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- [00:00]
Zach Smith
This is an iHeart podcast.
- [00:02]
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Guaranteed Human support for the show comes from Public, the investing platform for those who take it seriously. On Public you can build a multi asset portfolio of stocks, bonds, options, crypto and now generated assets which allow you to turn any idea into an investable index with AI. It all starts with your prompt. From renewable energy companies with high free cash flow to semiconductor suppliers growing revenue over 20% year over year, you can literally type any prompt and put the AI to work. It screens thousands of stocks, builds a one of a kind index and lets you back test it against the S&P 500. Then you can invest in a few clicks. Generated assets are like ETFs with infinite possibilities, completely customizable and based on your thesis, not someone else's. Go to public.com podcast and earn an uncapped 1% bonus when you transfer your portfolio. That's public.com podcast paid for by Public
- [00:52]
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Investing Brokerage Services by Open to the Public Investing Inc. Member FINRA and SIPC Advisory Services by Public Advisors llc. SEC Registered Advisor Generated Assets is an interactive analysis tool. Output is for informational purposes only and is not an investment recommendation or advice.
- [01:02]
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- [01:07]
Anabe Sofa Ad Read
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- [02:07]
Firestone Tire Ad Read
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- [02:36]
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- [03:04]
Zach Smith
See full terms@mintmobile.com.
- [03:10]
Newt Gingrich
Welcome to Newt's World podcast on the iHeart podcast network. I have to say, having looked at the Iranian version of a peace plan and having looked at what the President originally talked about, I am very concerned. The Iranians have taken a very aggressive position. Basically, I think have set this up to fail. And I think the Iranians believe they can withstand whatever the United States will do because they believe that controlling the Strait of Hormuz allows them to create so much economic pain around the world that the world simply won't tolerate the US Continuing with a bombing campaign. So I'm very worried. I don't know what President Trump thinks he's going to accomplish. I have not seen any indication that the Iranians in any way feel under pressure to do anything substantive. And you see the same thing happening frankly in Gaza where Hamas still controls about one third of Gaza. And as recently as two days ago, one of the leaders of Hamas said publicly, we're not giving up anything and we're certainly not giving up our commitment that not a single Jew will remain. So I think that there's been a desperation to end violence in the west which became more important than the need to stop what could well be a nuclear threat from Iran and could well be an existential threat to Israel from Hamas. All I can tell you is I worked with Reagan. I believe trust but verify is a good ground rule. I was there for his entire eight years and looked at the things that went on. I don't think there's much here to verify, but I'll keep watching and I'll keep reporting. Coming up, I'm joined by Zach Smith, senior legal fellow at the Heritage foundation. And we're going to discuss the recent Supreme Court hearing on Trump versus Barbara, which is also known as the Birthright Citizenship case.
- [05:25]
Public Ad Read
Support for the show comes from Public, the investing platform for those who take it seriously. On Public, you can build a multi asset portfolio of stocks, bonds, options, crypto and now generated assets which allow you to turn any idea into an investable index. With AI. It all starts with your prompt from renewable energy companies with high free cash flow to semiconductor suppliers growing revenue over 20% year over year. You can literally type any prompt and put the AI to work. It screens thousands of stocks, builds a one of a kind index and lets you back test it against the S&P 500. Then you can invest in a few clicks. Generated assets are like ETFs with infinite possibilities, completely customizable and based on your thesis, not someone else's. Go to public.com podcast and earn an uncapped 1% bonus when you transfer your portfolio. That's public.com podcast paid for by Public
- [06:12]
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Investing Brokerage Services by Open to the Public Investing Inc. Member FINRA and SIPC Advisory Services by Public Advisors llc. SEC Registered Advisor Generated Assets is an interactive analysis tool. Output is for informational purposes only and is not an investment recommendation or advice.
- [06:23]
Public Ad Read
Complete disclosures available at public.com Disclosures Life
- [06:27]
Anabe Sofa Ad Read
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- [07:27]
Firestone Tire Ad Read
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- [07:57]
Cindy Crawford
hi, I'm Cindy Crawford and I'm the founder of Meaningful Beauty. Well, I don't know about you, but like I never liked being told oh wow, you look so good for your age. Like why even bother saying that? Why don't you just say you look great at any age, every age. That's what Meaningful Beauty is all about. We create products that make you feel confident in your skin and at the age you are now. Meaningful beauty, beautiful skin at every age. Learn more@meaningful beauty.com.
