WASHINGTON, D.C. — The Supreme Court seemed intent Thursday on keeping a block on President Donald Trump’s restrictions on birthright citizenship while looking for a way to scale back nationwide court orders.
It was unclear what such a decision might look like, but a majority of the court expressed concerns about would happen if the Trump administration were allowed, even temporarily, to deny citizenship to children born to people who are in the United States illegally.
Washington Attorney General Nick Brown is leading the federal lawsuit challenging that order. Several lower courts, including one in Seattle, issued injunctions to stop the administration.
The justices heard arguments in the Trump administration’s emergency appeals over lower court orders that have kept the citizenship restrictions on hold across the country. Nationwide, or universal, injunctions have emerged as an important check on Trump’s efforts to remake the government and a mounting frustration to the Republican president and his allies.
Judges have issued 40 nationwide injunctions since Trump began his second term in January, Solicitor General D. John Sauer told the court at the start of more than two hours of arguments.
Birthright citizenship is among several issues, many related to immigration, that the administration has asked the court to address on an emergency basis.
The justices are also considering the Trump administration’s pleas to end humanitarian parole for more than 500,000 people from Cuba, Haiti, Nicaragua and Venezuela and to strip other temporary legal protections from another 350,000 Venezuelans. The administration remains locked in legal battles over its efforts to swiftly deport people accused of being gang members to a prison in El Salvador under an 18th century wartime law called the Alien Enemies Act.
Trump signed an executive order on the first day of his second term that would deny citizenship to children who are born to people who are in the country illegally or temporarily.
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The order conflicts with a Supreme Court decision from 1898 that held that the Citizenship Clause of the 14th Amendment made citizens of all children born on U.S. with narrow exceptions that are not at issue in this case.
States, immigrants and rights group sued almost immediately, and lower courts quickly barred enforcement of the order while the lawsuits proceed.
The current fight is over the rules that apply while the lawsuits go forward.
The court’s liberal justices seemed firmly in support of the lower court rulings that found the changes to citizenship that Trump wants to make would upset the settled understanding of birthright citizenship that has existed for more than 125 years.
Birthright citizenship is an odd case to use to scale back nationwide injunctions, Justice Elena Kagan said. “Every court has ruled against you,” she told Sauer.
But if the government wins on today’s arguments, it could still enforce the order against people who haven’t sued, Kagan said. “All of those individuals are going to win. And the ones who can’t afford to go to court, they’re the ones who are going to lose,” she said
Several conservative justices who might be open to limiting nationwide injunctions also wanted to know the practical effects of such a decision as well as how quickly the court could reach a final decision on the Trump executive order.
Justice Brett Kavanaugh pressed Sauer with a series of questions about how the federal government might enforce Trump’s order.
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“What do hospitals do with a newborn? What do states do with a newborn?” he said.
Sauer said they wouldn’t necessarily do anything different, but the government might figure out ways to reject documentation with “the wrong designation of citizenship.”
Kavanaugh continued to press for clearer answers, pointing out the executive order gave the government only about 30 days to develop a policy. “You think they can get it together in time?” he said.
The Trump administration, like the Biden administration before it, has complained that judges are overreaching by issuing orders that apply to everyone instead of just the parties before the court.
Picking up on that theme, Justice Samuel Alito said he meant no disrespect the nation’s district judges when he opined that they sometimes suffer from an “occupational disease … ‘I am right, and I can do whatever I want.’”
But Justice Sonia Sotomayor was among several justices who raised the confusing patchwork of rules that would result if the court orders were narrowed and new restrictions on citizenship could temporarily take effect in more than half the country.
Some children might be “stateless,” Sotomayor said, because they’d be denied citizenship in the U.S. as well as the countries their parents fled to avoid persecution.
New Jersey Solicitor General Jeremy Feigenbaum, representing 22 states that sued, said citizenship could “turn on and off” for children crossing the Delaware River between Camden, New Jersey, where affected children would be citizens, and Philadelphia, where they wouldn’t be. Pennsylvania is not part of the lawsuit.
