The United States Supreme Court announced today that it will hear arguments over President Trump’s attempt to rewrite birthright citizenship. This will be the first time the Court weighs in on the president’s most dramatic attempt to alter the foundational legal tie between private individuals and the government. Despite the high-profile context, the justices might not use this as an opportunity to once-and-for-all decide whether Trump’s birthright citizenship executive order is lawful.
Instead, the justices might focus on a narrow procedural issue that has irked rightwing politicians for several years. In three cases that the Court consolidated, the Trump administration requested that the justices narrow the power of federal district court judges to issue broad blocks on the federal government’s policies. The Justice Department did not defend the president’s executive order outright.
Multiple courts have issued temporary holds, called universal injunctions, to stop many of Trump’s policy shifts. At least three courts have enjoined the birthright citizenship executive order. According to the Justice Department, judges issued more injunctions or temporary restraining orders against Trump administration policies in February alone than in the first three years of President Biden’s tenure.
The Trump administration’s position is that judges can temporarily block federal officials from enforcing the birthright citizenship order against the specific people and organizations who have sued it. But judges can’t block implementation against anyone, especially people who haven’t hauled the government into court, Justice Department lawyers wrote to the Court.
Given the nature of citizenship, this is an odd circumstance in which to weigh in on universal injunctions. The government’s position would mean that the birthright citizenship order would not apply to some people but would apply to others. For example, New Jersey is a party to one of these cases, as are 17 other states plus Washington, D.C. and San Francisco. Adopting the Trump administration’s view of injunctions would mean that people born in New Jersey, or any of the other states or cities that have joined it, would be U.S. citizens under the same terms as people all over the United States have been for 125 years. Since 1898, most people have acquired U.S. citizenship upon birth within the territorial United States, which of course includes New Jersey.
But Florida is not a party to any of these lawsuits so a court can’t block implementation of Trump’s executive order, the Justice Department argues. That would mean people born in Florida would be subjected to the version of birthright citizenship that Trump spelled out in his executive order: no citizenship to children born to mothers who were living here lawfully on a temporary visa or living here without the federal government’s permission.
If the justices stick to clarifying when it is appropriate to issue a universal injunction, we may learn very little about what they think about birthright citizenship.
But this is perhaps not the time for excessive optimism. One requirement of an injunction is that the party suing show a likelihood of winning on the merits of their argument. In effect, that requires courts to quickly assess the probability that the plaintiffs are correct that the federal government can’t do what it would like. In the context of birthright citizenship, that means that courts have had to gauge the likelihood that the states and organizations challenging Trump’s citizenship order are correct that the Fourteenth Amendment grants citizenship to everyone born in the United States, subject to very narrow exceptions, just as it has been interpreted since the late 1800s.
The justices scheduled oral arguments for May 15, several weeks after the Court usually stops hearing arguments before its summer recess. They typically release all their opinions for the term by June 30. This schedule gives the justices a mere six weeks to weigh in on an issue of extreme public importance and legal significance.
I can’t know whether the justices are inclined to focusing on the narrow procedural issue of injunctions, but I truly hope so.
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