- [08:38]
Newt Gingrich
I am really pleased to welcome my guest, Zach Smith, senior legal fellow at the Heritage Foundation. Zach, welcome and thank you for joining me on newtsworld.
- [08:48]
Zach Smith
Of course. Thanks for having me on the show.
- [08:50]
Newt Gingrich
Can you give us a bit of background? This is, I think, a fascinating and complex issue. And as you know, President Trump signed Executive Order 14160 on January 20, 2025, seeking to end birthright citizenship for children born in the United States to undocumented or temporary visa holding parents. That, of course, has now gone to the Supreme Court in a case known as Trump versus Barbara. Tell me about the background of why he signed the executive order and why it has sparked such a big legal fight.
- [09:28]
Zach Smith
Well, you're absolutely right. This is a fascinating issue. It's a very complex legal issue and it's a very consequential legal issue as well. And part of the reason President Trump took this action and signed this executive order, I think, is obviously because there's a much needed conversation that needs to happen in our country around birthright citizenship. And if you look at what the executive Order President Trump signed actually does, it simply says, as you mentioned, that if someone is born in the United States and their parent is not a long term resident, essentially a permanent resident or a US Citizen, then that child will not automatically become a citizen. And the way this has been teed up, the way it has come to the court, is essentially the president ordered the executive branch of the federal government not to provide documents or other benefits to those children that would ordinarily be only provided to US Citizens. So, for example, those children born to illegal aliens, those children born to those who are in our country temporarily, maybe on a tourist visa or something similar, those children would not be eligible to receive U.S. passports. The state Department will no longer issue passports to those children. And there are a host of other benefits and documents that the federal government provides to citizens long term residents that essentially President Trump instructed the executive branch to not provide to those individuals who in his few are not eligible or should not be eligible to be citizens by birth.
- [10:51]
Newt Gingrich
How does that compare to other countries? I mean, is the United States forging a brand new path or are there a lot of countries like that?
- [11:01]
Zach Smith
This came up a little bit at the oral arguments when the Supreme Court heard this case. But the United States is unique. We are an outlier in terms of providing birthright citizenship. And there's a dispute about the historical basis, what the common law England required. And you have heard a lot of discussion, I think. I think more citizens today have become experts about the English common law rule, which is a good thing, not necessarily a bad thing, and how the framers of our Constitution would have understood that English common law history. But the fact is, today, in terms of birthright citizenship, the United States is very much an outlier compared to the rest of the world.
- [11:40]
Newt Gingrich
In most countries. What's the ground rule?
- [11:43]
Zach Smith
Well, in most countries, you do not automatically become a citizen by birth. There has to be some type of tie to the country. Typically, one of your parents has to be a citizen. There are other conditions that often have to be met. And again, as I'm sure we'll talk about more, essentially, there has to be some tie, some type of allegiance to that country. And that rule, by and large, avoids many of the issues that we've seen today with things like birth tourism, with things like illegal aliens coming to our country, having children, and then using that child essentially as an anchor to try to stay in our country, even though that individual initially came to our country illegally broke our laws to get in the first place. This is a very important, very consequential issue.
- [12:28]
Newt Gingrich
The argument on the other side is that the 14th amendment very specifically provides that if you are here, that you're a citizen.
- [12:38]
Zach Smith
Well, I would say that is fake news, or at least it's a misinterpretation of the 14th Amendment. And typically when people talk about the 14th Amendment, they talk about the provision that says if you are born or naturalized, you become a citizen of the United States. But there's a key, key provision that is often left out of the 14th Amendment, the language in the 14th Amendment. Because if you go and read, and I encourage all of your listeners to go and read the actual text of the 14th Amendment, what it says is that if you're born or naturalized and subject to the jurisdiction thereof, you become a citizen of the United States. And it's that and subject to the jurisdiction thereof, language that is so critical and has received so much scholarly attention over the past several months and was really the first the focus of the U.S. supreme Court at the oral arguments. And essentially the argument is that at the time that the 14th Amendment was adopted and ratified in the late 1800s, that language would have had a very particular meaning. It would have been understood to require, as I was mentioning just a minute ago, that in order to be a citizen by birth, your parents would have had to have some type of allegiance to the United States. They couldn't owe their allegiance to a foreign country. And so that's why that phrase has received so much attention. That's why that phrase is so very important. And that's why that phrase has been the subject of a lot of the arguments and media attention over the past several months.
