Solicitor General D. John Sauer found himself tangled in a pointed line of questioning from Justice Neil Gorsuch on Wednesday, struggling to answer whether Native Americans qualify as birthright citizens under the very legal framework the Trump administration is using to challenge birthright citizenship for children of illegal immigrants and temporary visitors.
The exchange came during two hours of oral arguments at the Supreme Court in a case challenging President Trump's 2025 executive order aimed at ending birthright citizenship. And by most accounts, the administration's position did not fare well.
At issue is the Fourteenth Amendment's guarantee that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Trump administration has pushed to read the phrase "subject to the jurisdiction" narrowly, arguing it should exclude children born to illegal immigrants and temporary visitors. Sauer carried that argument to the bench. The Hill reported on the exchange that followed.
Gorsuch asked Sauer directly whether he believed Native Americans are birthright citizens. The question was not academic. For more than fifty years after the Fourteenth Amendment was approved in 1866, Native Americans were denied birthright citizenship precisely because of the "subject to the jurisdiction" language the administration now wants to revive.
Sauer's first answer was no:
"No, I think the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens."
Gorsuch then shifted the question. What about Native Americans whose parents were lawfully domiciled in the United States? Sauer adjusted course:
"I think so, on our test. They're lawfully domiciled here. I have to think that through, but that's my reaction."
Gorsuch's reply was dry and immediate: "I'll take the yes."
The problem for the administration is obvious. If the government's own legal test produces uncertainty about whether Native Americans, citizens since 1924 under federal law, qualify for birthright citizenship, it raises hard questions about how that test would apply to millions of other people born on American soil.
Sauer's difficulty with the Gorsuch exchange was not an isolated moment. National Review's Dan McLaughlin wrote that the argument "was expected to be hard sledding for Solicitor General D. John Sauer, and it was," adding bluntly: "There wasn't anyone unambiguously taking Sauer's side."
That assessment aligns with what other observers noted. The New York Post reported that multiple conservative justices appeared unconvinced by the administration's position. Chief Justice John Roberts called Sauer's historical examples of exceptions to birthright citizenship "quirky." Justice Amy Coney Barrett said reinterpreting existing law and practice would be "messy in some applications." Gorsuch went further, characterizing some of Sauer's supporting authorities as "Roman law."
For those keeping score at home, that is three Trump-appointed justices, Gorsuch, Barrett, and the Chief Justice, all signaling skepticism toward the administration's reading of the Constitution. Gorsuch in particular has shown a willingness to break with the administration on major cases, as seen in his lengthy solo rebuke of fellow justices in a landmark tariff ruling.
The case, identified as Trump v. Barbara, was argued on April 1, 2026. President Trump himself attended the argument briefly. AP News reported that Trump entered the courtroom around 9:45 a.m. and left thirteen minutes into ACLU attorney Cecillia Wang's arguments. The New York Post characterized Trump's departure as a signal that the administration sensed it was losing.
The Gorsuch line of questioning drew its force from a well-known chapter in American constitutional history. When the Fourteenth Amendment was ratified, its framers debated the meaning of "subject to the jurisdiction thereof." That phrase was used for decades to deny citizenship to Native Americans born within U.S. borders, on the theory that tribal members owed allegiance to their own nations, not to the United States.
It took the Indian Citizenship Act of 1924, signed by President Calvin Coolidge, to settle the matter by statute. That law declared that all "non-citizen Indians born within the territorial limits of the U.S." are citizens. It also specified that granting citizenship "shall not in any manner impair or otherwise affect the right" of any Native American to tribal or other property.
In other words, the very jurisdictional argument the Trump administration now deploys against children of illegal immigrants was once used to exclude Native Americans. Congress eventually overrode that exclusion by statute. But if Sauer's "test", centered on lawful domicile and jurisdiction, cannot clearly account for Native Americans without hesitation and qualification, it invites the Court to ask what else the test would get wrong.
That tension has been building since the Supreme Court first agreed to take up the birthright citizenship fight, a case many legal observers expected to test the outer limits of executive power over immigration and constitutional interpretation.
Rep. Teresa Leger Fernández, a New Mexico Democrat, posted a rebuke on X after the arguments. "Imagine going before the Supreme Court to attack birthright citizenship and being unable to say Native Americans are American citizens," she wrote. She added: "This was never about the Constitution. It's about exclusion."
That framing, that the executive order is motivated by exclusion rather than constitutional principle, is a Democratic talking point, not a legal finding. But the Gorsuch exchange gave it oxygen. When the government's own lawyer cannot offer a clean yes-or-no answer on whether Native Americans are birthright citizens under his proposed test, opponents do not need to work hard to make the case that the test is unworkable.
The broader political dynamic is also worth noting. Trump has publicly clashed with his own Supreme Court appointees before, expressing sharp frustration when justices he nominated ruled against his administration. Whether a loss in Trump v. Barbara triggers a similar reaction remains to be seen, but the oral arguments suggest the administration faces long odds.
The Court has not yet issued its ruling. But the tone of Wednesday's arguments, two hours of sustained skepticism from across the ideological spectrum, offers little comfort to the administration. No justice appeared to be an unambiguous ally for Sauer's position.
There are legitimate constitutional questions about the scope of birthright citizenship and the meaning of the Fourteenth Amendment's jurisdictional clause. Serious legal scholars have debated them for generations. Justice Alito's textualist approach to the clause has drawn attention in related proceedings. The issue is not going away, regardless of how the Court rules.
But the vehicle matters. An executive order that attempts to rewrite more than a century of settled practice, and whose chief defender cannot clearly affirm that Native Americans are birthright citizens under his own framework, is not the strongest way to advance that argument. If the administration loses this case, it will not be because the underlying question lacks merit. It will be because the legal strategy invited exactly the kind of scrutiny it could not survive.
When your own test cannot account for citizens who have held that status for a hundred years, the problem is not the Constitution. It is the test.
