Citizenship at the Supreme Court Tomorrow
Justices expected to avoid constitutionality of Trump’s order, but surprise possible
Some fights are about the obvious thing. This week’s arguments over birthright citizenship aren’t one of those. On Thursday, President Trump’s attempt to rewrite birthright citizenship gets its first audience before the U.S. Supreme Court. Instead of focusing on the president’s executive order, the justices are likely to devote their attention to an important technical issue about the power of federal courts to block presidential action.
On his first day back in the White House, Trump issued an executive order that would alter citizenship law as it has existed for 125 years. The Supreme Court’s 1898 decision in United States v. Wong Kim Ark left no doubt that the Fourteenth Amendment to the U.S. Constitution, added after the Civil War, granted citizenship at the moment of birth to the child of Chinese migrants living in California. At the time, federal law prohibited people of Chinese descent from becoming naturalized U.S. citizens and most were barred from entering the United States. Since then, courts and the federal government have consistently treated almost everyone born in the United States as a U.S. citizen at birth. Three exceptions exist for children born to ambassadors, Native American tribes, and invading forces. Congress has enacted laws granting permanent residence to diplomats’ children and citizenship to indigenous children.
Trump’s executive order would deny citizenship to children whose mothers were in the United States lawfully under a time-limited visa or who were living in the United States without the federal government’s permission. Implementing the president’s directive would increase the number of unauthorized migrants living in the United States by 2.7 million by 2045, according to the Migration Policy Institute. So far, Trump’s order has not gone into effect because federal judges quickly blocked it. Three of those cases are now before the Supreme Court.
Despite citizenship’s importance, none of the parties have asked the Court to weigh in directly on the constitutionality of the president’s executive order. Instead, the Trump administration asked the justices to stop lower court judges from issuing sweeping blocks of presidential directives that they find illegal. The Justice Department wants the Supreme Court to declare nationwide injunctions – court orders that block a policy from going into effect anywhere in the country even against people who haven’t sued the federal government – unconstitutional. A coalition of 18 states, plus Washington, D.C., San Francisco, and multiple private individuals and community groups argue that federal judges have long had broad power to restrain illegal conduct.
Making sense of the parties’ focus on legal process is easier to understand given the unusual way in which three cases that will be argued on Thursday reached the Supreme Court. Most of the time, the justices agree to hear arguments only after the party that lost in a federal court of appeals or the highest state court submits a petition for certiorari asking for Supreme Court review. The appellate process typically takes many months, and sometimes years, to reach the Supreme Court. During that time, the parties develop a detailed record that the justices can then review.
None of that happened in the bubbling legal fight over birthright citizenship. Instead, the Trump administration’s top lawyer asked the justices to weigh in on March 13, less than two months after the president signed the contested executive order. By that point, three federal appellate courts – the First, Fourth, and Ninth Circuits – had upheld district court orders blocking Trump’s team from implementing the executive order anywhere in the United States against anyone.
In its request for Supreme Court intervention, the Trump administration did not ask the justices to uphold the president’s vision of the Fourteenth Amendment. Instead, Sarah Harris, who at the time was the Acting Solicitor General of the United States, told the Court that the administration was making “a ‘modest’ request…limiting those injunctions to parties actually within the courts’ power.” The administration also argued that states can’t make citizenship claims on behalf of their residents.
“There is nothing ‘modest’ about the government’s request for emergency relief in this case.”
“There is nothing ‘modest’ about the government’s request for emergency relief in this case,” lawyers for CASA, a community organization based in Maryland, responded a few days later. Narrowing the lower court injunctions would allow the Trump administration to implement an interpretation of the Fourteenth Amendment that is unconstitutional and at odds with more than a century of legal tradition, they argued.
Though both parties discuss the constitutionality of Trump’s order, neither dwells on it. Likewise, only four of seventeen amicus briefs filed since the justices added these cases to their calendar focus on citizenship. Tellingly, even the National Immigrant Justice Center, a powerhouse immigration legal advocate, devoted its brief to injunctions rather than citizenship.
The expectation is certainly that the Court will devote itself to the legality of a nationwide injunction but making assumptions about what the justices will do isn’t a sure bet. The justices can ask whatever questions they like on Thursday and then focus any opinion that comes on whatever issues they choose. Arguments are scheduled to begin shortly after 10:00 am Eastern, immediately following release of opinions in unrelated cases. John Sauer, currently the U.S. Solicitor General, will argue on behalf of the federal government, while New Jersey’s solicitor general, Jeremy Feigenbaum, will represent state and local governments and Kelsi Corkran from Georgetown University will represent the private individuals and organizations. Arguments are scheduled for at least one hour, but the justices can extend that in the moment.
More than most arguments, Thursday’s hearing is likely to give us insight into how the justices plan to tackle this issue – and whether this is the final round of the birthright citizenship debate or merely the first time it gets to the Supreme Court.