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Posted on 04/01/2026 8:39:38 AM PDT by Miami Rebel
Trump-appointed Supreme Court Justice Neil Gorsuch roasted Solicitor General John Sauer over the citations in his argument during oral arguments in the highly-anticipated birthright citizenship on Wednesday.
Trump signed an executive order ending birthright citizenship during the first days of his second term, which was promptly blocked by a lower court in a ruling that was upheld by a three-judge panel of the 9th U.S. Circuit Court of Appeals.
The Supreme Court heard arguments in the case — Trump v. Barbara — on Wednesday morning, with Trump in attendance. While it’s tough to forecast based on questioning, things did not seem to be going great for Sauer early on.
Chief Justice John Roberts expressed undisguised skepticism during one exchange, and Gorsuch’s tone was near-mocking as he roasted Sauer’s references rooted in “Roman law”:
JUSTICE NEIL GORSUCH: I’m just working within your argument for a moment. Today you can point to laws against immigration that are much more restrictive than they were in 1860. 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 any immigration laws. 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?
SOLICITOR GENERAL JOHN SAUER: I would first cite Wong Kim Ark on that point because Wong Kim Ark says you’re
JUSTICE NEIL GORSUCH: Well, I’m not sure how much you want to rely on Wong Kim Ark.
SOLICITOR GENERAL JOHN SAUER: But that 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 Kim Ark in 1899.
JUSTICE NEIL GORSUCH: 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 you’re going to.
SOLICITOR GENERAL JOHN SAUER: First and second, restatements, as well–.
JUSTICE NEIL GORSUCH: Yeah– but– but.
SOLICITOR GENERAL JOHN SAUER: –and decisions of this court–
JUSTICE NEIL GORSUCH: So it wouldn’t be the INA that would control whether you’re capable of having Donna silent. It would be whatever the law was in 1868.
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, baking in allegiance in Tomasson is applied to.
JUSTICE NEIL GORSUCH: 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.
SOLICITOR GENERAL JOHN SAUER: The original meaning of domicile. And so the question is, is there any 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.
JUSTICE NEIL GORSUCH: Whose domicile matters? I mean, it’s not the child, obviously. It’s the parents you’d have us focus on. And is it the husband? Is it the wife? What if they’re unmarried? Whose domicile?
SOLICITOR GENERAL JOHN SAUER: Well, in the executive order, it draws a distinction between the mother and the father. That’s really the mother’s domicile. I think that would matter.
JUSTICE NEIL GORSUCH: Well, but 1868 matters, you’re telling us, so what’s the answer?
SOLICITOR GENERAL JOHN SAUER: The 1868 sources talk about parental not aware of them drugging a six-year-old mother or father, but they say the domicile of the child follows the domicile of a parent.
JUSTICE NEIL GORSUCH: And how are we going to determine domicile? I mean, would we use contemporary sources on what qualifies as domiciled in a state, or do we look in 1868 and do we have to do this for every single person?
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 domiciled, when you’ve come to a new nation, you say, I’m here for it 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.
JUSTICE NEIL GORSUCH: And just to circle back to Justice Kagan’s point, it’s striking that in none of the debates do we have parents discussed. We have the child’s citizenship and the focus of the clause is on the child, not on the parents. And you don’t see domicile mentioned in the debates. That’s the absence is striking.
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 domiciles of their parents, so I don’t think they would have seen a distinction between children and parents. I point out that their position, like ours, is forced to look at the domicile of the parents because we look at exceptions that they accept.
JUSTICE NEIL GORSUCH: I’m talking about in the debates over the 14th Amendment and the Civil Rights Act. It’s striking that these concepts aren’t discussed in them.
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It’s unlikely that the court will make any attempt to even slow down the Great Replacement. There really is no argument that could be made that could convince them to agree with Trump.
It’s been interesting hearing Sauer ignore original intent in his arguments.
Anglo-American jurisprudence has its very roots in Roman common law.
Sad to see our top legal dogs don’t know that.
How many times have the Communist DemonRATS thrown out Trump’s
utilization of immigration laws “because they were old and obsolete” but demand that the commie “birthright citizen” crap is still valid because the dumbass politicians and “judges” have been using it for centuries?
One of the major roots of our Constitutional Republic.
Perhaps if Trump had the slightest help from congress he could get something done. Of course that would require them to actually come back from vacation and do something, ANYTHING!
We are cooked. I hope all these open border dimwits enjoy their granddaughters carrying inbred offspring by force.
That was the Roman Republic inspired by Greek Republicanism before Rome was degraded into an imperial democracy.
There are eight billion people on the Earth. Perhaps seven billion would probably like to come to the United States. This is obviously unsustainable. We can pass laws making it illegal to come here. However, if they DO come here illegally and their children born here are granted citizenship, then any laws forbidding illegal entry are futile. Illegal entry cannot be rewarded.
Gorsuch is an actually textualist and originalist. He was lauded as one when he was nominated. He has been one ever since he got the bench.
Asking him to write law from the bench is a fool’s errand - he’s been lifelong consistent on that front.
It was thanks to that he helped fix the Roe mistake. People shouldn’t expect him to become a liberal expansionist just because they’d prefer that on this matter.
The article obscures the important point that Sauer was making. It is impossible for an illegal alien to establish domicile in the US when they are here illegally. Therefore, their children can not claim citizenship.
Prior to the 20th century, there was no such thing as illegal immigration because the US was not the powerful economic magnet that it is today. Once the US became the largest economy in the world, countries like China, Cuba, and Latin American dictatorships saw it as a way to offload their poverty and exploit the generous US welfare system to destroy it economically.
Gorsuch playing gotcha isn’t at all convincing, in 1868 , Chinse government could not put an 8 month 3 week gestation female on a plane to LA and tell her see ya in two weeks. Boy needs slapped upside the head.
That’s sad, but there is a silver lining. It’s called the 2026 midterms.
just in the confines of what is reported here, why did Congress include the phrase, “and subject to the full jurisdiction?” Is it originalist to selectively edit the statute?
is the session over, or just in recess?
Birthright citizenship remains (7-2) an unwritten ‘tradition’ and the nation continues its swirl down the cesspool to te third world sewer. The four gals will cry “THINK OF THE CHILDREN” Roberts and Gorsuch don’t dare give up the invitations to the cool kid parties, and Kavenaugh doesn’t want to be yelled at by the gals anymore.
Why isn’t Saur citing Vatel’s Law of Nations? His definition of jurisdiction regarding birthright is very clear.
And he should be arguing that the parents coming here illegally are not within the jurisdiction of the US but the jurisdiction of the country they currently have citizenship in. Therefore it follows their child’s jurisdiction is the same as the parent.
I should be arguing this case. 😆
it’s mediate, since when did we start accepting Mediates deep bias’d narrative of any story they report on.
Having heard some of the proceedings it did not come acrss to me as anything more probing the logic of the argument.
not true we are decendants of great Britain. very different jurisprudence. one reason they are avoiding blackstones has to do with statements in the book that anyone who gives birth while in the kings domain is a subject to the king and can expect to be protected by the king and also obligated to pay taxes for that protection.
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