Yet the government did not even ask the Court to overrule that decision if the Court interpreted it to protect traditional birthright citizenship.

“Based on today’s argument, it seems that the most likely outcome is a simple opinion reaffirming that the Court meant what it said in Wong Kim Ark: those born on U.S. soil are U.S. citizens, with very rare exceptions for those who are to some extent exempt from following U.S. law. I expect the challengers to the President’s order will receive somewhere between 6 and 8 votes in their favor.”

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“The United States is an immigrant-assimilation machine partly because birthright citizenship makes all their US-born children equal under the law. The legal arguments in favor of continuing birth-right citizenship are solid; the social case is overwhelming.”

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“The implications of ending birthright citizenship for the rights of Americans are stark. Not only would it expose some native-born Americans to deportation, but it would also deny all Americans the use of their birth certificates as the only foolproof defense against immigration arrest, detention, and removal. Especially with the administration carrying out papers-please profiling throughout the country, ending or curtailing birthright citizenship would imperil the rights of every natural-born American citizen, regardless of ancestry.”

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“As Justice Barrett suggested in today’s oral argument, the Trump Administration’s rationales for denying birthright citizenship to children of undocumented migrants would also have denied it to numerous freed slaves and their children. That goes against the main purpose and original meaning of the Citizenship Clause. It is, by itself, sufficient reason to reject the administration’s position, even aside from all the many other reasons why that position is wrong.”

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