Donald Trump sent his main lawyer to the Supreme Court to argue that babies born in the U.S. should no longer automatically be American citizens. The argument didn’t go well at all. His own lawyer, the Solicitor General, almost said that Native Americans aren’t citizens either — but was saved by a justice who was appointed by Trump.
One of the most shocking moments of Wednesday’s already bad hearing came when Justice Neil Gorsuch — who was picked by Trump — asked the Solicitor General, D. John Sauer, a simple question.
He asked if, under the administration’s proposed idea, Native Americans born today would automatically be citizens.
Sauer’s answer was a mess.
At first, he said yes — which made sense. But Gorsuch pushed him to ignore the laws that already make Native Americans citizens and answer based only on the administration’s own legal idea. Sauer changed his answer: “No.” He explained that under the 1868 debates, children of Native Americans weren’t considered citizens at birth.
The courtroom went silent.
Gorsuch kept pushing.
He asked again: Under your test — the one you want the court to accept today — are Native Americans born on U.S. soil automatically citizens?
Sauer stumbled.
“I think so… I have to think about it more, but that’s my reaction.”
Gorsuch replied, “I’ll take the yes.”
It was like he was throwing Sauer a life preserver before he could sink any further.
Let’s be clear about what just happened.
The Trump administration came to the Supreme Court with a legal idea that was so broad and poorly thought out, that when a justice applied it logically, the government’s lawyer couldn’t even say for sure that Native Americans — people whose nations existed on this land long before the United States — would be considered citizens.
This is the kind of constitutional confusion that Trump’s executive order invites.
Once you start questioning the 14th Amendment’s promise that everyone born in the U.S. is a citizen, there’s no clear stopping point. The administration’s own lawyer showed that in real time, in front of the whole country, while Trump was still in the building — before he ran away.
The 14th Amendment was written to be clear, exactly because the U.S. had already seen the terrible consequences of deciding that some people born here weren’t actually citizens.
The Supreme Court has supported birthright citizenship for 157 years.
And Trump’s lawyer just showed, in a very obvious way, exactly why those 157 years of legal history exist.
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