The Roberts Court Entertains Donald Trump’s Claim That He Can Unilaterally Strip Americans’ Citizenship

Some Pundits Give John Roberts Credit for Being Skeptical, But the Case Should Be a Slam Dunk Loss for Trump

On April Fool’s Day, the U.S. Supreme Court heard oral arguments in Trump v. Barbara, a case challenging Donald Trump’s claim that he has the power to strip Americans of their citizenship. Trump showed up at the Supreme Court building to be present for the assertions of his Solicitor General, John Sauer, but left before the arguments of Cecillia Wang from the ACLU. His appearance made headlines, despite its actual insignificance.

Many reporters jumped on a narrative that painted the questioning by Chief Justice John Roberts and other Republican appointees as a kind of heroic skepticism. But that misses the point. Sauer tried to transform Trump’s hideous whims and fringe theories into legally binding mandates, and any justice who goes along with such flagrantly counter-constitutional claims should be decisively hounded out of office.

Here are three things everyone should know.

1. Only an unrepentant Trump sycophant would rule in his favor on this issue

The Constitution is explicit: “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.”

As the Supreme Court ruled more than 100 years ago in United States v. Wong Kim Ark, that opening line of the 14th Amendment guarantees that everyone born in the U.S. is a citizen, with only a few specific exceptions–children of foreign diplomats and of enemy forces during an occupation.

To serve Trump’s agenda, Sauer concocted a spiderweb of Glenn Beck-style arguments asserting that Americans born to temporary U.S. residents or undocumented immigrants could be denied citizenship by any president. But no court has ever read the Constitution’s “subject to the jurisdiction thereof” text that way. The U.S. has always considered nearly everyone in the country to be subject to its jurisdiction, aside from those narrow exceptions noted above. (Meanwhile, in no other setting has Trump ever questioned DHS’ power to seize immigrants and subject them to our laws; if anything, he and his minions have urged agents to exceed the bounds of law to assail them.)

Sauer also claimed that only children of parents with “allegiance” to the U.S. can be citizens, but that is not at all what the 14th Amendment commands. It’s not even something that could be claimed of all of the Africans enslaved here before the Emancipation Proclamation–yet the Constitution nonetheless ordered American citizenship for them and their children, as Justice Ketanji Brown Jackson noted, based on the actual history. Plus, as Justice Amy Coney Barrett pointed out, does the administration really plan to depose pregnant women about their allegiances or their “domicile?”

Because the Supreme Court noted that Wong Kim Ark’s parents were “domiciled” in the U.S., Sauer tried to twist that dicta from the recitation of the facts into a condition for citizenship. It is not. Ultimately, Wong Kim Ark’s parents returned to China; U.S. law barred them from citizenship but not their son, who only had to establish that other Americans knew he was born here and remembered him from his childhood.

Of course, ultra MAGA justice Samuel Alito tried to advance Sauer’s effort to make a mountain out of a molehill. Even some of the Democratic appointees seemed to fall under Sauer’s spell briefly by acknowledging that the word “domicil” (sic) was mentioned 22 times in Wong Kim Ark’s case. But most of those references were about how domicile (a $10 word for home, or the place where someone intends to return or sink roots) was irrelevant to the command of the 14th Amendment. In fact, the Supreme Court in Wong Kim Ark’s case made clear that the children of “temporary sojourners” (visitors) were U.S. citizens if born here, under the longstanding common law of the U.S. and England conferring citizenship based on birthplace.

Sauer tried repeatedly to sidestep the holding in that case and pushed claims about the language in previous and subsequent immigration statutes. Accordingly, Sauer also focused some of his time on the congressional debate over a statute related to the 14th Amendment, even though establishing legislative or “original intent” through the statements of individual legislators for or against a provision can easily be cherry-picked and is fraught for other reasons. For example, the Civil Rights Act of 1964 barred discrimination against all women, but the men who added that amendment proposed it as a poison pill to kill the bill–they never actually intended for women to get access to equal rights through that landmark law.

Plus, so-called “originalism” has been exposed as an optional political rather than principled tool by its proponents, not least by the Roberts Court’s invention of criminal immunity for Trump, in defiance of the Constitution and the discernable “original intent.”

2. Trump continues to try to defy the Constitution he swore to uphold

After Sauer’s argument, Trump posted on social media: “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”

That’s not true–more than 30 other countries follow “jus soli,” or birthright citizenship, too. But it is also besides the point. The countries that don’t do so are not governed by our Constitution, which follows the English common law rule dating back to the 1600s that citizenship is based on birth–meaning territory–with the narrow exceptions noted above.

If Trump wants to change that, he must work to propose and ratify an amendment to the Constitution–but he definitely does not have the votes needed to do so. He just claims he can dictate his desires, despite the law as Jamelle Bouie recounted.

