The U.S. Supreme Court began hearing arguments Thursday in Donald Trump’s attempt to broadly enforce his executive order to limit birthright citizenship, a move that would affect thousands of babies born each year as the Republican president seeks a major shift in how the U.S. Constitution has long been understood.
The justices are considering the administration’s emergency request to scale back injunctions issued by federal judges in Maryland, Washington and Massachusetts, blocking Trump’s directive nationwide. The judges found Trump’s order — a key part of his hardline approach toward immigration — likely violates citizenship language in the U.S. Constitution’s 14th Amendment.
Trump’s order was challenged by Democratic attorneys general from 22 states, as well as individual pregnant immigrants and immigrant rights advocates.
The case is unusual in that the administration has used it to argue that federal judges lack the authority to issue nationwide, or “universal,” injunctions, and have asked the justices to rule that way and enforce Trump’s directive even without weighing its legal merits.
U.S. Solicitor General D. John Sauer, arguing for the Trump administration, called the increasing use by judges of universal injunctions a “pathology.”
Universal injunctions have become increasingly contentious and have been opposed in recent years by both Republican and Democratic administrations. Judges often have impeded Trump’s aggressive use of executive orders and other initiatives this year, sometimes employing universal injunctions.
The plaintiffs and other critics have said Trump’s directive is the quintessential example of a case in which judges should retain the power to issue universal relief, even if that power is curtailed by the Supreme Court.
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Different explanations for rise in nationwide injunctions
There were 17 nationwide injunctions in the first two months of this Trump presidency, more than the entire presidencies of Joe Biden (14 overall), Barack Obama (12) and George W. Bush (6), according to the Center for American Progress. During Trump’s first presidency, according to that same liberal think-tank, there were 64 nationwide injunctions.
Conservative Justice Clarence Thomas agreed with Sauer that universal injunctions “have proliferated over the last three decades or so.”
Many Republican lawmakers and policy experts argue those numbers are evidence that the legal system has been “weaponized” against Trump, while Democrats counter that the increase reflects the fact that no modern president has tested the limits of the law more than Trump.
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The issue is intertwined with concerns of “judge shopping,” where interest groups and plaintiffs of all kinds file lawsuits before judges they perceive as political allies or friendly to their causes. The Judicial Conference of the United States, the policymaking body for the federal courts, has been in the process of issuing guidance to curtail the practice.
Trump’s executive order in this case directed federal agencies to refuse to recognize the citizenship of U.S.-born children who do not have at least one parent who is an American citizen or lawful permanent resident, also known as a “green card” holder.
The Migrant Policy Institute in 2018 estimated that approximately 4.4 million U.S.-born children had at least one parent who is an undocumented immigrant.
The plaintiffs argued that Trump’s directive violated the 14th Amendment. That amendment’s citizenship clause states 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 14th Amendment overrode an infamous 1857 Supreme Court decision called Dred Scott v. Sandford that had denied citizenship to Black people and helped fuel the Civil War. The amendment was ratified in 1868 in the aftermath of the Civil War during the post-slavery era in the United States.
Britain and Australia in the 1980s modified their laws to prevent so-called birth tourism, requiring a parent to be a citizen or permanent resident in order for a newborn to qualify for citizenship.
Canada’s Citizenship Act and court rulings through the years — including one involving the child of Russian spies — have been guided by the principle that citizenship is granted based on birthplace rather than the citizenship of one’s parents.
Citizenship rules could vary by state, official argues
Liberal Justice Sonia Sotomayor said she believes Trump’s order violates multiple Supreme Court precedents concerning citizenship. Sotomayor said that if Trump’s order goes into effect, thousands of children would be born in the United States without citizenship, rendering some of them stateless.
More than 150,000 newborn children would be denied citizenship annually if Trump’s order is allowed to stand, according to the plaintiffs.
The administration contends that the citizenship clause does not extend to immigrants in the country illegally or immigrants whose presence is lawful but temporary, such as university students or those on work visas.
Without a universal injunction blocking Trump’s order, it could be years before the Supreme Court finally decides the legality of the directive on a nationwide basis, liberal Justice Elena Kagan said.
“There are all kinds of abuses of nationwide injunctions. But I think that the question that this case presents is that if one thinks that it’s quite clear that the [executive order] is illegal, how does one get to that result in what time frame, on your set of rules without the possibility of a nationwide injunction?” Kagan asked Sauer.
Sauer noted that after the dispute percolates in lower courts, the Supreme Court can ultimately pronounce on the legal merits of the policy, prompting conservative Justice Amy Coney Barrett to express skepticism.
“Are you really going to answer Justice Kagan by saying there’s no way to do this expeditiously?” Barrett said.
Sotomayor compared Trump’s directive to a hypothetical action by a president taking away guns from every American who owns one, despite the Second Amendment’s right to keep and bear arms.
Sauer said such injunctions exceed judicial power granted under the Constitution’s Article III and disrupt the Constitution’s “careful balancing of the separation of powers” among the judicial, executive and legislative branches of the U.S. government.
One of the first executive orders passed by U.S. President Donald Trump could have major implications for Canadians who live and work in the U.S. A federal judge has temporarily halted the order, but this is only the beginning of the legal fight.
The administration is seeking to narrow the injunctions to apply only to the individual plaintiffs and the 22 states, if the justices find the states have the required legal standing to sue. That could allow the policy to take effect in the 28 states that did not sue, aside from any plaintiffs living in those states.
New Jersey Attorney General Jeremy Feigenbaum, the lawyer arguing for the states, asked the justices to deny the administration’s request. Feigenbaum said the injunction issued in the lawsuit brought by the states was properly tailored to address “significant pocketbook and sovereign harms” they would experience from Trump’s action.
Feigenbaum said the administration’s approach in the litigation “would require citizenship to vary based on the state in which you’re born.”
“Since the 14th Amendment, our country has never allowed American citizenship to vary based on the state in which someone resides,” Feigenbaum said.
Feigenbaum also noted that the legal issue surrounding Trump’s executive order was resolved by the Supreme Court 127 years ago.
An 1898 Supreme Court ruling in a case called United States v. Wong Kim Ark long has been interpreted as guaranteeing that children born in the United States to non-citizen parents are entitled to American citizenship.
