Supreme Court will review Trump’s attempt to ban birthright citizenship
President Donald Trump’s birthright citizenship ban would deny automatic citizenship for newborns if neither parent is a U.S. citizen or legal permanent resident.
The Supreme Court on Thursday said it will review President Donald Trump’s attempt to ban automatic U.S. citizenship for children born to undocumented immigrants and foreign visitors, scheduling a special court session for next month.
The administration had asked the justices to lift or narrow nationwide orders blocking Trump’s birthright citizenship executive action, which Democratic-led states and immigrant advocacy organizations say is at odds with the nation’s history, past court rulings and the Constitution.
In a brief order, the justices put off a decision about the lower court rulings and instead scheduled oral argument for May 15.
Trump’s order would deny citizenship for new babies if neither parent is a U.S. citizen or legal permanent resident, a population that some studies have estimated at more than 150,000 newborns per year.
Judges in lawsuits joined by 22 states and D.C. have blocked the citizenship ban nationwide while litigation continues.
The administration had asked the justices to limit those lower-court orders to the individuals or states behind the lawsuits while the 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.
Solicitor General D. John Sauer used the administration’s filing to sharply criticize nationwide injunctions, which have halted many of Trump’s efforts to dismantle federal agencies, curb spending and shrink the size of the federal workforce. The administration has asked the Supreme Court to pause or overturn several such rulings.
“The need for this Court’s intervention has become urgent as universal injunctions have reached tsunami levels,” Sauer said, pointing to a total of 28 nationwide orders issued by judges in February and March.
Presidents from both parties — and several Supreme Court justices — have raised concerns about the power of a single judge to block an administration’s initiative nationwide.
At issue in the birthright citizenship case is the 14th Amendment, adopted after the Civil War in 1868 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 decision in Dred Scott v. Sandford, which had denied citizenship to Black Americans.
“For over 100 years, this Court, Congress, and the Executive Branch have all agreed that the Constitution guarantees citizenship to children born in this country, including those born to undocumented or non-permanent immigrants,” the coalition of Democratic attorneys general, led by New Jersey Attorney General Matthew J. Platkin, said in a court filing.
“Stripping hundreds of thousands of American-born children of their citizenship would inflict tremendous and irreparable harms on the States and the public.”
Trump and his allies say they have the authority to ban birthright citizenship because unauthorized immigrants are in the country without permanent legal status and, therefore, are not “subject to the jurisdiction” of the U.S. government. Since the 1990s, some restrictionist groups and Republican lawmakers have pressed to ban birthright citizenship, which they consider an incentive for people to enter or remain in the country illegally.
“The Citizenship Order is lawful and restores the original public meaning of the Fourteenth Amendment,” Sauer said in a filing. “A policy of near-universal birthright citizenship rewards lawbreaking and creates powerful incentives for illegal migration.”
Most legal scholars have rejected that analysis, however, because noncitizens can be arrested and charged with crimes, put in jail or deported. There is also wide agreement that Trump’s argument would require a reinterpretation of the 14th Amendment — and that it conflicts with settled Supreme Court precedent that protects citizenship for most 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,” were ineligible to ever become citizens and eventually returned to China.
In opposing the Trump administration’s request to the Supreme Court, the challengers told the justices there is no evidence that birthright citizenship is linked to illegal immigration at the southern border.
“The children of parents on student or work visas are covered by the Order but have nothing to do with the southern border,” the Asylum Seeker Advocacy Project and CASA, Inc. said in a court filing.
“Many undocumented people, likewise, did not enter the United States through the southern border and have been living, working, and paying taxes in the country for years.”
The challengers warned of chaos, confusion and disparate state-by-state policies if the Supreme Court allowed the Trump administration to begin banning birthright citizenship in more than half the states. An infant born to noncitizen parents in New Jersey, for instance, would be a U.S. citizen, but the same child born in Tennessee would be a deportable noncitizen.
The court should not create a “situation in which a person’s fundamental right to citizenship depends on the state in which they are born,” the filing said.
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