The Birthright Citizenship case is the biggest case of this U.S. Supreme Court case of the term, and the oral argument took place on Wednesday, April 1, 2026.
I offered my immediate take during an interview with Ike Wingate on Newsmax that afternoon:
(Transcript auto-generated, may contain transcription errors, lightly edited for transcript clarity)
Wingate:Joining us, Mr. Jacobson. Now what happens if the Supreme Court were to rule in the president’s favor?WAJ:Well, the executive order at issue here says the federal government will not recognize or issue documents recognizing the citizenship of children whose mother was in the country illegally. And the father was not a permanent resident, or who were here temporarily, and the father was not a permanent resident or citizen.So it’s going to end what is frequently referred to as ‘anchor babies’. You can’t just fly here and have a child, and all of a sudden that child becomes a US citizen. So it’s going to have a profound impact on how we view our borders, how we view our sovereignty, how we view our citizenship. I don’t know how many people it’s actually going to affect in the short run, but it changes the way we look at who is a citizen,Wingate:Right? I mean, there’s only 28 countries in the world out of 195 that allow something like this, and even less that allow what we allow, which is, you know, for anchor babies to happen without even being a citizen. What do you think of the president, though, attending in person? What kind of message do you think he was trying to send maybe to the country and to the Supreme Court?WAJ:I don’t think the Supreme Court’s going to be intimidated by him being there. A lot of people have complained about that. It is highly unusual for a president to attend oral argument, but the Justices can read the news, they can watch the TV. They know the politics of this, whether he’s in the courtroom or not. So I don’t think that’s going to have a huge impact. But they do know much like the abortion issue, much like many of the issues they deal with, no matter how they rule, there’s going to be blowback.Wingate:Okay. And so, as I mentioned as, we are in the minority, why do you think that is? Why do you think that we have gone this long without finally addressing this issue when there’s so many abuses? I mean, do you think this is intentional and oversight or maybe the resistance to finally get in there and get their hands dirty and handle this? How has this been allowed to go on for so long, do you think?WAJ:I think a narrative gets set and it got set almost a century ago, and it becomes a popularized narrative. And if you watch any of the so-called legacy mainstream media, they just assume that if you are born here, you’re a citizen. But that’s not even what the 14th Amendment says. It says if you were born here and ‘subject to the jurisdiction thereof.’ And those words have to have meaning.So there’s been a popularized conception of birthright citizenship, which may not be accurate. And that’s what the argument was today.I think one of the big takeaways is this challenge to birthright citizenship has been dismissed as frivolous, as meaningless, as bad faith. But these Justices took it very seriously, and I don’t think anybody can predict how this is going to come out.It was really a jump ball. The Justices had very probing questions for both sides. This is not a clear issue. It’s not well defined in the Constitution what that wording ‘subject to the jurisdiction thereof’ means. So I think this is a serious case.I think it shows how a lot of the things that we’re taught as children about the constitution and about our society may not actually be accurate. And I think this is a very serious challenge. I can’t predict how it’s going to come out, but it’s a jump ball.Wingate:Yeah. Well, I’ll save my question about asking what your prediction is, but you would think the context of it being part of the reconstruction amendment would be important in the matter, especially for the textualists, because you would think the timing has something to do with this. Am I off in that assumption? Or does it legally have to be treated as its own separate amendment as if the rest of them didn’t exist?WAJ:I think that everybody recognizes, I don’t think it’s disputed, that the purpose of this amendment and this citizenship clause was to enable freed slaves and the children of slaves to be recognized as citizens. I don’t think that’s disputed. But the question is, what does the wording mean?The wording of the constitutional amendment doesn’t say this is limited to freed slaves, even though everybody knew that’s what it was about. And so the question is that wording, that limitation not being in the Constitution, how do we apply it?And during the oral argument that I listened to the entirety today, there were a lot of examples that came up. It comes up very frequently in the Second Amendment context, the right to bear arms. We didn’t have the sort of rifles and guns back when that was passed, when the Constitution was ratified that we have now, yet we apply the Second Amendment to these newer technologies.And that was one of the things. The Constitution doesn’t say it’s only limited to slaves. It also doesn’t say that it’s applies to people who were here illegally or who were here, not domiciled. There wasn’t the concept of immigration back then that there is now. But it doesn’t talk about that. It doesn’t talk about a lot of things.So the question is, you have a principle stated in the Constitution, how do we apply it in this more modern context? And that’s really what the argument is about, because the language is subject to varying interpretations.Wingate:Right. Yeah. Understood. I just don’t think the founders could have fathomed where we are today. But it is good to hear your perspective. Some of the leftist headlines out there are, you know, doom and gloom on this for the Trump agenda and the birthright citizenship issue. So William Jacobson, it’s been a pleasure having you on. Thank you for joining us.
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