Supreme Court Edition, Trump v. Barbara: A Century-Old Argument Against Birthright Citizenship

Summary

Here's the Scoop: Supreme Court Edition

Episode: Trump v. Barbara – A Century-Old Argument Against Birthright Citizenship

Host: Laura Jarrett (NBC News)
Guest: Professor Lucy Salyer (University of New Hampshire, Legal Historian)
Date: May 9, 2026

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Episode Overview

This episode of Here's the Scoop delves into the ongoing Supreme Court case "Trump v. Barbara," which has revived a century-old debate over birthright citizenship. Host Laura Jarrett explores the historic 1898 case United States v. Wong Kim Ark, whose precedent underpins the current fight. Through discussions with legal historian Professor Lucy Salyer and the perspective of Norman Wong, the great-grandson of Wong Kim Ark, the episode unpacks the legal, historical, and human dimensions of what it means to be an American.

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Key Discussion Points & Insights

1. Wong Kim Ark: The Origins of Birthright Citizenship

• Norman Wong shares his family story:
  • Norman’s great-grandfather, Wong Kim Ark, was born in San Francisco in 1873 to Chinese immigrant parents ([00:05]).
  • He learned about his ancestor’s pivotal Supreme Court case almost by accident at age 50 ([01:19]).
• Historic context:
  • Chinese Exclusion Act of 1882 barred Chinese laborers; Wong Kim Ark was denied reentry to the US despite his birthright ([02:50]).
  • The case became a test for whether the child of immigrant parents, born on US soil, is an American citizen ([03:18]).

2. The Precedent: United States v. Wong Kim Ark (1898)

• Supreme Court case:
  • The government tried to exploit a “loophole” in granting citizenship to US-born children of Chinese immigrants ([07:42]).
  • Despite expectations, the Supreme Court ruled in Wong Kim Ark’s favor, affirming that almost anyone born on US soil is a US citizen, regardless of parents’ origin ([03:53], [24:37]).
• Professor Salyer's reflections:
  • “It was really a striking story of a contest between due process equality and...discrimination.” ([06:28])
  • The justices recognized the slippery slope of limiting citizenship based on parentage, which would affect millions of non-Chinese immigrants ([25:42]).

Notable Quote:

“The status of the parents has nothing to do with the status of the child.”
— Professor Lucy Salyer ([24:05])

3. 14th Amendment: Its Purpose and Reach

• Post-Civil War Origins:
  • Created primarily to guarantee citizenship to the formerly enslaved and their descendants ([16:01]).
  • The phrase "subject to the jurisdiction thereof" was meant to exclude only children of diplomats or occupying armies—not immigrants ([18:09]-[18:42]).
• Scope beyond African Americans:
  • “It wasn’t meant just to affect African Americans, but to declare a principle of equality and inclusion.” ([17:19])

Notable Quote:

“If you are born here, your children are born here, even if another country thinks they have dibs on you, we see you as being a US citizen.”
— Professor Lucy Salyer ([19:31])

4. Parallels to the Present: Trump v. Barbara

• Trump’s executive order:
  • Sought to end birthright citizenship for children of undocumented immigrants. Blocked in lower courts, now before the Supreme Court ([04:47]).
  • Administration’s arguments echo those made (and rejected) in the 1890s—including racialized and assimilation-based reasoning ([28:20]).
• Key points at oral argument:
  • Justice Kagan: Challenges reliance on obscure, outdated sources to interpret the 14th Amendment ([29:13]).
  • Chief Justice Roberts: “It’s a new world. It’s the same constitution.” ([30:15])
  • Justice Gorsuch raises practical questions about determining “domicile” ([33:48]), and Justice Jackson on the logistical nightmare of administering new rules ([36:07]).
• Workability and consequences:
  • Professor Salyer: “Bright line rules...are really critical when we’re talking about citizenship, because so much...depends on it.” ([37:04]-[38:25])

Notable Quote:

“Do you really want a country where lots of the people living in your country are not citizens? They are like a nation of aliens instead of a nation of immigrants.”
— Professor Lucy Salyer ([25:53])

5. Human Stakes & Reflections

• Voices of the descendants:
  • Norman Wong: “We take that away, and America is no longer the America that it once was. And I think we will lose a lot for doing that.” ([38:38])
• Potential impact if the precedent is overturned:
  • Salyer: “It would be a devastating message... Birthright citizenship has rested historically, since our founding, on the idea that it is better to be a nation of immigrants, a nation of citizens, than to be a nation of aliens.” ([39:24])