- [14:07]
Newt Gingrich
And do you think that it's being misinterpreted in terms of what the people who wrote and voted for the amendment would have thought in the 1860s?
- [14:18]
Zach Smith
Well, that is the argument the Trump administration has been making. John Sauer, who's the Solicitor General, I think, made a very strong case that that is true. There's been a plethora eth of scholarship over the past several months on this issue with very prominent law professors like Randy Barnett, Kurt Lasch, Elon Wurman, Philip Hamburger as well at Columbia University, recently wrote pieces essentially making that argument, at least that the way that those on the left, those in the mainstream media, present the language of the 14th amendment today or present what the 14th amendment requires, they have essentially made the historical case that that would not have been how the framers and ratifier, the 14th Amendment would have understood that language.
- [15:02]
Newt Gingrich
So in that sense, going back to what's been a running argument for the last half century, if you believe that the Constitution should be interpreted in the context of the time at which it was adopted and that the word should be interpreted to mean what it meant at the time it was adopted, in your judgment, that would mean that there could be no birthright citizenship?
- [15:27]
Zach Smith
Well, I wouldn't take it quite that far. I think it would be birthright citizenship for children born to US Citizens are individuals who essentially have announced their allegiance to foreign countries or potentates, if you will. And so that typically today would include individuals we'd think of as permanent residents, green card holders, people who are intending to stay here permanently are intending to work toward and become U.S. citizens. I think at the time that the 14th amendment was ratified and adopted, the immigration system in existence at the time was very different than the immigration system we have today. And so it's not a perfect analogy, but I think it's very clear that those who were short term residents, again, those who do not owe their allegiance to the United States, that their children would not have become citizens. And a perfect example of this one, you may very well appreciate, you and your wife, but traditionally the children of ambassadors would not be considered automatically to become citizens of the country where the child was born. And that was true in the United States. That was true before the 14th amendment, is true after the 14th amendment. And part of the reason is because everyone understood that the ambassador owed his or her allegiance to that ambassador's home country. And so the children of ambassadors, foreign officials, they have never been considered citizens by birth in the United States. And so by analogy, by extrapolation, I think that argument in part goes to show that very technical, very important meaning, meaning of that subject to the jurisdiction thereof, language that the framers of the 14th Amendment included in it.
- [17:08]
Newt Gingrich
In that context, it seems to me that just using your example of ambassadors, we protect the intent of the parents more than the geography.
- [17:21]
Zach Smith
Well, I think that is true. And there has to be an intent to renounce allegiance to the foreign countries. And if you are in our country illegally, you've broken our laws to come into our country, and you have not announced that allegiance to the foreign country. And so again, if you go and look at the debates surrounding the ratification of the 14th Amendment and how it was initially interpreted immediately in the aftermath of the ratification of the 14th amendment, this certainly seems to be the settled understanding at that time of how it should apply.
- [17:56]
Newt Gingrich
Peter Schweitzer, as you know, in his new book, the Invisible Coup, argues that there really is a birth tourism industry, particularly among the Chinese. And his estimate is that maybe as many as a million Chinese nationals could hold US Citizenship despite growing up entirely in China and actually having their loyalty to China. I mean, is that a serious thing or is that just, just an interesting aside in a book?
- [18:24]
Zach Smith
Well, it's a very serious issue. And in fact, you heard Solicitor General John Sauer, who's the government's top lawyer who argued this case at the U.S. supreme Court, allude to that during the oral argument in front of the Justices. Now, John Sauer and some of the justices, and we may talk about this, they essentially made the point, and this is a policy argument for some of the problems with birthright citizenship as it's been applied and interpreted by the courts over the past half century or more. But one of the points that Solicitor General Sauer made, and I thought it was a very good point, is that if an interpretation of a constitutional provision leads to an absurd result, that tends to suggest that the interpretation may be incorrect. If it leads to a result that everyone generally agrees the framers at the time it was adopted would not have countenanced, would not have foreseen, that is a good reason to pause and reevaluate that interpretation. And I think it goes without saying that the framers of the 14th Amendment, the ratifiers of the 14th Amendment, I suspect, would have found the this birth tourism issue to be a very real, very problematic issue that's taking place. And as you mentioned, there's been well documented instances of many individuals coming into the United States simply for the purpose of giving birth and having their child become a US Citizen with no intention for that parent or that child to remain in the United States on a long term basis.