The reality is that minutes after John Roberts administered the oath of office to Donald Trump on January 20, 2025–the oath that promises to faithfully execute the laws of the U.S. and defend the Constitution–Trump issued an executive order defying its plain command on birthright citizenship. This blatant disregard for the law came after Roberts’ own unprecedented and anticonstitutional ruling, giving Trump immunity from criminal prosecution, helped effectively pardon him and clear the path for his return to power.

Immediately after regaining said power, Trump began defying the Constitution.

Not only that, the Roberts Court then aided him immensely–limiting lower courts’ ability to issue national temporary restraining orders in cases challenging his executive edict against birthright citizenship. The Court also allowed Trump to bypass the normal appellate review by the circuit and come directly to the Supreme Court with his claims.

Instead of letting the standard process play out and summarily affirm a ruling against Trump, a majority of the judges appointed to the Supreme Court chose not to do so.

Notably, Sauer also tried to claim the president can unilaterally block birthright citizenship because there are some companies selling travel to pregnant women to give birth here (which still does not change the Constitution). Meanwhile, investigative reporting showed that Trump profited from such tourism by pregnant Russians staying at his properties in Florida. On top of all that, there is the hypocrisy of him promoting a scheme he calls the “Trump Gold Card,” which allows super-rich foreigners to buy American citizenship for a $5 million fee.

3. The attack on birthright citizenship is brought to us by the same man who filled Trump with delusional notions about overturning the 2020 election

Although Trump has railed against so-called “anchor babies” or “chain migration” since his 2016 campaign, the legal agenda to strip Americans of birthright citizenship is a special project of John Eastman. He’s the Trump confidante and former clerk of Clarence Thomas who, in 2021, played a central role in pushing for Mike Pence to block the certification of the Electoral College and promote what special counsel Jack Smith rightly called “fraudulent electors.” Eastman has since faced bar complaints and severe judicial criticism for his conduct in trying to block the lawful, peaceful transfer of power in the aftermath of Trump’s loss to Joe Biden in the 2020 presidential election.

Eastman also filed an amicus brief supporting Trump in the case before the Roberts Court, on behalf of the Claremont Institute, a right-wing operation fueled by Thomas Klingenstein. Klingenstein, who chairs the Claremont operation, also funded Clarence Thomas’s 2020 vanity biopic along with Harlan Crow and other billionaires–as True North Research detailed a few years ago. A super-rich investor, Klingenstein has strongly defended Eastman’s role in 2020 and beyond.

The bottom line now is that the Roberts Court has legitimated the extreme revisionism of Eastman and his ilk by giving a case that could have been summarily affirmed against Trump a very high-profile platform–the forum of the nation’s highest court.

If, somehow, five or six Republican appointees are willing to rip the Constitution apart for Trump–as they did with immunity–it seems clear that it would not stop here. Once the groundwork to strip future Americans of their citizenship is laid, Trump and his backers would surely seek to do the same retroactively, as Madiba Dennie emphasized. They could reach back decades, denying passports for firmly established U.S. citizens and even destroying their right to live in their home country: America.

It is not beyond imagination to envision Trump relishing efforts to strip Kamala Harris of her American citizenship because her parents were foreign students in the U.S. After all, it was John Eastman himself who advanced the execrable claim, before the 2024 election, that supposedly Harris should not be eligible to run for president because of her parents’ status. If Trump were to win such a case, she could be just one of millions of Americans who would be harmed by another reckless ruling by the Roberts Court.

If the Court decides, however, to actually rule in accord with the Constitution and against Trump, it will only be because–like in the tariff case–the Constitution leaves no room for his claim. But the same was true in the immunity case and Roberts still invented a fictional doctrine to shield him from his abuses of presidential power.

Meanwhile, Roberts is poised to decimate the Voting Rights Act, and a ruling against Trump on birthright citizenship would give Roberts cover with the chattering class. Both-sideism pundits would likely emphasize that Trump doesn’t win 100% of the time with the Court (even though it has ruled for Trump almost all the time since 2024).

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What I’m Reading:

• Erika Lee’s At America’s Gates: Chinese Immigration during the Exclusion Era, 1882-1943

  • This book tells a story few Americans know about anti-Chinese racism.

• Garrett Epps’ Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America

  • This book details how equal rights became a constitutional command.

• And, the 14th Amendment to the Constitution, of course.

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P.S. I’m sorry to have been away for a bit. My beloved sister-in-law, Ellen Hanson, was fighting a fierce battle against cancer and passed away last month. That was really hard and I will miss her immensely. She encouraged me to keep fighting for our rights no matter what, so I am glad to be back on deck and back to promoting my book on John Roberts, Without Precedent, which becomes more timely with each passing day.