Supreme Court to hear oral arguments over birthright citizenship

WASHINGTON — The Supreme Court justices will give a first glimpse Thursday of how they intend to handle the Trump administration’s attempt to end birthright citizenship, in oral arguments on cases that could focus more on how the tangled legal challenges play out in federal courts.

The executive order from Donald Trump, signed on the first day of his second term as part of a tough-on-immigration approach, sought to deny citizenship to children born in the United States if their parents were not current citizens or permanent residents.

Challengers have said the policy would deny citizenship to hundreds of thousands of children each year, making them subject to deportation or stateless.

Courts have blocked the government from enforcing the policy through nationwide injunctions, finding it contradicts more than a century of established law about who gets citizenship.

Rather than ask the justices to weigh in on Trump’s effort directly at this early stage of the lawsuits, the government asked the justices to rein in the power of lower courts to halt presidential actions through nationwide injunctions.

That has left experts with few clues over what the justices will do — from answering major questions on what defines citizenship in America, to the power of the courts to check the executive branch — both or neither.

Deepak Gupta, founding attorney at Gupta Wessler, told reporters last week that the case didn’t come before the justices in the normal fashion, where there would be formal “questions presented” that at least nominally limited what the court would rule on.

“Nobody really knows what this is about,” Gupta said. “You know they could delve into the merits, and I think that may be a way of avoiding the injunction issue. It’s mystifying, frankly.”

The Trump administration in court filings asked the Supreme Court to limit the preliminary injunctions so they apply only to individuals and organizations who filed challenges, and if it applies to states, only the individuals who are born or reside in those states. They also ask the justices to allow government agencies to develop and issue public guidance regarding implementation of the order.

The 14th Amendment provides that “[a]ll 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 order takes aim at the meaning of “subject to the jurisdiction” and directs federal government agencies not to issue citizenship documents to any children born where at least one parent is not a lawful permanent resident or citizen, originally starting in February.

The Justice Department stayed away from that in its Supreme Court application and instead argued this issue is among those where the lower courts “thwart the rule of law” by issuing orders that block administrative actions nationwide.

“Since the start of this Administration, district courts have repeatedly issued orders that superintend the internal operations of the Executive Branch by prohibiting the formulation of new policies,” the filing said.

States and nonprofits challenging the order argued in a brief that Trump’s interpretation goes against more than a century of court decisions and would strip citizenship from hundreds of thousands of children a year. Restricting the nationwide injunctions, or temporarily staying them while the court battles play out, would cause widespread chaos, they contend.

Children’s citizenship could depend on the state of their birth, the states argued, and leave thousands of infants subject to deportation or statelessness, where they have citizenship nowhere in the world.

Intertwined issues

Several legal experts, and many of the briefs in the case, pointed out that it will be difficult for the justices to rule on the nationwide injunctions without making some sort of determination about the legality of Trump’s underlying order — or leaving thousands of children in legal limbo.

“Applicants now bring a remarkable request to this Court: to allow them to strip thousands of American-born children of their citizenship, in every State or at least in 28 States, while these challenges proceed — even if doing so would contravene settled nationwide precedent,” a brief from New Jersey and other states said.

A brief filed in the case and signed by more than 170 House Democrats argued that birthright citizenship “has been accepted in this country without challenge since the nation’s founding and repeatedly enacted by Congress into statutory law” and Trump’s executive order goes against multiple immigration statutes.

“The district court injunctions do nothing more than preserve a status quo that has been in place without question for over two centuries. The Government’s argument that it has suffered irreparable injury, solely by virtue of district court orders that maintained that status quo, is risible,” the brief said.

Briane Gorod, chief counsel for the Constitutional Accountability Center, said the nature of the case makes it difficult to separate the injunction power from the merits of denying citizenship for children born in the United States, even temporarily.

“It is really difficult to imagine how the government is going to argue that the Supreme Court should step in now and block lower court decisions that are simply maintaining the status quo that has existed essentially since the 14th Amendment was ratified,” Gorod said.

The Trump administration, and his allies in Congress, have continued to defend the legality of the order, arguing that they will prevail eventually. In a brief at the Supreme Court, 18 members of the House Judiciary Committee argued that Trump had the proper interpretation of the 14th Amendment’s jurisdiction clause.

“Merely being born in the United States and being subject to its laws was insufficient. If the parents or child had divided allegiances, the child would not be a U.S. citizen under the Jurisdiction Clause,” the brief said.

Nationwide injunctions

Nationwide injunctions have served as a flashpoint for Trump’s out-of-court criticism of the judiciary, as he and others have criticized judges for their rulings restricting him.

Republicans in both chambers of Congress have introduced legislation to put Trump’s interpretation of the citizenship clause into federal law, which have not yet advanced in either chamber.

At a Federalist Society event last week, former Trump administration official Jesse Panuccio cast doubt on the idea that the Supreme Court would use the case to rein in nationwide injunctions, because it’s “in the nature of separated powers for branches not to check themselves.”

“I think it is time for Congress to act,” Panuccio said.

The issue of nationwide injunctions has simmered across administrations of both parties, with members of Congress from both sides of the aisle offering similar legislation to scale them back as the White House changed hands.

Last month, the House passed legislation to rein in nationwide injunctions on a largely party-line vote. A spokesperson for Senate Judiciary Committee Chair Charles E. Grassley, R-Iowa, said he’d wait on how the Supreme Court decides the birthright citizenship case before making a decision on proceeding with the injunction bill.

However, the legislation hasn’t found much support from the Democratic side of the aisle in the Senate so far.

Sen. Sheldon Whitehouse, D-R.I., a member of the Senate Judiciary Committee, said he hoped the Supreme Court doesn’t use the case to make a broad ruling on nationwide injunctions.

“Nationwide injunctions are very much in the eye of the beholder. Under Biden, Republicans loved nationwide injunctions and pursued judge shopping to get them, and so you can take their arguments against it with a grain of salt. It’s also a complicated area where a hard, bright line is hard to find,” Whitehouse said.

The cases are Trump et al. v. CASA Inc. et al.; Trump et al. v. Washington, et al.; and Trump et al. v. New Jersey et al.