- [19:50]
Newt Gingrich
When we come Back act we'll discuss the 1857 Dred Scott decision which created the 14th amendment and the historical basis of citizenship.
- [20:00]
Public Ad Read
Support for the show comes from Public, the investing platform for those who take it seriously. On Public you can build a multi asset portfolio of stocks, bonds, options, crypto and now generated assets which allow you to turn any idea into an investable index with AI. It all starts with your prompt. From renewable energy code companies with high free cash flow to semiconductor suppliers growing revenue over 20% year over year, you can literally type any prompt and put the AI to work. It screens thousands of stocks, builds a one of a kind index and lets you back test it against the S&P 500. Then you can invest in a few clicks. Generated assets are like ETFs with infinite possibilities, completely customizable and based on your thesis, not someone else's. Go to public.com podcast and earn an uncapped 1% bonus when you transfer your portfolio. That's public.com podcast paid for by Public
- [20:46]
Public Legal Disclaimer
Investing Brokerage Services by Open to the Public Investing Inc. Member FINRA and SIPC Advisory Services by Public Advisors, llc. SEC Registered Advisor Generated Assets is an interactive analysis tool. Output is for informational purposes only and is not an investment recommendation or advice.
- [20:57]
Public Ad Read
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- [21:02]
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- [22:02]
Firestone Tire Ad Read
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- [22:31]
Cindy Crawford
Hi, I'm Cindy Crawford, and I'm the founder of Meaningful Beauty. Well, I don't know about you, but, like, I never liked being told, oh, wow, you look so good for your age. Like, why even bother saying that? Why don't you just say you look great at any age, Every age. That's what Meaningful Beauty is all about. We create products that make you feel confident in your skin at the age you are now. Meaningful Beauty. Beautiful skin at every age. Learn more@meaningful beauty.com.
- [23:12]
Newt Gingrich
So when you think about it, one of the most consequential and wrong decisions in the history of supreme court was the 1857 decision in Dred Scott vs Sanford, in which essentially the Court overreached and argued that once you were a slave, you were a slave under any circumstance, even if you were living freely in a place like Illinois or Ohio or Massachusetts. And that was a major factor in the rise of Abraham Lincoln. But when you look at cases that size, and then the court, of course, ultimately begins to reverse itself because Lincoln's replacing the judges who had made that decision. But it is a factor, I think, from Lincoln's perspective, in moving these constitutional amendments so that there can be no doubt that, in fact, your constitutional rights are written into the Constitution and are preserved. But when you look back at it and you think about the meaning of Dred Scott vs Sanford, you look at the Civil Rights act of 1866, the court's ruling in US vs Wong Kim Ark, what do these things tell you about the Court's own evolution on the question of birthright citizenship?
- [24:33]
Zach Smith
Well, I'm so glad you brought up all of these issues because these are so very important to talk about and disentangle. So let's start with Dred Scott, as you mentioned. Obviously, everyone understands. Dred Scott, I think, was probably one of the most infamous decisions in the Supreme Court's history by Chief Justice Roger Taney, where he essentially said that a black individual could never become a U.S. citizen. And so the purpose of the 14th Amendment, I think everyone agrees, was largely to overturn and overrule Dred sky and make clear that everyone is entitled to become a US Citizen if they're eligible, regardless of their race, their color, or any other of those protected characteristics. And so that was the purpose of the 14th Amendment, is to overrule Dred Scott and make sure that the newly freed slaves could, in fact, become citizens and full members of our political community. Now, of, of course, that didn't happen immediately, but that was the intent behind the 14th Amendment. Now, if we fast forward to the end of the 1800s, the late 1890s, the court heard a decision called United States versus Wong Kim Ark. Now, in that instance, Wong Kim Ark, his parents were of Chinese descent. They were from China. He was born in the United States. He left the United States in his early 20s temporarily to return back to China. And when he tried to come back into the United States, the government would not allow it. They said he was not a US Citizen because his parents were not citizens at the time he was born, even though he was born in the United States. Now, if you listen to what many on the left today say, they will say that the Supreme Court's decision in Wong Kim Ark, where the Supreme Court actually said that Wong Kim Ark was in fact a US Citizen because he was born on US Soil, those on the left say that that supports the idea that President Trump, Trump's executive orders are invalid, that they're clearly illegal. The Supreme Court precedent doesn't support it. But that's just not true. Because if you go back and you look at the Wong Kim Ark decision and what it actually says, what it actually does, it actually takes a position very close to what President Trump's position is as well. What the Supreme Court said in that Wong Kim Ark decision is, again, if someone's parents are citizens and they're born in the United States, that person is automatically a citizen by birth. Or if that individual's parents are essentially, again, what we think of today as long term permanent residence, if