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Speaker 1: Lie from the heartland and the crossroads of America. It's

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Speaker 1: Tony Katz today.

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Speaker 2: So birthright citizenship in front of the Supreme Court. President

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Speaker 2: Trump was there, he was in the room. He was

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Speaker 2: there for the oral arguments being made by the Solicitor

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Speaker 2: General John Sower. And I will tell you I listened

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Speaker 2: to John Sower. I listened to a bunch of it.

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Speaker 2: I don't think he ended his conversation with the justices

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Speaker 2: on a winning note.

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Speaker 3: And that is true until I heard.

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Speaker 2: The lawyer for the ACLU fighting this executive order from

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Speaker 2: the President of the United States regarding birthright citizenship. Tony Katz,

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Speaker 2: Tony Katz today, Good to be here, Good to be

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Speaker 2: with you. This is anchor babies, however you want to

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Speaker 2: describe it, that's what this is. And so I bring

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Speaker 2: this to you right now as somebody who is not

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Speaker 2: a lawyer, an observer, maybe a better observer than some,

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Speaker 2: but certainly not a lawyer.

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Speaker 3: And even if I were a lawyer, to be a lawyer.

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Speaker 2: Within this context, to have a level of expertise, this

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Speaker 2: is very few people kind of stuff. There's a reason

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Speaker 2: Supreme Court justices have their stabs. They are indeed better

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Speaker 2: at this than the vast majority of US sands. Of course,

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Speaker 2: Katanji Brown Jackson, who was extra special today. I mean

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Speaker 2: she was extra extra terrific, especially with her questions about, hey,

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Speaker 2: you know, can I ask about parents in this whole argument.

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Speaker 4: If you don't mind, your view of this turns on

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Speaker 4: what the status of the parents are and not the child,

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Speaker 4: as would the born in the United States view of it.

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Speaker 4: Can you help us understand why we wouldn't expect to

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Speaker 4: see a mention of parents in the text of this amendment.

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Speaker 5: I think it was well understood that, for example, children

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Speaker 5: cannot newborns cannot form domicile.

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Speaker 6: So it followed every nineteenth century.

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Speaker 4: That assumes domicile is in the test. And I'm asking you,

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Speaker 4: how do we know that Congress did adopt the test

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Speaker 4: that you say it adopts.

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Speaker 5: When you look at nineteenth century conceptions of allegiance, the

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Speaker 5: notion that the allegiance again you.

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Speaker 6: Say domicile is instantiating.

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Speaker 5: The concept of allegiance for aliens as opposed to citizen.

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Speaker 5: All of that, the nineteenth century understands the newborns domicile.

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Speaker 5: It's allegiance follows the allegiance of the parents, And I

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Speaker 5: point out that their theory realies on parental allegiance as well,

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Speaker 5: because they recognize the exceptions for you know, hostile invading armies,

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Speaker 5: for tribal Indians, for ambassadors, again, the child's allegiant status

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Speaker 5: even on their view.

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Speaker 2: Your Now, it would seem to me that what justice

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Speaker 2: Katanji Brown Jackson is asking is why can't we just

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Speaker 2: trust the babies.

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Speaker 3: To make this decision?

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Speaker 2: As if parents have to be something that is uniquely

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Speaker 2: carved out as opposed to something that is understood.

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Speaker 3: There were a couple moments of just.

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Speaker 2: Well, that's Katanji Brown Jackson being Katanji Brown Jackson. Say,

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Speaker 2: let's get into a little bit of the meat of

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Speaker 2: this case, because this does matter, and I will tell

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Speaker 2: you that there is precedent, there is history, there is interpretation.

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Speaker 2: And one of the things that got discussed in depth

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Speaker 2: was this very common except of domicile. We talk about

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Speaker 2: the fourteenth Amendment, which reads a section one. All persons

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Speaker 2: born or naturalized in the United States and subjects of

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Speaker 2: the jurisdiction thereof are citizens of the United States and

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Speaker 2: of the state wherein they reside. Now, the clear argument

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Speaker 2: made by those of us who are of the layman

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Speaker 2: class is this is what we created in a putting

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Speaker 2: an end to slavery and ensuring that people were black

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Speaker 2: in America who clearly we're going to keep living here.