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Memorable Moments & Quotes (with Timestamps)

• Norman Wong (on his family’s understanding):
  “I was born here, born American. Simple as that.” ([00:13])
• Professor Salyer (on government’s argument in the 1890s):
  “They are using very explicitly racial, art and cultural arguments. They argue that...they remain Chinese both in their allegiances...[and] their culture and civilization was fundamentally antithetical and dangerous.” ([21:25])
• Justice Roberts (on changing times):
  “It’s a new world. It’s the same constitution.” ([30:15])
• Professor Salyer (on practical consequences):
  “Bright line rules...are really critical when we’re talking about citizenship, because so much...depends on it.” ([37:04])
• Norman Wong (on the American dream):
  “The people that come here, they're looking for a better future. That was the dream.” ([38:38])
• Professor Salyer (on the nation’s self-concept):
  “...one of its strong points has been this incorporation of many different peoples with this understanding that we can have a diverse society but still all be American.” ([39:24])

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Important Segment Timestamps

• 00:05–04:00: Norman Wong recounts family story; introduction to Wong Kim Ark
• 07:42–13:51: Professor Salyer explains the legal and social context of Wong Kim Ark
• 16:01–19:31: 14th Amendment’s origin, language, and intended breadth
• 21:25–25:53: Analysis of government’s arguments and the Court’s reasoning
• 28:05–32:00: Discussion of Trump v. Barbara, similarities to historic arguments
• 33:48–37:04: Practical problems with restricting birthright citizenship—debate among justices
• 38:38–39:24: Norman Wong and Professor Salyer reflect on the meaning and stakes of birthright citizenship

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Summary

This episode compellingly demonstrates how arguments against birthright citizenship, from the 1890s to now, have been rooted in attempts to exclude and define “American-ness” by ancestry and allegiance. Through historical context and present-day parallels, the conversation illuminated the extraordinary significance of the Supreme Court’s looming decision—not just for children of immigrants, but for the whole American identity. The episode closes with poignant reminders of the power and promise of inclusion and the existential question now facing the country.

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Transcript

[Norman Wong]

When I was a young child growing up, like in San Francisco, and we lived in a mixed community, you know, and we just thought of ourselves as Americans, if that's our understanding of birthright citizenship. It was understanding that all the children of my age had was. I was born here, born American. Simple as that. My name's Norman Wong. I'm retired. I live near San Francisco, about 50 miles away.

[Laura Jarrett]

Like the majority of Americans, Norman Wong is the descendant of immigrants.

[Norman Wong]

I'm the great grandson of Wong Kim Ark. I would say if starting with Wong Kim mark, well, what, 1, 2, 3. There's a couple generations past me, so if I get to include them, what, five generations or more.

[Laura Jarrett]

If the name Wong Kim Ark doesn't ring a bell, you aren't alone. It didn't for Norman either.

[Norman Wong]

I was probably around 50 years old when I found out about birthright citizenship. Wong K. Ma and the Supreme Court.

[Laura Jarrett]

And Norman only found out by happenstance.

[Norman Wong]

I went to visit my father. Apparently, he was visited by, I believe, the local Chinese newspapers. When I say local, he was in the Sacramento area. The stuff that I saw, I couldn't read the papers. And it was explained to me that my father was interviewed extensively and Wong Kim Ark was the reason. And so I didn't fully understand the importance of it or why people were making a big deal.

[Laura Jarrett]

So here's the story. Norman's great grandfather, Wong Kim Ark, was born in 1873 in San Francisco's Chinatown, not far from where Norman lives now. Wong Kim Ark's parents were Chinese immigrants. His father was a merchant. They were lawful residents who wanted to make a life for themselves here. But it was a time of widespread racism against Asian immigrants.

[Norman Wong]

When he was at a young age, his parents took him back to China. That was in 1877. What had happened was that's when Chinatown was burnt down, and a lot of Chinatown Chinese were killed in San Francisco. So they fled that. But he came back, and he came back as a boy.

[Laura Jarrett]

Then in 1882, Congress passed the Chinese Exclusion act, which barred most Chinese people from entering the country. More than a decade later, in 1895, on his way back to the US from China, Wong Kamark was denied reentry into the country. Despite having been born in San Francisco, he was told he wasn't American.