they renounce their allegiance to prior countries where they may have had citizenship or owed their allegiance, then in that instance, that person will also be a citizen by birth. And that is what happened in Wong Kim Ark's case, because the court said his parents were essentially what we would think of as long term permanent residence. And that's why in this case, again, Solicitor General John Sauer, the Trump administration, they are not asking for Wong Kim Ark to be overruled. They're actually saying that Supreme Court decision supports the administration's position. Now, one more very quick point. You mentioned the Civil Rights act of 1866. This was passed around the same time as the 14th amendment, it's generally been understood to simply be a codification of the 14th Amendment, an additional protection that Congress passed. But there is a very important, very slight difference in the wording that Congress used in the Civil Rights act versus the wording of the 14th Amendment. And so the Civil Rights act of 1866, the language it used there, it says, quote, all persons born in the United States, comma, and not subject to any foreign power, comma, essentially will be citizens. And so the reason that slight language is included, if you go back and you read the debates at the time, the documents that would help provide the public understanding is individuals in Congress wanted to make very clear what that end, subject to the jurisdiction, language thereof meant. It meant not subject to any foreign power. And so that has also been a subject of some debate. And that is a very important and I think very illuminating slight tweak in the language that Congress made between the 14th Amendment and the Civil Rights act of 1866.
- [28:43]
Newt Gingrich
We come out of that period. My sense is it was really sort of a mood issue for a long time. There weren't enough activities to get people riled up, up. And yet, as we begin to go down the road, all of a sudden it does become a very big issue in question. Given the rise of communication and the rise of transportation, you could easily imagine, as Peter Schweitzer has described it, an entire industry of, you know, visit America, have your child, and you now have a permanent tie to the United States. Coming up, we discuss the Supreme Court hearing and how historic it is for President Trump to be the first sitting President to sit in the courtroom for a Supreme Court case.
- [29:28]
Public Ad Read
Support for the show comes from Public, the investing platform for those who take it seriously. On Public, you can build a multi asset portfolio of stocks, bonds, options, crypto and now generated assets which allow you to turn any idea into an investable index. With AI. It all starts with your prompt. From renewable energy companies with high free cash flow to semiconductor suppliers growing revenue over 20% year over year, you can literally type any prompt and put the AI to work. It screens thousands of stocks, builds a one of a kind index and lets you back test it against the S&P 500. Then you can invest in a few clicks. Generated assets are like ETFs with infinite possibilities, completely customizable and based on your thesis, not someone else's. Go to public.com podcast and earn an uncle capped 1% bonus when you transfer your portfolio. That's public.com podcast paid for by Public
- [30:15]
Public Legal Disclaimer
Investing Brokerage Services by open to the Public Investing Inc. Member FINRA and SIPC Advisory Services by Public Advisors, llc. SEC Registered Advisor Generated Assets is an interactive analysis tool. Output is for informational purposes only and is not an investment recommendation or advice.
- [30:26]
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- [30:29]
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- [31:30]
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- [31:59]
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- [33:06]
Newt Gingrich
During the arguments Cecilia D. Wang basically said this is pretty straight forward. The most Americans understand the rule to be simple. If you're born here, you're a citizen. She argued that the 14th Amendment was meant to lock that in and keep it out of reach of politicians. What is your response to that?
- [33:26]
Zach Smith
Well, Cecilia Wang, obviously she is arguing on behalf of the ACLU on behalf of the challengers to President Trump's executive orders and I think there's an over simplistic reading. Now right before the break you mentioned that for many years this hasn't been an issue or didn't seem to be. It seems to be something that's relatively recent vintage. And part of the reason that may be true is because I think as we've heard some make the point correctly is that the facts today are very, very different. Historically you did not have billions and billions of people who were potentially only a 4, 5, 7, 8 hour plane ride away from the United States. It was typically much more difficult to travel to a new country to immigrate to the United States. And that today has changed. That effort and time period has significantly shrunk for billions, literally billions of people in order to get into the United but again I think the argument that Cecilia Wang other challengers have made really doesn't dive into and grapple with the text of the 14th Amendment. And that's where a lot of the back and forth focused on at the oral arguments when the Supreme Court heard the case. What does the text say? What does that end subject to the jurisdiction thereof language mean? How has it historically been understood and as you alluded to earlier and most importantly, how would it have been understood at the time that the 14th Amendment was adopted and ratified? And that is where the bulk of the argument's focused on.