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Speaker 2: Our Americans have rights. That's the argument, that's the basis.

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Speaker 2: We look at subjects of the jurisdiction thereof and say,

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Speaker 2: somebody who snuck into the United States, snuck into the country,

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Speaker 2: well illegally crossed to the country, didn't even sneak, just

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Speaker 2: walked right through with Joe Biden. That person is not

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Speaker 2: subject to the jurisdiction thereof. Children that they have are

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Speaker 2: equally not subject to the jurisdiction there are. We talk

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Speaker 2: about parents as we just alluded to the I think

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Speaker 2: nonsense statement from Justice A. Jackson, and we get this

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Speaker 2: idea of well, to in order to be a citizen,

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Speaker 2: you have to be of here. And this brings up

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Speaker 2: this conversation of domicile which really dominated so much of

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Speaker 2: today's back and forth.

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Speaker 3: It was the massive amount of the case is this.

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Speaker 2: Question of well, what do you mean by by being

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Speaker 2: here living here?

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Speaker 3: Uh, and and and and how does that work?

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Speaker 2: And it came to a conversation from John Sour which

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Speaker 2: came to a conversation about the idea of loyalty and

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Speaker 2: the idea of an allegiance to the United States. So

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Speaker 2: this was part of the exchange between John Sower, who

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Speaker 2: is the Solicitor General and Justice.

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Speaker 4: That Jacks they were doing was departing from that common

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Speaker 4: law rule in the way that you suggest that is,

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Speaker 4: in the they were seeking to have this turn on domicile.

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Speaker 4: I think you have a number of hurdles to accomplish

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Speaker 4: those two things, one of which I think is that

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Speaker 4: when we look at this court's case law, no one

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Speaker 4: i think has mentioned Schooner's exchange, But it appears that

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Speaker 4: that was a nineteen eighteen twelve case in which it

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Speaker 4: seems as though the Court had already accepted at the

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Speaker 4: time of the ratification of the fourteenth Amendment that the

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Speaker 4: allegiance that you were talking about was the English common

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Speaker 4: law rule, that, in other words, allegiance meant.

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Speaker 6: That you are covered by the laws of.

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Speaker 4: The jurisdiction, that you can rely on the jurisdiction's protection.

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Speaker 4: That's what allegiance meant. Now you're saying today, no, no,

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Speaker 4: allegiance meant something about loyalty or that kind of idea.

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Speaker 4: But if the Supreme Court had prior to the Fourteenth Amendment,

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Speaker 4: established that allegiance meant the common law definition.

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Speaker 6: I think your first hurdle is to help us.

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Speaker 4: Understand why we would believe that when when the Fourteenth

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Speaker 4: Amendment was ratified, the framers weren't just incorporating what we

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Speaker 4: had previously said it meant.

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Speaker 5: Page five seventy two the Congression Record directly addresses this.

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Speaker 5: They say, the concept of temporary and local allegiance from

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Speaker 5: the schooner exchange is what is meant by our temporary

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Speaker 5: and local jurisdiction from the schooner exchange is what is

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Speaker 5: meant by the word jurisdiction in fourteenth Amendment. Trumbull says,

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Speaker 5: I thought about saying, oh, allegiance, but again, quote, there's

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Speaker 5: a sort of allegiance from persons temporarily resident in the

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Speaker 5: United States whom we have no right to make citizens.

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Speaker 6: So expressly in conscio. Okay, well, where did relies on us?

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Speaker 4: What do we do with I mean, that's a debate,

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Speaker 4: and it's the discussion very doubt Well.

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Speaker 2: If he's going to refute your point, Justice Jackson, and

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Speaker 2: you're not going to give him the credit for it

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Speaker 2: that he deserves.

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Speaker 3: I don't know what to do there.

