WASHINGTON (Reuters) – The U.S. Supreme Court wrestled on Thursday over Donald Trump’s attempt to broadly enforce his executive order to restrict 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 heard arguments in 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 Constitution’s 14th Amendment.
U.S. Solicitor General D. John Sauer, arguing for the administration, told the justices that Trump’s order was “protecting the meaning and value of American citizenship.”
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. Sauer focused on this issue, calling the increasing use by judges of universal injunctions a “pathology.”
Trump signed his order on January 20, his first day back in office. It 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.
After more than two hours of arguments, the conservative justices seemed willing to limit the ability of lower court judges to issue universal injunctions, but also reticent to issue a ruling without further delving into the underlying legal merits of Trump’s executive order. It remained uncertain whether the court would order further briefing, a move that would further delay resolution of the case. The court has a 6-3 conservative majority, including three justices appointed by Trump during his first term as president.
The plaintiffs argued that Trump’s directive violated the 14th Amendment, which long has been understood to confer citizenship on almost anyone born on U.S. soil. The 14th 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 U.S. post-slavery era.
“This order reflects the original meaning of the 14th Amendment, which guaranteed citizenship to the children of former slaves, not illegal aliens or temporary visitors,” Sauer told the justices of Trump’s directive.
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 because of policies in the home countries of the parents and leaving them ineligible for government services in the United States.
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 14th Amendment 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.
Trump’s order was challenged by Democratic attorneys general from 22 states as well as individual pregnant immigrants and immigrant rights advocates.
‘ALL KINDS OF ABUSES’
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.
Conservative Justice Neil Gorsuch also asked, “How do you suggest we reach this case on the merits expeditiously?”
Sotomayor compared Trump’s directive to a hypothetical action by a president taking away guns from every American who owns one despite Second Amendments right to keep and bear arms.
Sauer said that since Trump returned to the presidency, federal judges have issued 40 universal injunctions against his administration’s policies.
“This is a bipartisan problem that has now spanned the last five presidential administrations,” Sauer said.
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.
“They operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere,” Sauer said.
Conservative Justice Clarence Thomas agreed with Sauer that universal injunctions “have proliferated over the last three decades or so.”
VARIATIONS BY STATE
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.
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 because the post-Civil War nation wrote into our Constitution that citizens of the United States and of the states would be one and the same, without variation across state lines,” 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. The administration has argued that the court’s ruling in that case was narrower, applying to children whose parents had a “permanent domicile and residence in the United States.”
Kelsi Corkran, the lawyer for the individual plaintiffs, also asked the justices to deny the administration’s request. Corkran urged the court to prevent the catastrophic consequences to the United States and to the plaintiffs “if the government is allowed to execute an unconstitutional citizenship-stripping scheme simply because legal challenges take time.”
(Reporting by Andrew Chung, John Kruzel and Blake Brittain in Washington; Editing by Will Dunham)
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