Oral arguments before the Supreme Court on President Trump’s executive order ending birthright citizenship for children born to parents unlawfully or temporarily present in the United States produced a wide-ranging exchange that left the outcome difficult to predict, former federal prosecutor Joseph Moreno told Dan Proft on Chicago’s Morning Answer. Moreno, who served in the Justice Department’s National Security Division, was a staff member of the FBI’s 9/11 Review Commission, and is a US Army combat veteran, said the case ultimately turns on how six conservative justices reconcile their reading of the Fourteenth Amendment’s original meaning with practical consequences that no one in 1868 could have foreseen.
Proft highlighted an exchange between Solicitor General John Sauer and Chief Justice John Roberts in which Sauer cited Chinese media reports identifying five hundred birth tourism companies operating in China whose entire business model involves bringing pregnant women to the United States to give birth and return home with American citizen children. Roberts acknowledged the practical significance of the problem while pressing Sauer on whether it had any bearing on the legal analysis. Sauer argued that the interpretation of the citizenship clause currently embraced by courts has produced exactly the kind of consequences that the nineteenth century framers could not possibly have approved, and that the same constitutional provision should be extended to address reasonably comparable evils even in a changed technological environment where eight billion people are one plane ride away from giving birth on American soil.
Moreno said the three progressive justices present no analytical uncertainty and will reach whatever result their policy preferences require. The real question is how the six conservatives navigate the tension between their originalist commitments and their awareness that the policy implications of the current interpretation have become untenable. The honest originalist answer, he said, may well be that the Fourteenth Amendment was specifically designed to overturn the Dred Scott decision and confer citizenship on freed slaves, that this was its entire intended purpose, and that the modern practice of unlimited birthright citizenship for anyone born on American soil regardless of the parents’ status or intent was simply never contemplated. There is substantial historical and textual support for that reading, he said, but arriving at it requires conservative justices to accept that fixing what they may view as a policy disaster is within the court’s proper role rather than an exercise that belongs exclusively to Congress.
He identified two possible split-decision paths that could produce a narrower ruling without resolving the underlying constitutional question definitively. The first would be for the court to decline to rule on the meaning of jurisdiction in the Fourteenth Amendment and instead instruct Congress to clarify what the term requires, a punt that Moreno said would be practically problematic since the Supreme Court interprets the meaning of jurisdiction in dozens of contexts and claiming inability to do so here would be difficult to defend intellectually. The second would be to draw a distinction between people who have demonstrated intent to reside in the United States, even illegally, and purely transient visitors like birth tourists, holding that the former are subject to American jurisdiction while the latter are not. Moreno said that path would be Solomonic but practically difficult to administer, since establishing a legal threshold for intent to reside would immediately generate litigation over what factors satisfy it, pulling the court into quasi-legislative territory it would normally seek to avoid. He said he hopes the court gives a clean answer either way rather than producing a creatively ambiguous middle ground that resolves nothing.
The conversation shifted to the dismissal of Attorney General Pam Bondi, which Moreno said was not entirely surprising given a combination of factors. He said Bondi performed creditably in some respects, holding firm under Democratic pressure, but that the Jeffrey Epstein file handling, her early public promise to release the materials quickly followed by prolonged inaction, damaged her credibility. The prosecutions of former FBI Director James Comey and New York Attorney General Leticia James, both of which ran into significant difficulties, likely further eroded her standing with a president who measures results. He also noted that Bondi came to the job without the background of either a seasoned federal prosecutor and judge or a longtime Washington political figure, leaving her without the institutional knowledge necessary to manage a department full of career lawyers who are perfectly capable of waiting out a temporary principal they do not fear.
Moreno agreed with Proft’s observation that the framing of the attorney general as independent of the president, which Democrats deploy when out of power and Republicans deploy when out of power, has never been accurate as a legal matter since all Justice Department enforcement powers flow from the president’s Article II authority. But he said the appropriate relationship is not subservience either. A good attorney general owes the president honest independent legal advice, including advice the president does not want to hear, and the ability to make evidentiary judgments about which cases actually have the factual foundation to survive in court rather than pursuing prosecutions that satisfy political priorities but end in grand jury rejections or judicial reversal. He said whoever receives the appointment next, whether Todd Blanch, Lee Zeldin, or someone else, will face precisely the same structural challenge of threading the needle between presidential accountability and prosecutorial integrity, and that no attorney general in either of Trump’s terms has successfully navigated that tension for long.
On the related question of US attorneys placed in acting roles and subsequently removed by federal judges, Moreno said those episodes were distractions from what was otherwise a reasonably successful law enforcement record at the Justice Department, and that similar removals occurred in his home state of Virginia, producing months of litigation the department ultimately lost. He said it is somewhat puzzling when the administration insists on installing a particular person in an acting capacity even when that person lacks the qualifications to survive Senate confirmation, since the predictable result is exactly the kind of institutional embarrassment that consumes time and political capital better spent elsewhere.