[Norman Wong]

The laws were specifically targeting Chinese. It wasn't something that Europeans had to worry about.

[Laura Jarrett]

Now, at this point, Huang Kamar was in his early 20s working as a cook in Chinatown. He didn't have money or position, but his case ended up going all the way to the U.S. supreme Court, United States v. Wong Kim Ark is the landmark decision confirming almost anyone born on US Soil is a US Citizen. Ra Regardless of where your parents are from.

[Norman Wong]

I wouldn't call him a special man. I'd just call him one of the common men. But he was willing to fight for what he believed in, and that was his right to be an American.

[Laura Jarrett]

But that understanding from 1898 could soon be upended.

[Various Interviewees/Commentators]

Signed an order that will end birthright citizenship for children of illegal migrants. You know, that case is in court right now.

[Professor Lucy Salyer]

Laura.

[Laura Jarrett]

I'm Laura Jarrett, NBC News senior legal correspondent, and welcome to here's the Scoop, Supreme Court edition. For the next few Saturdays, I'm gonna be talking to legal experts about some of the most important cases before the Supreme Court right now that have huge implications for the future of our country. And we're not just talking about current cases. We're gonna look back at the precedents the current cases are built on and how they could determine the outcome of the ones the justices are deciding right now. Today we're talking about Trump v. Barbara.

[Various Interviewees/Commentators]

This is just another way that they get illegal immigrants into our country, and in some cases, very, very bad ones. Go ahead.

[Professor Lucy Salyer]

Thank you, Mr. President.

[Laura Jarrett]

On day one of his second term, President Trump signed an executive order designed to end birthright citizenship for the children of undocumented immigrants. That order, it's never gone into effect. It was blocked in the lower courts almost immediately, but now it's in front of the US Supreme Court, and. And the decision could have a seismic impact on our country. To look back and look ahead, I'd like to bring in Professor Lucy Solier. She's a legal historian at the University of New Hampshire who has spent much of her career focused on the history of immigration law. Professor Salyer, thank you so much for your time. Professor Sawyer, when we started this project and our research for this episode, every journal, every article, every book, every cites you and your work. How did the case of Wong Kim Ark become such a enormous part of your professional focus?

[Professor Lucy Salyer]

Well, I didn't start out to want to study the history of immigration and citizenship policy. I actually was working at the Federal District Court in San Francisco, and I was really interested in learning more about how did lower federal courts work. I was studying at a program at the UC Berkeley Law School, the Jurisprudence and Social Policy Program, and they taught us to look at any law but constitutional law in any courts but the Supreme Court. So when I was going through the docket book, studying the history of this court I was just amazed by the thousands of cases being filed by Chinese litigants. It was surprising to me because I knew that there had been a really hostile and aggressive anti Chinese movement. I knew that the exclusion law had been passed. So I was just really intrigued if these laws were in place. And I assumed that the judges weren't necessarily pro Chinese. How did all these cases get to the court who was bringing them? How did they find attorneys? And then what really struck me is that they often won. And so for me, what really prompted me to get involved was just being really curious about this community of people who had such resilience, who, despite being the stereotype that they would never learn how to be American and how to become part of, you know, learn about American democracy, that here they were using one of the most American of strategies, filing lawsuits, and that it was really a striking story of a contest between due process equality and, you know, discrimination.

[Laura Jarrett]

And who was Wong Kim Ark? Our listeners heard a little bit from one of his relatives. But what actually kicked off the legal battle?

[Professor Lucy Salyer]