- [34:48]
Newt Gingrich
It may be helpful to hear the Court themselves and get a sense of what they were saying with the President looking on.
- [34:56]
Chief Justice John Roberts
Who's Wong?
- [34:58]
ACLU Attorney Cecilia D. Wang
Mr. Chief justice, and may it please the court, ask any American what our citizenship rule is and they'll tell you everyone born here is a citizen alike. That rule was enshrined in the 14th Amendment Amendment to put it out of the reach of any government official to destroy. When the government tried to strip Mr. Wong Kim Ark's citizenship on largely the same grounds they raised today, this Court said no. Thirty years after ratification, this court held that the 14th Amendment embodies the English common law rule. Virtually everyone born on US Soil is subject to its jurisdiction and is a citizen.
- [35:38]
Newt Gingrich
So given that, what did it mean that President Trump actually went to the court? And as I understand it, no president had ever done that before.
- [35:48]
Zach Smith
Yeah, it was a historic day. President Trump sat in the front row of the gallery, essentially to see the proceedings. I certainly am not aware of any other sitting US President who has taken that action, but he was there to hear the arguments, to hear the arguments that his administration, Solicitor General John Sauerkraut, made on his administration's behalf.
- [36:08]
Solicitor General John Sauer
General Sauer, Mr. Chief justice, and may it please the court. 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. This conclusion reflects the original public meaning of the clause. When Congress used the term not subject to any foreign power in the Civil Rights act of 1866, it rejected the British conception of allegiance. Senator Trumbull explained that subject to the jurisdiction thereof in the clause means not owing allegiance to anybody else. And in 1884, this court recognized that subject to the jurisdiction means owing direct and immediate allegiance. The clause thus does not extend citizenship to the children of temporary visa holders or illegal aliens. Unlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status that creates the requisite allegiance. And the text of the clause presupposes domicile. For decades following the clause's adoption, commentators recognized that the children of temporary visits visitors are not citizens and illegal aliens lack the legal capacity to establish domicile. Here.
- [37:31]
Zach Smith
And look, I think it's always difficult to read the tea leaves during oral arguments. Sometimes the Justices play devil's advocate. Sometimes the Justices ask questions or try to make points to cut off an argument they suspect one of their colleagues may try to make to undermine their position. But it certainly seemed like Solicitor General John Sauer, who was arguing on behalf of the President's position, that he faced some very difficult questions, hostile questions from the Justices, even some of the Republican appointed Justices on the Court. And I thought overall, he did a nice job of handling those questions and responding with the facts and circumstances. The historical argument for why President Trump's position is supported by the text of the 14th Amendment and the text of the Civil Rights act as it's been codified. Now, one thing I think that is interesting to note that a lot of people don't realize is that there is actually both the constitutional argument being made at the Supreme Court that President Trump's arguments are constitutional, and then there's also a statutory argument that's being made as well, essentially that President Trump's executive orders also violate the statutes that Congress has passed to essentially codify the 14th Amendment. And so one thing that could happen, I think it's probably unlikely, but it could happen, is that the Supreme Court, if they don't want to reach the constitutional issue, they could decide it on statutory grounds and essentially given out and allow Congress to go back and change the language of the relevant statutory provisions if Congress, Congress wanted to do that. So that will be something very interesting and something I suspect some are watching very closely.
- [39:06]
Newt Gingrich
Did you have any sense from the degree to which the questions were pretty tough, is it your sense that the court's leaning in favor of protecting birthright citizenship?
- [39:18]
Zach Smith
Again, it's always very tough to read the tea leaves from oral argument, but certainly some of the justices seem hostile to the administration's position that and subject to the jurisdiction language has that very specific, very technical meaning where birthright citizenship would only apply to the children of citizens or long term permanent residents. And so you heard questions from Justice Kentanji Brown Jackson, you heard questions from Justice Sonia Saharamara, Elena Kagan, Justice Neil Gorsuch at certain points also had questions he tried to analogize to Indian tribes who I think members of tribes were generally not considered to be U.S. citizens at the time the 14th Amendment was passed. And in fact, Congress passed a law in the 1920s to extend birthright citizens citizenship to members of tribes.