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Speaker 2: I thought that was a pretty kind of telling maneuver

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Speaker 2: from Justice Jackson. This idea of domicile, this idea of

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Speaker 2: what makes a citizen, this idea of allegiance, all these

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Speaker 2: things came up in a lot of different ways. This

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Speaker 2: was of part of what I really thought made Solicitor

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Speaker 2: General Sower's argument was this idea of jurisdiction and this

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Speaker 2: very concept of the there has to be something provable,

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Speaker 2: And I think that the majority of Americans would kind

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Speaker 2: of see it that way. They would talk about in

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Speaker 2: the very general But there were some really interesting questions

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Speaker 2: that were brought up. Let's say an American citizen moves

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Speaker 2: to Norway. There's no intention of coming back to the

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Speaker 2: United States, but still the United States sitys and they

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Speaker 2: moved to Norway, they live in Norway, they domicile in Norway.

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Speaker 2: They come back to the US to visit Grandma. Amy

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Speaker 2: Coney Barrett asked this, they come to visit Grandma. I'm

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Speaker 2: kind of embellishing the story a little bit because I'm

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Speaker 2: a better storyteller than Amy Conny Barrett.

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Speaker 3: She's a better justice.

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Speaker 2: And while back in the US, Boom has a baby,

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Speaker 2: woman was pregnant, comes back to see Grandma Boom has

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Speaker 2: a baby. Is that baby an American citizen? She's an American,

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Speaker 2: she doesnt domicile here. Now at that moment, you start

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Speaker 2: grabbing bourbon because that's a really interesting question. And I

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Speaker 2: will guarantee you the vast majority of us who are

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Speaker 2: part of the show, we did not ask that question

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Speaker 2: to ourselves. That's a good question, right, we're not discussing

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Speaker 2: where we are with the baseline. You can't have people

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Speaker 2: crossing into the country having a baby and saying today

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Speaker 2: we're Americans. There are and you saw that. Look for

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Speaker 2: this producer Landon because John Sour this listener general here

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Speaker 2: it is no, I've got it, I've got it. Never

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Speaker 2: mind he brought this up. You want to talk about

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Speaker 2: good points. You may not know this because I did

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Speaker 2: not know the exact number until today.

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Speaker 3: There are.

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Speaker 2: Five hundred companies in China that do birth tourism.

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Speaker 7: You mentioned in your briefing and also this morning, the

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Speaker 7: problem of birth tourism. Do you have any information about

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Speaker 7: how common that is or how significant a problem it is.

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Speaker 6: It's a great question. No one knows for sure.

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Speaker 5: There's that March ninth letter from a number of members

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Speaker 5: of Congress to DHS saying do we have any information

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Speaker 5: about this? The media reports indicate estimates could be over

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Speaker 5: a million or one point five million from the People's Republic.

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Speaker 6: Of China alone.

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Speaker 5: The Congressional report that we cited in our brief talks

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Speaker 5: about certain hot spots like Russian elites coming to Miami

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Speaker 5: through these birth tours and companies. I mean, here's the

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Speaker 5: fact about it that I think is striking. Media reported

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Speaker 5: as early as twenty fifteen that, based on Chinese media reports,

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Speaker 5: there are five hundred five hundred birth tourism companies in

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Speaker 5: the People's Republic of China.

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Speaker 2: This is what we as Americans are addressing here. The

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Speaker 2: problem is because I had somebody in the chatter, and Mike,

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Speaker 2: I think it was you, right when I'm talking about

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Speaker 2: this case as Amy Cody Barrett brought it up. But

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Speaker 2: positive as woman in Norway, how often does that come up.

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Speaker 2: I'm worried about third world people dropping, you know, having

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Speaker 2: babies and then claiming citizenship. Right, Mike, you said it

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Speaker 2: a little more crudely than I did. Let's let's not

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Speaker 2: do that. But that is exactly where we all are right.

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Speaker 2: If we're sitting on the barstool, it's you and me

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Speaker 2: a barstool of bourbon. This is our conversation when we

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Speaker 2: gather for Thanksgiving, our holiday or whatever it is. And

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Speaker 2: when you get political, this is the conversation. You get

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Speaker 2: to come here, you have a kid. The next thing

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Speaker 2: you know, you're a citizen, and you get this and

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Speaker 2: that and the other. It's crazy. That's where the vast

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Speaker 2: part of the conversation is. But you can't not deny. No,

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Speaker 2: you can't deny, not can't not deny. You can't deny that.