The case of Wong Kim, Arkansas arose primarily because the US Government was trying to figure out a way to enforce the Chinese exclusion laws more strictly. So the Chinese exclusion laws, the first one was passed in 1882, and that forbade the entry of Chinese laborers. So there were still other groups that were allowed to come into the United States. Chinese merchants, students, professionals, and so forth. The Congress and the exclusionists who were backing these restrictionist movements started to tighten up those exemptions. By 1889, the Supreme Court had upheld the sweeping power of Congress to exclude anyone they wanted for any reason, and they upheld the constitutionality of the Chinese exclusion laws. What happened after that is that a number of Chinese applicants who are coming into the United States claim that they are born in the United states, therefore they're U.S. citizens, and therefore they do not fall under the Chinese exclusion law. So the US Government is alarmed by these claims, and they initially seek to test citizenship of Chinese Americans with this strategic hope of trying to shut down what they see as a loophole in the exclusion laws. Obviously, for those who are claiming to be Chinese American citizens, you know, they see the issue quite differently. Wong Kim Ark was born in the United States and San Francisco. He did go back and forth to China to see family. And in 1895, he is denied entry into the US because the US government has decided to set up a test case. And he just happens to be the wrong guy at the wrong time. So what would happen is that the collector of the port administer the Chinese Exclusion laws. So he and his inspectors, the so called Chinese inspectors, would board the ship and interrogate the various people on board to see if they had a lawful claim to enter the United States. So when Wong Kim Ark presented himself and he would have had a certificate of return, so there were lots of papers, so he had a certificate that said, my name is Wonka Mark. I was born at this address. And then he had witnesses, white witnesses, who attested to the facts of that, you know, that he was born in San Francisco and that they knew him. And the collector says, okay, we agree you are born here, but we do not think you're a citizen by virtue of your birth. So we are denying you entry. And at that point he is detained on ship while his case is being heard. Somehow, you know, they get the message to the attorneys. They file a writ of habeas corpus, which means he is being detained unlawfully. And that is the legal mechanism by which it gets before the federal district court in San Francisco. And he wins, he wins there. And then I believe he's released on bond at that point so he can come ashore. But of course, it's quite some time before the whole decision is settled.

[Laura Jarrett]

So when you say it's a test case, that's because the US Government wanted to be able to exclude Chinese immigrants. And they thought they would win.

[Professor Lucy Salyer]

I think they hoped they would win. I think that from the beginning it was a pretty bold argument because birthright citizenship had been so firmly entrenched in U.S. law and in U.S. history that it was going to be an uphill battle. But nonetheless, they figured that given the times, it was very. The Supreme Court had just upheld Plessy versus Ferguson, the constitutionality of racial segregation. It had read the 14th Amendment very narrowly. And racial policies, the Chinese exclusion policy had turned out to be really popular. I assume that what they were thinking is that given the political and social environment, that this policy might fly.

[Laura Jarrett]

So that's what Wong Kamar is walking into before the arguments of this have even started. That's the backdrop. How did his case make it all the way up to the Supreme Court?

[Professor Lucy Salyer]

Well, again, this is because the Supreme Court, the U.S. attorney's office in San Francisco, is the one who writes to the Attorney General to say, look, we need a test case. So he urges the Attorney General. At the time, Holmes Conrad was the acting Attorney General. Holmes Conrad was a Southerner by birth. He had been a major in the Confederate Army. He does not like the 14th amendment for not just the birthright citizenship clause, but he feels that this was an amendment that had been forced upon the South. So he is happy to take on cases that limit federal power. And it offers him a chance to hit back at Reconstruction, which he felt had been a terrible time in the US History for white Southerners. So you had a sympathetic attorney general that was sitting in office and the Department of Justice is fully on board. They want to get it to the Supreme Court in the hopes that they'll have better luck there. And at that point, Holmes Conrad is the solicitor General and he will be the one arguing the case before the Supreme Court.

[Laura Jarrett]

We're going to take a quick break and in just a minute, how Solicitor General Holmes Conrad made his case against birthright citizenship and how Wong Kim Ark, the cook from San Francisco, won. Stay with us.

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[Laura Jarrett]

And we're back with here's the scoop SUPREME Court edition. I'm Laura Jarrett, and I'm joined by legal historian Professor Lucy Sawyer, talking about The United States versus Wong Kim Ark, the 1898 decision that's come into sharp focus now at the US Supreme Court. The 14th Amendment obviously figures enormously, not only in this case, but now the birthright citizenship case that the Supreme Court has to decide this term. The 14th Amendment, in terms of the purpose of it originally was about making sure that formerly enslaved people were, in fact, American citizens and their descendants were citizens. How does that then get applied and grafted onto all of these other immigrant groups?

