The jurisdiction question

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MYRNA BROWN, HOST: As Jenny alluded to, it’s newsworthy that a sitting U.S. President attended oral arguments at the Supreme Court.

MARY REICHARD, HOST: Does it matter to the justices, though? I spoke with constitutional law experts Josh Blackman from South Texas College of Law in Houston, and Ilya Shapiro from the Manhattan Institute.

SHAPIRO: I don't think it affected the argument one whit. It signaled how important this issue is to President Trump. The executive order on birthright citizenship was signed his very first day back in office, and this is one of his signature issues along with the tariffs which he thought about attending that argument, ultimately did not.

Josh Blackman agreed:

BLACKMAN: I don't think he was trying to intimidate the justices….He was sitting in the front row of the gala, which is about 40, 50 feet away from the justices, the lawyers were up front, so he wasn't even right in front of the justice's face... I think he's probably just curious. He wanted to see how it was going to go.

The justices stayed focused on the legal arguments before them:

BLACKMAN: Anytime the lawyers tried to argue a policy that is, you know, this might encourage birth tourism, other countries in Europe don't have this birthright citizenship, and the justice is like, 'Well, that's not what we're talking about. We're talking about legal issues.' And so it was actually a very sober affair, was no partisanship…For an issue of such gravity, you wouldn't have known it based on the tenor of the arguments.

The core legal issue is birthright citizenship, stemming from the Fourteenth Amendment’s Citizenship Clause which says: “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.” And it’s that second part, “subject to the jurisdiction thereof” that is in contention.

Now during oral argument, Justice Neil Gorsuch summed up what many may think:

GORSUCH: It seems to me it’s a mess.

And Justice Samuel Alito wondered how to about modern legal troubles like people in the country illegally, when the drafters of the 14th Amendment weren’t thinking about that at all:

ALITO: Justice Scalia had an example that dealt with this situation. He imagined an old theft statute that was enacted well before anybody conceived of a microwave oven, and then afterwards someone is charged with a crime of stealing a microwave oven. And this --this fellow says: Well, I can't be convicted under this because a microwave oven didn't exist at that time. And he dismissed that.

Justice Alito making the point that general rules do get applied to future applications, unknown at the time the rule was written.

Justice Sonia Sotomayor questioned the government’s lawyer on practicalities:

SOTOMAYOR: You asked us to concentrate only on the prospective nature of the citizens order, but the logic of your position, if accepted, is that the next president --this president or the next president or a Congress or someone else, could decide that it shouldn't be prospective. There would be nothing limiting that according to your theory.

So the justices must grapple with putting historical text to modern-day dilemmas. 

And my two legal experts, they did go ahead with predictions that the president will lose this one by a 7-2 vote, but with splintered reasoning; lots of concurrences. 

I’ll have much more detail on the oral argument on Monday’s Legal Docket, so I hope you’ll join us then.

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