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Speaker 3: There are other parts of this.

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Speaker 2: Conversation that once you open the box, it's all in there,

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Speaker 2: and so it has to be discussed so very much.

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Speaker 2: It seemed to me that the position of the administration

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Speaker 2: was here, actually here, properly here, one could say. The

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Speaker 2: argument from the ACLU, which is challenging this, seem to

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Speaker 2: stem from a case called Wang kim Ark. It's interesting stuff.

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Speaker 2: I claim no expertise. I've been reading and you're gonna

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Speaker 2: hear a lot about this case and the decision as

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Speaker 2: put forth by Justice Horace Gray. This goes back to

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Speaker 2: eighteen ninety eight Wang kim Ark is Chinese. He was

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Speaker 2: born in San Francisco to Chinese citizens. His parents are Chinese.

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Speaker 2: He lives in the United States. He's twenty one. He

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Speaker 2: takes a trip to China to visit his parents. So

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Speaker 2: sometime within his parents moved back to China. He goes

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Speaker 2: to visit his parents, he comes back to the US.

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Speaker 2: He's denied entry. Why he's not a US citizen. Now,

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Speaker 2: you got to also think of the time. You got

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Speaker 2: to think of things that were going on regarding Chinese nationals,

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Speaker 2: and there was a push.

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Speaker 3: To keep.

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Speaker 2: The Chinese out. There were a host of things going on.

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Speaker 2: But we set up some basic parameters there. He was

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Speaker 2: born here, that could be a parameter, and that was

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Speaker 2: a little bit or a lot of bit of what

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Speaker 2: the ACLU is relying on. He lived here, he then

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Speaker 2: went to China to visit. He came back and he

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Speaker 2: was told, you can't come in because you're not a citizen.

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Speaker 2: So it goes to the Supreme Court. This is eighteen

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Speaker 2: ninety eight. It's going to the Supreme Court. And so

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Speaker 2: it was whether or not a child born in the

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Speaker 2: US of parents of Chinese descent.

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Speaker 3: And this is how it reads.

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Speaker 2: An excerpt from Justice Horace Gray the majority opinion, who

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Speaker 2: at the time of his birth are subjects of the

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Speaker 2: Emperor of China, but have permanent domicylum residents in the

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Speaker 2: United States and are there carrying on business, and are

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Speaker 2: not employed in any diplomatic or fa capacity under the

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Speaker 2: Emperor of China, becomes at the time of his birth

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Speaker 2: a citizen of the United States by virtue of the

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Speaker 2: first clause of the fourteenth Amendment of the Constitution. Now

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Speaker 2: there is a really important line here about not employed

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Speaker 2: in any diplomatic or official capacity under the Emperor of China,

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Speaker 2: because there is this agreed upon recognition that if you

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Speaker 2: are the child of an ambassador that doesn't count. You

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Speaker 2: would not be a citizen of the United States. It

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Speaker 2: would not apply. And it seems outside of some things

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Speaker 2: I'm in not understand or had I've heard, it seems

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Speaker 2: to be this agreed upon practice. So what they ruled

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Speaker 2: is is that the statement of the fourteenth Amendment, all

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Speaker 2: persons born or naturalized in the United States and subjects

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Speaker 2: to the jurisdiction thereof are citizens of the United States

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Speaker 2: and of the state wherein they reside. Now he recognizes,

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Speaker 2: does the Justice that this was something that was set up,

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Speaker 2: and unquestionably to right the wrongs of dred Scott and

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Speaker 2: dread Scott came up today and to ensure that we're

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Speaker 2: talking about people who are black or we're slaves. But

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Speaker 2: when it says all persons, it says all persons. But

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Speaker 2: I think this goes back to this idea of domicile,

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Speaker 2: and the justices today pounded the ACLU on this by

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Speaker 2: saying it's one thing to say born, but the twenty

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Speaker 2: times he brings up domicile, it must mean a residence

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Speaker 2: in a survival and an existence in a place. Holy cow,

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Speaker 2: fantastic argument. Who's gonna win it? I'll give you my

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Speaker 2: thoughts coming up.

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Speaker 3: Keep it here. I'm Tony Katz. This is Tony Katz today,