[Professor Lucy Salyer]

It certainly was a direct response to the Dred Scott decision of 1857, in which the Supreme Court had held that African Americans, even if they were free, were not citizens of the U.S. so after the Civil War comes to a close and the 13th amendment abolishes slavery, it becomes clear that the newly freed African Americans need more of an assist from the law because the Southern states had not quite were not on board yet with emancipation, to put it mildly. To put it mildly. So the 14th Amendment seemed to be necessary, especially after the birthright citizenship clause adopted in the Civil Rights act of 1866. This was the first time that birthright citizenship was codified. President Johnson, Andrew Johnson, who takes over as president after Lincoln's assassination, he vetoes that law and when he vetoes it, he says African Americans are not yet ready for citizenship. That's one reason. But he also says this is an alarming development because it means that Chinese will become citizens.

[Laura Jarrett]

So right off the bat, Chinese immigrants are figuring in the debate around this.

[Professor Lucy Salyer]

Absolutely. So the Congress is very aware that the birthright citizenship clauses are, even though the primary purpose is absolutely directed at supporting the citizenship and the rights of African Americans, that it had much broader sweep and it was intended to, you know, you have lots of immigration in this period. It's the beginning of mass migration. Chinese are only 1.5% of the foreign born population, but you had over 4 million immigrants from Ireland and Germany. Many of them had served in the war and had been earlier faced discrimination. So the 14th Amendment is really much broader and was meant to be. It wasn't meant just to affect African Americans, but to declare a principle of equality and inclusion.

[Laura Jarrett]

Let's read the language for everyone. Just so we have a little constitutional refresher here on the 14th amendment. Quote, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. The phrase subject to the jurisdiction thereof is doing a lot of work there, Professor. Yes, for the non lawyers out there, explain what in the world that means.

[Professor Lucy Salyer]

Basically what they were referring to is that there are like a small number of people who would not fall under this birthright citizenship clause. They're referring particularly to children who are born to diplomats who are stationed in the United States or children born to armies that are invading the United States, which didn't have much application. But the first one, there were children born to diplomats when they lived here. But it was widely understood that those diplomats were only subject to their own country's laws.

[Laura Jarrett]

So basically if some other country can lay claim to you and your allegiance is essentially to that other country, then you were not supposed to be guaranteed birthright citizenship under the 14th Amendment.

[Professor Lucy Salyer]

So that is what, in some ways, what the current Trump administration is trying to argue. You could have people, for example, I just mentioned the Irish and the Germans. Often they left their country. Germans often left without permission. They were supposed to get permission before they left their native countries, and then they became citizens of the U.S. so the home countries often didn't recognize that they had left lawfully, and they don't recognize that they are now citizens of the United States. They still say, you owe us your military service. So you do have a conflict there. What the United States has said in this 14th amendment is if you are born here, your children are born here, even if another country thinks they have dibs on you, we see you as being a US Citizen. What does it mean to be subject to the jurisdiction is that you were born in the United States. Upon your birth, you received the protection of the United States and you owe obedience to its laws. So it's really based upon territorial jurisdiction, not a sense of who do I feel loyal to or what's my political allegiance. It's, you're born within the territory, you owe the US Your obedience to its laws, and you receive its protection. And that's what subject to the jurisdiction was largely presumed to mean. The US Government in Montana Market is challenging that. They want a more robust sense. They would say it means you're loyal. It means you have no competing allegiances.

[Laura Jarrett]

So let's talk about what the government was saying back then, because in some ways, it's parallel to what the government is arguing now. The US Solicitor General at the time, Holmes Conrad, who you mentioned, he makes the case on behalf of the government with another attorney, George Collins. What was their main argument?

[Professor Lucy Salyer]

So George Collins and Conrad are arguing the subject to the jurisdiction means that you have full political allegiance to the United States. And they are using very explicitly racial, art and cultural arguments. They argue that even though Chinese Americans are born in the United States, they remain Chinese both in their allegiances, that they have allegiance to the emperor, even if they have never been in China. It feeds into a lot of the arguments that led to Chinese exclusion in the first place, that Chinese were really different from Europeans, that they had no capacity to assimilate, that their culture and civilization was fundamentally antithetical and dangerous in comparison to European cultures and American culture, white American society.

[Laura Jarrett]

And how did those arguments land with the justices at the time?

[Professor Lucy Salyer]

Not well, partly. I mean, I will say that the other argument is that they are, you know, Conrad especially is fighting also against the 14th amendment being read broadly. He wants to narrow national Power. And the Supreme Court really doesn't like that part of his argument. He really challenges the whole spirit of Reconstruction. Again, he's reflecting the late 19th century, the. In the south is trying to rewrite what the history of Reconstruction was like. He says, this was a terrible time in your life.

