Ask Jordan: Did Sauer’s “New World” Argument Undermine the Case Against Birthright Citizenship?

Yes — last week’s Supreme Court hearing in Trump v. Barbara had an oddly inverted quality that highlighted a central legal tension over birthright citizenship.

Solicitor General John Sauer told Chief Justice John Roberts that modern "birth tourism" undercuts longstanding assumptions and creates a "new world" where "8 billion people are one plane ride away from having a child who’s a U.S. citizen." Roberts replied sharply: "Well, it’s a new world. It’s the same Constitution."

Originalism vs. Policy Arguments

Sauer’s appeal to contemporary circumstances captures the core choice facing the Court. If the justices apply the originalist and textualist methods that have become dominant in conservative jurisprudence, the administration’s case looks weak: President Trump’s executive order, issued on his first day in office, seeks to overturn federal law, the long-standing interpretation of the 14th Amendment, and more than a century of precedent establishing that birth on U.S. soil generally confers citizenship.

But if the Court allows policy considerations — such as concerns about "birth tourism" or comparative practices abroad — to influence constitutional interpretation, the outcome becomes less certain. The tenor of the justices’ questions at the hearing, however, suggested skepticism toward the administration’s legal theory, making a loss for the government more likely, though the Court’s final ruling is still expected later in the spring or early summer.

Pushback From the Bench

Roberts was not alone in questioning the government’s approach. Justice Brett Kavanaugh pushed back when Sauer repeatedly cited how other countries handle citizenship. Kavanaugh reminded the solicitor general that the Court interprets "American law with American precedent based on American history," calling foreign rules a relevant policy comparison but of limited constitutional weight.

"I guess I’m not seeing the relevance as a legal constitutional interpretive matter necessarily, although I understand it’s a very good point as a policy matter," Kavanaugh said.

Sauer acknowledged the point but continued to argue that European countries allow different citizenship rules and yet "the world hasn’t ended there." That line underscored the administration’s effort to use international practice to bolster an argument the Justices deemed legally marginal.

Political Overtones

The hearing also reflected the political stakes. President Trump attended in person — an unusual move for a sitting president — and later posted on Truth Social that the U.S. is "the only Country in the World STUPID enough to allow 'Birthright' Citizenship!" That claim is misleading; many nations follow differing rules on jus soli (birthright citizenship) versus jus sanguinis (citizenship by descent).

To the extent Sauer pressed arguments aligned with the president’s policy preferences, it may have weakened the purely legal case rather than strengthening it — possibly because the solicitor general’s legal footing in this particular challenge is fragile.

Context From Past Opinions

The exchange also revived an older conservative critique: the objection to using foreign law in interpreting the U.S. Constitution. In Roper v. Simmons (2005), which barred executions for crimes committed under age 18, Justice Antonin Scalia criticized the majority for relying on foreign views. That skepticism reappears when modern policy arguments invoke other countries’ practices to inform American constitutional meaning.

What’s next: The Court’s decision is anticipated in the spring or early summer. If the justices adhere to textualist and originalist principles, the administration will likely lose; if policy considerations carry the day, the outcome could surprise observers.

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