Trump Lawyer Struggles with Supreme Court’s Question About Whether Native Americans Are Birthright Citizens: ‘Uh, I Think So?’

The justices appeared largely unmoved by the government’s argument that President Donald Trump’s executive order to end birthright citizenship does not violate the Constitution

A recent Supreme Court exchange has drawn attention after a government attorney faced questions about how birthright citizenship policies might apply in specific cases. The discussion came during arguments related to an executive order proposing changes to long-standing citizenship rules.

The Supreme Court heard oral arguments in a case challenging Trump’s order, which he signed just hours into his second term, on Wednesday, April 1. Trump broke with longstanding precedent in attending the hearing, the first sitting president to do so.

The court’s nine justices, three of whom were appointed by Trump during his first term, aggressively questioned Sauer, appearing largely unswayed by the government’s argument that Trump’s order does not violate the 14th Amendment’s assurance that “all persons” born in the U.S. are citizens.

The president’s order, intended to deny citizenship to the children of undocumented immigrants, would extend citizenship only to those with “lawful domicile” in the U.S., Sauer said on Wednesday, defined as a lawful permanent residence within the U.S. “with intent to remain.”

Asked by conservative Justice Neil Gorsuch, a Trump appointee with an extensive background in tribal law, whether Native Americans would be considered birthright citizens under the government’s test, Sauer could not say for sure.

“Uh, I think so? I mean, obviously they’re granted citizenship by statute,” Sauer said, referring to the Indian Citizenship Act, the 1924 law granting automatic citizenship to American Indians born in the U.S.

“But aside the statute, you think they’re birthright citizens?” Gorsuch pressed.

“No,” Sauer responded. “I think the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens.”

“I understand that’s what they said, but your test is the domicile of the parents, and that would be the test you’d have us apply today, right?” Gorsuch said.

“Yes, yes,” Sauer said. “So, if a tribal Indian, for example, gives up allegiance —”

“Are tribal Indians, born today, birthright citizens?” Gorsuch interrupted.

“Uh, I think so, on our test, if they’re lawfully domiciled here,” Sauer replied. “I’m not sure. I have to think that through, but that’s my reaction.”

“I’ll take the ‘yes,’ ” Gorsuch said.

Trump has long argued against birthright citizenship, often claiming incorrectly that the U.S. is alone in its promise of automatic citizenship to those born within its borders.

“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!’ ” he fumed on Truth Social after leaving the courtroom on Wednesday. More than 30 countries worldwide have birthright citizenship laws comparable to the U.S., according to the Pew Research Center, and another 50 have similar but more limited laws.

The president has also argued that the 14th Amendment, ratified in 1868 at the end of the Civil War, was meant only to grant citizenship to freed slaves, not every individual who is born in the U.S.

“Birthright Citizenship is not about rich people from China, and the rest of the World, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America. It is about the BABIES OF SLAVES!” he wrote in a social media post on Monday, March 30. “Look at the dates of this long ago legislation – THE EXACT END OF THE CIVIL WAR!”

The Supreme Court is set to rule on a challenge brought against Trump’s executive order by the American Civil Liberties Union this summer.