[Laura Jarrett]

So he's relitigating the Civil War, and they're like, no, no, no, we're done.

[Professor Lucy Salyer]

That's a really good way to put it. Yes. He's saying, and the Supreme Court, that's a step too far. You know, they're willing to uphold racial segregation. They are not willing to go along with sort of the whole ditching of reconstruction. They don't like that. And they also say very strongly that the fact that the parents of Lankamarc could be excluded because of these racist arguments. The law of in the United States about who could become naturalized after they arrive in the United States and become a citizen. It was restricted to white persons. Since 1790, only white persons could become naturalized citizens. And that was an 1870amended to allow descendants of Africans to become citizens. But it had been long held that Asians could not become citizens because they're not white. So what Conrad and Collins are arguing is that this meant that they were an undesirable group. So the status of the parent should affect the status of the child. And the Supreme Court is very clear. The status of the parents has nothing to do with the status of the child.

[Laura Jarrett]

So you say the court back then was pretty adamant about that, but it took them a year to decide Wong Kim Ark's case. Now, there was obviously outside issues that perhaps influenced them, like an election. And what do you think ultimately really tipped the scales in Wong Kim Ark's favor?

[Professor Lucy Salyer]

They're really making a revisionist argument, right? It's the government and Collins. They're making a revisionist argument that just doesn't have legs. Right. When you look at the clear text of the amendment, when you look at the legislative history, when you look at how long the birthright citizenship law had been into place since the nation's founding, the cards were too stacked against the government. I think the final thing, though, that was really important is workability. The court stresses that what the government is asking them to do would have tremendous consequences. It's not just going to affect people like Wong Kamark. He says this is going to affect the children of Swedes, of Englishmen, of Spaniards. So all these European immigrants, all of their children's citizenship would now be thrown into doubt. And that was just, you know, too much for them to countenance. That was going too far.

[Laura Jarrett]

Do you think that that was the bridge too far? The fact that all of these, to put it bluntly, white immigrants could be affected by a rule banning birthright citizenship?

[Professor Lucy Salyer]

I think that was, I think it was really important. And it's also kind of imagining, in terms of policy, do you really want a country where most of the people living or lots of the people living in your country are not citizens? They don't, you know, they are like a nation of aliens instead of a nation of immigrants. That's the kind of road that the government was advocating.

[Laura Jarrett]

Even though the United States lost its case against Wong Kim Ark, it's the very precedent the Trump administration must now grapple with in its case before the Supreme Court.

[Various Interviewees/Commentators]

I would first cite Wong Kim Ark on that point because Wong Kamark says you're. Well, I'm not sure how much you want to rely on Wong Kim Ark.

[Laura Jarrett]

We'll talk about that argument after a quick break.

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[Norman Wong]

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[Laura Jarrett]

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[Various Interviewees/Commentators]

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[Laura Jarrett]

And we're back with. Here's the scoop. Supreme Court Edition. Professor Sawyer, let's move to the birthright citizenship case on the docket today. Trump B. Barbara, were you surprised that the Trump administration decided to do this on his first day in office? Right off the bat.

[Professor Lucy Salyer]

No, I'm now he had made it very clear that this was on his agenda. I hadn't read all of the arguments fully, but once I, you know, once the litigation started and I started reading the briefs, I was really astounded by how much of the arguments were so similar to what had been tried in the 1890s and failed. The sources they were using, which were, had been quite questionable even at the time and which had rested on sort of racist assumptions. To find them going, you know, reaching back to these kinds of sources was a little shocking.

[Laura Jarrett]

Some of those sources came up at oral argument in this case and Justice Elena Kagan in particular was laser focused on them.

[Professor Lucy Salyer]

So the text of the clause, I think does not support you. I think you're sort of looking for some more technical, esoteric meaning. And then the question comes, okay, if the text doesn't support you, if there's a real history of people using it that way. But as far as I can tell, you know, at the time of the 14, you're using some pretty obscure sources to get to this concept.

[Laura Jarrett]

And it wasn't only Justice Kagan. Chief Justice John Roberts also questioned the US Solicitor General John Sauer about his interpretation of the Constitution. Here, listen to this exchange where Sauer is trying to emphasize that the President's executive order was meant to curb so called birth tourism where people are traveling to the US to have babies.

