Trump v. Barbara Symposium: Rachel E. Rosenbloom, The Solicitor General Crossed a Line in Trump v. Barbara
The symposium on the oral arguments in Trump v. Barbara continues below. More contributions are coming.
Immprof Blog Symposium on Trump v. Barbara
April 10, 2026
Rachel E. Rosenbloom
The Solicitor General Crossed a Line in Trump v. Barbara
There were two striking aspects of the oral arguments in Trump v. Barbara. The first was how much pushback Solicitor General D. John Sauer received, including from some of the conservative justices. The second was Sauer’s willingness to bend the truth (one might even say break it) in his attempt to answer the justices’ challenging questions.
As expected, Sauer argued to the justices that both the 1866 congressional debates on birthright citizenship and the Supreme Court’s 1898 decision in United States v. Wong Kim Ark reveal an intent to deny birthright citizenship to those born in the United States who cannot prove parental domicile and parental lawful status. To a large extent, these arguments fell within the normal limits of what lawyers do: Sauer offered interpretations that have been deemed implausible by many judges and scholars but that nevertheless drew on the actual words of the relevant texts. The argument took an unexpected turn, however, when Sauer endeavored to overcome the justices’ skepticism about his theory.
As the old saying goes, if the facts are on your side, pound the facts. If the law is on your side, pound the law. And if neither is on your side, pound the table. Sauer, however, went far beyond pounding the table. Faced with the tough task of upending an understanding of birthright citizenship that has been widely accepted for generations, he made some assertions that had no basis in fact.
One key exchange came when Justice Gorsuch pushed the Solicitor General on the question of domicile. If domicile was so important to the framers of the Fourteenth Amendment, Gorsuch asked, why did no one mention it in the congressional debates in 1866? “[T]he absence,” Gorsuch remarked, “is striking.” In response, Sauer described, and quoted, President Andrew Johnson’s message vetoing the Civil Rights Act of 1866, which was drafted shortly before the Fourteenth Amendment and also included a guarantee of birthright citizenship. Sauer described Johnson’s message as follows: “President Johnson vetoes the first version of the Civil Rights Act, and he says . . . I can't sign this because it would extend . . . citizenship to the children of ‘all domiciled aliens and foreigners, even if not naturalized.’”
If Johnson had actually described the Civil Rights Act’s citizenship provision in that way, such a statement would be a strong point in the government’s favor, showing that Johnson understood there to be a parental domicile requirement in the provision. But that is not what Johnson said. In fact, his veto message said precisely the opposite. Johnson’s actual words were:
This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, people of color. . . . Every individual of these races born in the United States is by the bill made a citizen of the United States.
Every individual. Which is very different from “children of ‘all domiciled aliens and foreigners’” – so different, in fact, that Johnson’s veto message strongly supports the position of those challenging the executive order (and was quoted in at least two of the amicus briefs on that side of the case).
The words that Sauer quoted did actually appear in the veto message, but they were in a later passage in which Johnson told Congress that there was no need to eliminate the racial restrictions on birthright citizenship because civil rights were, “by Federal as well as State laws, secured to all domiciled aliens and foreigners, even before the completion of the process of naturalization.” Leaving aside whether that was an accurate characterization of the law as it stood in 1866 (it was not), it is clear that Johnson was not talking about the scope of birthright citizenship. Rather, he was talking about the rights that someone might have even if not a citizen.
This was not the Solicitor General’s only misstatement that day. As Prof. Evan Bernick has pointed out, Sauer also mischaracterized a 1921 law review article written by Richard Flournoy. Sauer told the justices:
[I]n 1921, Richard Flournoy, who becomes a senior State Department official in the Roosevelt administration and pushes their theory as to temporary sojourners, writes a Law Review article in 1921 where he says: I think that children of temporary visitors should be citizens. But he admits that is not the understanding of Wong Kim Ark. He admits Wong Kim Ark did not hold that.
In fact, Flournoy said no such thing. Flournoy’s article did acknowledge that Wong Kim Ark, along with the earlier case In re Look Tin Sing, concerned individuals whose parents were domiciled in the United States. But Flournoy characterized the decisions as supporting a broad rule of birthright citizenship, noting that they both “relied to a considerable extent upon the decision in Lynch v. Clarke, in which the person concerned, who was declared to be a native citizen of the United States, was born in this country of alien parents who were mere sojourners” and that the decisions were, more importantly, grounded in English common law, which “makes no distinction between persons born in the country of alien sojourners and those born of domiciled aliens.”
In other words, Sauer once again took a source that supported those challenging the executive order, and described it to the justices as supporting the government’s position. Other examples of such behavior during this litigation include characterizations of the 1866 debates that appear in the government’s opening brief in Trump v. Barbara, as pointed out by the ACLU in its brief, and, as Ilya Somin points out in his contribution to this symposium, Sauer’s comments at the oral argument regarding the pre-Civil War status of enslaved people who were brought to the United States in violation of the law.
It has been a recurring theme that advocates for restricting birthright citizenship have bent the truth in significant ways in describing relevant texts and history. The recent examples harken back to a skirmish over accuracy that erupted in an earlier phase of the attack on birthright citizenship. Back in 2015, when Donald Trump’s statements on the campaign trail generated a flurry of attention to birthright citizenship, political scientist Edward Erler published a piece in the National Review that included an altered passage from the 1866 debates. Erler is a senior fellow at the Claremont Institute, a think tank that has been at the center of attacks on birthright citizenship. (The most prominent face of the organization is another birthright citizenship critic, John Eastman, who has been indicted in connection with his role in attempting to overturn the 2020 election and has been recommended for disbarment in California.) In an opinion piece arguing for a restrictive reading of the Citizenship Clause, Erler quoted Senator Jacob Howard, the author of the Citizenship Clause, as saying: “This will not, of course, include persons born in the United States who are foreigners, aliens [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
The National Review later changed the quote to its actual wording, taking out the “[or]” and restoring a crucial comma: “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” The piece now includes an editor’s note disclosing the change (along with an unrepentant rebuttal from Erler). Former Trump advisor Michael Anton (another Claremont Institute fellow), inserted the same bracketed language in a Washington Post op-ed in 2018, prompting an editor’s note stating that the Post “should have asked Anton to publish it unaltered and then explain his interpretation rather than publishing it with the inserted word.” (Anton, at least, kept the comma in.)
It is one thing to bend the truth in an op-ed, where an editor’s note can provide clarification to any future readers. It is quite another to do so in an argument before a court. Rule 4.3.3 of the Missouri Rules of Professional Conduct, Candor Toward the Tribunal, governs the actions of Sauer, who is a member of the Missouri bar. It requires that an attorney “shall not knowingly . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The Department of Justice has owned up to misstatements on prior occasions, including in a 2012 letter alerting the Court to inaccurate information contained in a DOJ brief in the 2009 case Nken v. Holder, and in a 2016 letter disclosing inaccurate statistics provided to the Court in a 2003 case, Demore v. Kim.
Sauer’s statements are far from the most outrageous ones made by attorneys seeking to restrict birthright citizenship. (That distinction would go to former California Attorney General Ulysses S. Webb, whose arguments in a 1942 birthright citizenship case openly embraced white supremacist ideology, as I describe in a forthcoming law review article.) Nevertheless, Sauer’s statements during the oral argument were either egregious errors or outright fabrications. Thankfully, the inaccuracies can be easily discovered by the justices and their clerks as they check the sources in question. Nevertheless, the Solicitor General owes a duty to the Court to disclose them.
