Supreme Court grapples with nationwide orders blocking birthright citizenship ban
The Supreme Court appeared divided Thursday about whether to scale back nationwide orders that have blocked President Donald Trump’s ban on birthright citizenship, in a case with implications for judicial power and what it means to be an American.
After more than two hours of oral argument, it was unclear how the high court would resolve the issue, with liberal justices asserting that Trump’s order to deny automatic citizenship for U.S.-born babies is at odds with more than a hundred years of Supreme Court precedent.
“As I see it, this order violates four precedents,” said Justice Sonia Sotomayor, who suggested that lifting or limiting the nationwide orders would invite hundreds, potentially thousands, of individual lawsuits.
Justice Elena Kagan pointed out that the Trump administration has consistently lost in the lower courts, where three judges have prevented his policy from taking effect.
But the case before the justices is more of a referendum on the use of nationwide injunctions that have frustrated many of Trump’s efforts to dramatically shrink the size of the government workforce, halt federal spending and end diversity programs. Presidents from both parties, members of Congress and Supreme Court justices from across the ideological spectrum have raised concerns about the power of a single judge to temporarily block a president’s agenda nationwide.
Conservative justices, including Brett M. Kavanaugh and Neil M. Gorsuch, seemed open during oral argument to the Trump administration’s suggestion that the immigrant advocacy groups and pregnant women challenging the birthright citizenship ban could instead file a class-action lawsuit as a remedy.
“Why doesn’t that solve the problem?” asked Kavanaugh.
Judges in lawsuits joined by 22 states and D.C. have issued nationwide orders blocking Trump’s birthright citizenship executive action, which civil rights groups, Democratic-led states and most legal scholars say is at odds with the nation’s history, the Constitution and past court rulings that enshrined birthright citizenship.
The administration asked the justices to limit the nationwide orders to the individuals or states involved in the litigation while those cases make their way through the court system, or to at least allow the relevant federal agencies to begin developing plans and issuing public guidance for banning birthright citizenship if Trump’s effort eventually passes legal muster.
If the Trump administration prevails in persuading the Supreme Court to limit the injunctions to states participating in the litigation, it could allow the administration to begin denying automatic citizenship to the children born in 28 states and other U.S. territories. Advocates probably would file new challenges in those states to try to restrict the policy while litigation continues over the constitutionality of banning birthright citizenship.
While the argument centered on procedural issues, the underlying legal question concerns the 14th Amendment, adopted after the Civil War to establish citizenship for freed Black Americans, as well as “all people born or naturalized in the United States, and subject to the jurisdiction thereof.” The citizenship clause reversed the Supreme Court’s infamous ruling in Dred Scott v. Sandford, which had denied citizenship to Black Americans.
Trump and his allies say they have the authority to ban birthright citizenship because unauthorized immigrants are in the country illegally and, therefore, are not “subject to the jurisdiction” of the United States government.
Olga Urbina holds her 9-month-old son, Ares Webster, and a sign supporting birthright citizenship outside the Supreme Court on Thursday. (Photo by Matt McClain/The Washington Post)Most legal scholars, however, have rejected that analysis because noncitizens can be arrested and charged with crimes, put in jail or deported. There is also wide agreement that the argument conflicts with more than a century of Supreme Court precedent that protects citizenship for almost everyone born on U.S. soil, except for the children of foreign diplomats.
The Supreme Court upheld the guarantee of birthright citizenship in 1898 when it ruled that a child born within the United States, Wong Kim Ark, was a citizen even though his parents were “subjects of the Emperor of China.” The parents were ineligible to ever become citizens and eventually returned to China.
The Trump administration has focused on procedural concerns, telling the justices that individual states lack legal grounds to assert citizenship rights on behalf of individuals residing in those states and that the lower-court orders have made it more difficult for Trump to set immigration policy for the nation through universal injunctions.
Judges issued more orders blocking Trump’s executive actions in the month of February, for instance, than during the first three years of the Biden administration—a data point related to the high volume of Trump’s directives, many of which seek to dramatically upend the way government works.
In reviewing the birthright citizenship ban, judges in Maryland, Massachusetts and Washington State have all ruled against Trump. Judge John C. Coughenour of the U.S. District Court in Seattle said birthright citizenship “is a fundamental right, a constitutional right,” and criticized Trump for trampling on the Constitution to pursue “political or personal gain.”
Coughenour, who was appointed by President Ronald Reagan, said the Trump administration must pursue a constitutional amendment if it wants to change the 14th Amendment—a step that would require ratification from a large majority of Congress and the states.
“The fact that the government cloaked what is in effect a constitutional amendment under the guise of an executive order is equally unconstitutional,” Coughenour said during a hearing in which he issued the nationwide injunction. “The Constitution is not something the government can play policy games with.”
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