[Various Interviewees/Commentators]

Well, it certainly wasn't a problem in the 19th century. No, but of course 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, a child who's a U.S. citizen. Well, it's a new world. It's the same constitution.

[Laura Jarrett]

Constitution hasn't changed, Professor. But the arguments that the government is making, as you say, are remarkably similar to Wong Kim Ark. Why do you think they're doing that?

[Professor Lucy Salyer]

Well, it would be wonderful to sit down and ask them. I think that part of it is maybe there just aren't other arguments. I'm not sure. I mean to really challenge this idea of what jurisdiction means. They are trying to invest being subject to this jurisdiction as having more a robust kind of content about political allegiance. So I think it feeds into our current anti immigrant moment and a lot of this, you know, you do also see a very similar rhetoric in terms of depicting immigrants as invaders, as menacing. It's very similar language that was used at the time, you know, when you portrayed immigrants and their children as being fundamentally alien and dangerous to the national security and national identity. These kinds of arguments, perhaps for those people who believe those ideas have some more hold. I guess.

[Laura Jarrett]

So this time around, the government is not asking for Wong Kim Ark to be overruled, at least not explicitly.

[Professor Lucy Salyer]

Right.

[Laura Jarrett]

They're basically saying it doesn't apply. And there is a distinguishing factor here that makes their case different than Juan Kim Ark, in particular, the fact that his parents were legally domiciled in the United States. Help me understand the difference that makes.

[Professor Lucy Salyer]

So both the government and Wong Kim Mark's attorneys agreed that his parents were permanent domiciled residents. So the question becomes whether that was critical to the decision or was that just noting that they lived here. Right.

[Laura Jarrett]

The government here wants it to be critical.

[Professor Lucy Salyer]

They do. They see this as being sort of when the court decided the case that was critical to the lawful status and the birthright citizenship of Wong Kim Ark. I think that what was interesting that came out at oral arguments suggested by the justices themselves, that emphasizing the fact that Wong Kim Marc's parents were domiciled was trying to push back against some of the racist cultural depictions of Chinese at the time.

[Various Interviewees/Commentators]

Can I offer a possible explanation for why Justice Gray made a point of putting domicile in what he said was the holding of the case?

[Professor Lucy Salyer]

So one legal commentator, for example, in arguing why children of Chinese immigrants should not be citizens, is that they said they weren't Chinese, weren't domiciled in the US that they would never become permanent because they were sojourners. So one argument that was brought up is, you know, they are. They were permanent residents. They did come to live and to build businesses. So it was trying to push back against that stereotype states.

[Various Interviewees/Commentators]

And so that's what this was about. He couldn't get naturalized because of a racist law, but they had done everything they could to become part of the American society.

[Laura Jarrett]

There's also the question of how you figure it out in the first place. Take a listen to Justice Gorsuch on that.

[Norman Wong]

Whose domicile matters?

[Various Interviewees/Commentators]

I mean, it's not the child, obviously. It's you're. It's the parents you'd have us focus on. And, you know, what if. Is it the husband? Is it the wife? What if they're unmarried?

[Norman Wong]

Who.

[Various Interviewees/Commentators]

Who's domicile? Well, in. In the executive order, it draws a distinction between the mother and the father. It's really the mother's domicile. I think that would matter. Well, but 1868 matters. You're telling us. So what's. What's. What was the answer the 1868 sources talk about parental. I'm not aware of them drawing distinction between mother or father, but they say the domicile of the child felt follows the domicile of the parents. And how are we going to determine domicile? I mean, would we use contemporary sources on what qualifies as domicile in a state, or do we look in 1868 and do we have to do this for every single person?

[Laura Jarrett]

It's interesting to hear Justice Gorsuch, who is obviously appointed by President Trump, really pushing back aggressively on the US Solicitor General there, John Sauer, on how are we going to figure this out?

[Professor Lucy Salyer]

Yeah, I think so, too. And I think he, I mean, it's. There's several really important points that come up there. And one is that, you know, domicile is not an easy legal determination to make. And I know that the bar exam

[Laura Jarrett]

is like chock full of domicile questions that are very hard.