- [40:05]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
Today you can point to laws against immigration that are much more restrictive than they were in 18. We really didn't have laws like that we do today until maybe 1880. So if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to anything, any, any immigration law, there they were. And so why wouldn't we, even if we were to apply your own test, come to the conclusion that the fact that someone might be illegal is immaterial?
- [40:40]
Solicitor General John Sauer
I would first cite Wong Kim Ark on that point because Wong Kamar says
- [40:44]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
you're well, I'm not sure how much you want to rely on Wong Kim
- [40:47]
Solicitor General John Sauer
Ark, but that the state there is a statement in there that says so long as they are permitted to be here. So Wong Kim Ark, keep in mind that by the time they decide, Wong
- [40:54]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
Kimar can I know, but that's 1898. Now I'm looking at 1868, you're telling me is when I should look. And the test for domicile and the stuff you have about unlawfully present, it's like Roman law, sources.
- [41:07]
Solicitor General John Sauer
You're going to first and second restatements as well, and decisions of discord.
- [41:13]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
So it wouldn't be the INA that would control whether you're capable of having domicile. It would be whatever the law was in 1860.
- [41:22]
Solicitor General John Sauer
Well, I think that this is addressed by my exchange with Justice Alito from earlier, which is that this concept, jurisdiction
- [41:29]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
baking in allegiance and domicile, continually restrict who may lawfully be present more and more. And you'd say that would be incorporated into it, even though you're telling us to apply the original meaning of 1868,
- [41:42]
Solicitor General John Sauer
the original meaning of domicile. And so the question is, is there any argument, argument that the framers intended to preclude Congress from dictating who can and who cannot establish a lawful domicile here? I don't see any evidence of that in the Congressional Record. So it's a natural extension whose domicile matters?
- [41:57]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
I mean, it's not the child, obviously, it's your, 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? Who's domicile?
- [42:08]
Solicitor General John Sauer
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.
- [42:15]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
Well, but 1868 matters, you're telling us. So what's, what's the answer?
- [42:19]
Solicitor General John Sauer
The 1868 sources talk about parental. I'm not aware of them trying to sink between mother or father, but they say the domicile of the child follows the domicile of the parents.
- [42:27]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
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?
- [42:38]
Solicitor General John Sauer
And again, I don't see a strong distinction between those because of course, domicile is a high level concept, has been pretty consistent over centuries, which is lawful presence with the intent to remain permanently that domicile. When you come to a new nation, you say, I'm here for to stay, you become part of their political community and you become akin to a citizen. And that's reflected very strongly in the case I cited before.
- [42:58]
Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
And just to Circle back to Justice Kagan's point. It's striking that it's in none of the debates do we have parents discussed. We have the child's citizenship and the focus of clauses on the child, not on the parents. And you don't see domicile mentioned in the debates. The absence is striking.
- [43:19]
Solicitor General John Sauer
I think the 19th century sources would say a child, a newborn child, lacks the capacity to form a domicile, so they're imputed the domicile of their parents. I don't think they would have seen a distinction between children and parents.
- [43:29]
Zach Smith
So that was an interesting back and forth between Solicitor General Sauer and Justice Gorsuch. And there was one particularly poignant exchange between Chief Justice John Roberts and John Sauer that got a lot of play on social media where Solicitor General Sauer was talking about some of the issues that you and I have talked about. The change in circumstances, the ability of billions of people today to be only a plane ride away from the United States, the rise of birth tourism, which I suspect was largely unknown at the time the 14th Amendment was adopted and ratified. And Solicitor General Sauer was talking about all of these issues that the current interpretation of the 14th Amendment, that the current interpretation of birthright citizenship has caused. And Chief Justice John Roberts said you
- [44:12]
Chief Justice John Roberts
mentioned in your briefing and also this morning the problem of birth tourism. Do you have any information about how common that is or how significant a problem it is?
- [44:25]
Solicitor General John Sauer
It's a great question. No one knows for sure. There's a March 9 letter from a, none are members of Congress to DHS saying do we have any information about this? The, the, the, the, the media reports indicate estimates could be over 1 million or 1.5 million from the People's Republic of China alone. The, the, the congressional report that we cite in our brief talks about certain hotspots like Russian elites coming to Miami through these tourism companies. And I mean here's, here's, here's a fact about it that I think is striking. Media reported as early as 2015 that based on Chinese media reports, there are 500, 500 birth tourism companies in the People's Republic of China whose business is to bring people here to give birth in return to, to, to that nation.