One possible solution for the court might be to find a way to replace nationwide injunctions with certification of a class action, a lawsuit in which individuals serve as representatives of a much larger group of similarly situated people.
Such a case could be filed and acted upon quickly and might even apply nationwide.
But under questioning from Justice Amy Coney Barrett and others, Sauer said the Trump administration could well oppose such a lawsuit or potentially try to slow down class actions.
Supreme Court arguments over emergency appeals are rare. The justices almost always deal with the underlying substance of a dispute.
But the administration didn’t ask the court to take on the larger issue now and, if the court sides with the administration over nationwide injunctions, it’s unclear how long inconsistent rules on citizenship would apply to children born in the United States.
A decision is expected by the end of June.
What is birthright citizenship?
The first sentence of the 14th Amendment to the Constitution reads: “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 Citizenship Clause, ratified in 1868 after the Civil War, was included to ensure that formerly enslaved people would be citizens. It effectively overturned the notorious Dred Scott decision, in which the Supreme Court held that Black people, no matter their status, were not citizens.
Since at least 1898 and the Supreme Court case of Wong Kim Ark, the provision has been widely interpreted to make citizens of everyone born on U.S. soil except for the children of diplomats, who have allegiance to another government; enemies present in the U.S. during hostile occupation; and, until a federal law changed things in 1924, sovereign Native American tribes.
Trump signed the birthright citizenship executive order on the first day of his second term
Trump’s executive order would deny citizenship to children if neither parent is a citizen or lawful permanent resident. Those categories include people who are in the country illegally or temporarily because, the administration contends, they are not “subject to the jurisdiction” of the United States.
Almost immediately, states, immigrants and rights groups sued to block the executive order, accusing the Republican administration of trying to unsettle the understanding of birthright citizenship. Every court to consider the issue has sided with the challengers.
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But the president argues that “birthright citizenship is about slavery. That’s not about tourists coming in and touching a piece of sand and all of a sudden they’re a citizen, you know, they’re a citizen,” Trump has said.
The court will not be making a final ruling on birthright citizenship
The administration is asking for the court orders to be reined in, not overturned entirely, and spends little time defending the executive order. The Justice Department argues that there has been an “explosion” in the number of nationwide injunctions issued since Trump retook the White House. The far-reaching court orders violate the law as well as long-standing views on a judge’s authority, Solicitor General D. John Sauer wrote on behalf of the administration.
Courts typically deal only with the parties before them. Even class actions reach only the people who are part of a class certified by a judge, though those can affect millions of people, Sauer wrote.
Nationwide injunctions, by contrast, have no limits and can even include parties who oppose what the court orders are designed to protect, he wrote. As an example, Sauer pointed to Republican-led states that favor the administration’s position but are subject to the nationwide injunctions.
But the justices may well ask about Trump’s executive order and perhaps even tip their hand.
Lawyers for the states and immigrants argue that this is an odd issue for the court to use to limit judges’ authority because courts have uniformly found that Trump’s order likely violates the Constitution. Limiting the number of people who are protected by the rulings would create a confusing patchwork of rules in which new restrictions on citizenship could temporarily take effect in 27 states. That means a child born in a state that is challenging Trump’s order would be a citizen, but a child born at the same time elsewhere would not, the lawyers said.
Arguments over emergency appeals are rare
The Supreme Court almost always takes up the underlying substance of a dispute, not an emergency appeal of court orders issued early in a legal case.
The main argument against the court deciding too much on the emergency, or shadow, docket is that the justices are intervening too early in the process, sometimes before lower courts have had much to say or the legal arguments are fully developed.
Last year, the justices heard arguments in emergency appeals, then blocked the Environmental Protection Agency’s air pollution-fighting “good neighbor” plan, which aimed to restrict smokestack emissions from power plants and other industrial sources that burden downwind areas with smog-causing pollution.
Two years earlier, the court delivered a split decision that allowed rules requiring COVID-19 vaccines for health care workers but not for employees of large companies.