[Professor Lucy Salyer]

Yes, I haven't taken the bar exam, but I trust you on that. And I know that some of the international legal scholars at the time, they're saying, boy, domicile, that's. It's just really hard to, to kind of pin this doctrine down. So that was from the time period. International law scholars find domicile a really tricky question. And it seemed, you know, they didn't talk about domicile during the debates over the 14th Amendment, nor was it part of the Civil Rights act of 1866. So it is a difficult argument to establish as sort of the historical basis for their argument. It also raises the question of status. You know, should the status of the parents determine the status of the kids?

[Laura Jarrett]

The justices also had a fair amount of questions focused on what you might be able to characterize as just the administration of what it would mean to roll back birthright citizenship, sort of just the nitty gritty of how this country operates. Take a listen to Justice Jackson on that issue.

[Professor Lucy Salyer]

How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

[Various Interviewees/Commentators]

I think that's directly addressed in the SSA guidance that's cited in our brief. What SSA says is there's currently a system where, for example, Social Security numbers are generated based on the birth certificate. They say this can still be, for the vast majority of instances, completely transparent. You will still get a transparent.

[Professor Lucy Salyer]

I'm just talking about the particulars because now you say Your rule turns on whether the person intended to stay in the United States. And I think Justice Barrett brought this up. So we bringing pregnant women in for depositions. What. What are we doing to figure this out?

[Laura Jarrett]

How much do you think the practical implications of, of ending birthright citizenship is weighing on these Justices?

[Professor Lucy Salyer]

I think it's probably very important. If you really are hinging it on domicile, as we saw heard in that excerpt, you have to judge intent. You know, do you have an intent to remain here, which requires a lot of legal interrogation. But just in terms of the documentation, other scholars have written about how this is going to impact all of us potentially, because all of us now have to be able to provide some documentation that verifies the status of our parents, our status, and so forth. So I think workability is going to be a big question here. I think what's really attractive about the birthright citizenship rule is that it has worked. It's a bright line rule. You know, we heard that repeated by the Justices several times. It's a bright line rule that may have policy implications that some people don't like, but it's a much easier rule to apply. And it's really critical that we have bright line rules when we're talking about citizenship, because so much of our benefit, so much of our rights, our protection, when we travel abroad, being having a state and not being stateless, those are really important issues. So we need a very clear rule that's easy to apply.

[Laura Jarrett]

We were able to get in touch with one of the living descendants of Wong Kim Ark. This is what Norman Wong had to say about the threat to his great grandfather's legacy and birthright citizenship.

[Norman Wong]

The people that come here, they're looking for a better future. That was the dream. And I think we have to make that dream real and live up to it, because that's what we used to promise the world until very recently, that dream. And we take that away, and America is no longer the America that it once was. And I think we will lose a lot for doing that.

[Laura Jarrett]

Professor, if the justice is ultimately in birthright citizenship for undocumented immigrants, what message do you think it would send to people like Norman and to the country more broadly?

[Professor Lucy Salyer]

Well, I think it would be a devastating message that's such a powerful reflection on his part. And birthright citizenship has rested historically, since our founding, on the idea that it is better to be a nation of immigrants, a nation of citizens, than to be a nation of aliens, and that this inclusiveness has always been one of the strong points of American history. We certainly have had repeated periods of anti immigrant sentiment, but one of its strong points has been this incorporation of many different peoples with this understanding that we can have a diverse society but still all be American.

[Laura Jarrett]

Professor Lucy Sawyer, thank you.

[Professor Lucy Salyer]

Thank you so much for having me.

[Laura Jarrett]

Next up in our series, who gets to play on girls sports teams? We're going to hear from the lawyer who helped establish gender identity as a protected class under the law and whether he thinks his own precedent will survive its latest test.

[Various Interviewees/Commentators]

Every time a discriminated group seeks to protect equal rights for themselves, they face

[Professor Lucy Salyer]

this kind of backlash and you just have to keep on fighting and push it through.

[Laura Jarrett]

That's next time on here's the Scoop, Supreme Court Edition. Our show was produced by Abigail Brooks and Amanda Llewellyn. Erica Huang engineered with support from Jessica Fenton. Kateri Yocum is executive producer of here's the Scoop. And Shalini Sharma is the senior vice president of content development at NBC News. I'm Laura Jarrett. See you next time.

[Commercial Narrator]

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[Professor Lucy Salyer]

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