- [45:10]
Chief Justice John Roberts
Having said all that, you do agree that that has no impact on the legal analysis before us.
- [45:16]
Solicitor General John Sauer
I think it's, I quote what Justice Scalia said in his Hamdan dissent where they had, where like their interpretation has these implications that could not possibly have been approved by the 19th century framers of this amendment. I think that shows that they've made a mess, their interpretation has made a mess of the provision.
- [45:33]
Chief Justice John Roberts
Well, it certainly wasn't a problem in the 19th century.
- [45:37]
Solicitor General John Sauer
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.
- [45:45]
Chief Justice John Roberts
Well, it's a new world. It's the same Constitution.
- [45:48]
Solicitor General John Sauer
It is. And as Justice Scalia said, I think in the case that Justice Alito was referring to, you've got a constitutional provision that addresses certain evils and it should be extended to reasonably comparable evils. He said that about statutory interpretation. I think the same principle applies here and I think we quote that in our brief.
- [46:04]
Zach Smith
While these may be new circumstances, but it's the same Constitution. And that got a lot of play. But I think again, Solicitor General Sauer's response to that essentially was again, if you have these situations that are giving rise to absurd results, results that everyone seems to largely agree, the framers and ratifiers of the 14th Amendment would not have condoned, that that is a good indication that the interpretation, the current interpretation may be incorrect and should be reevaluated.
- [46:35]
Newt Gingrich
The way this is evolving, it may be a three or four step dance and not just a decisive one time move. But my hunch is if we see what Peter Schweitzer warned about and we see a continuing growth of people who come here only for the purpose of establishing citizenship, I suspect public pressure for something like this will keep growing. And as I understand it, it's already about a two to one or two and a half to one issue where people are very uncomfortable with the idea that you can come from anywhere in the world and by the act of being born here, you're automatically an American. I think that this is going to continue be fascinating to see what the court does. Do you know better than I do. But I suspect they have a range of ways of responding to this, from a hard you can't touch it to this requires legislative rather than executive action, et cetera. As you watch them, do you think there's a solid majority for Iran anything?
- [47:38]
Zach Smith
I joke when I watch the oral arguments and try to predict what the Supreme Court will do. My crystal ball is broken or it's at least very cloudy most of the time. And I think that's somewhat true in this case. I think the general sense, the general takeaway from the oral arguments is that the majority of justices, at least at oral arguments, appeared to be somewhat unsympathetic to the President's claims. Now, how that will end up shaking out, I'm not sure. I think you saw some interesting intra conservative conversations happening among the conservatives leaning justices on the Court, and so it'll be interesting to see what happens. One thing I would anticipate is the Court's term ends at the end of June, right before July. That's typically the traditional end of the Supreme Court's term, and it's typically when the Court releases some of its biggest opinions from that previous term. And so I would suspect that given the very important issues at play in this case, given the relatively late argument date that took place in the Court's term, I would suspect we will probably get a decision in this case very close to the end of the Court's term at the end of June. So I would say stay tuned. We're going to see and hear a lot about this case, and regardless of what the Court decides, this is going to be a very consequential case that's going to have impact not Only on the 2026, 2028 elections and future elections, but it'll have a very big impact on our country at large as well.
- [49:04]
Newt Gingrich
This is extraordinarily helpful because this is an area where frankly, somebody has to have a huge amount of knowledge about the law, about the Constitution, about history, and about the Court. So, Zach, I really want to thank you. You helped me have a better understanding of this and I'm delighted to have this kind of opportunity to learn from somebody who has really studied this. So thank you very much for joining me today.
- [49:29]
Zach Smith
Of course. Well, thank you so much for having me on the show.
- [49:34]
Newt Gingrich
Thank you to my guest, Zach Smith. Newt's World is produced by Gingrich 360 and iHeartMedia. Our executive producer is Garnes Eislaw. Our researcher is Rachel Peterson. Special thanks to the team at Gingrich360. If you've been enjoying News World, I hope you'll go to Apple Podcast and both rate us with five stars and give us a review so others can learn what it's all about. About Join me on substack@gingrich360.net I'm Newt Gingrich. This is Newt's World.
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Zach Smith
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Solicitor General John Sauer
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Supreme Court Justice (possibly Justice Sotomayor or Justice Kagan)
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Zach Smith
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