Supreme Court justices on Thursday expressed concerns about allowing President Donald Trump’s radical reinterpretation of the Constitution’s guarantee of birthright citizenship to go into effect while litigation continues.
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In an unusual move, the court heard oral arguments on a series of Trump administration emergency requests seeking to limit the scope of nationwide injunctions that blocked the plan almost as soon as it was announced in January.
Amid a more than two-hour oral argument, the justices vigorously debated various ways to limit the number of nationwide injunctions, but on the birthright citizenship issue specifically a majority appeared to think such an approach may have been justified, especially in cases brought by states.
Even if the Trump administration loses on its efforts to narrow injunctions in the birthright citizenship cases, any decision that sets new limits on when nationwide injunctions are acceptable could help the administration implement other policies via executive actions, many of which have also been blocked nationwide by lower court judges.
There is also a chance the court could change course and quickly take up the merits of Trump’s proposal, with several justices indicating the administration would lose. That would allow the court to quickly reach a definitive decision on the subject.
The argument as it related to birthright citizenship specifically centered on whether a nationwide injunction was justified as to 22 states that sued, led by New Jersey and Washington state. The question of what the justices could do with a third case brought by individual plaintiffs and immigrant rights groups was less clear. In all three cases, judges issued nationwide injunctions.
In court, New Jersey Solicitor General Jeremy Feigenbaum told the justices that the states need a nationwide injunction because the imposition on each state caused by the plan could not be remedied by a state-specific injunction. He pointed out, for example, that people constantly move between states and there would be “chaos on the ground where people’s citizenship turns on and off when you cross state lines,” depending on how states deal with the issue.
He noted that each year, New Jersey alone has 6,000 babies that were born elsewhere and the state would have to determine whether they were citizens or not to determine whether they are eligible for certain benefits.
Two justices in the court’s conservative majority, Justice Neil Gorsuch and Amy Coney Barrett, both seemed sympathetic to those arguments.
“Why wouldn’t they be entitled to an injunction of the scope of the one that has currently been entered?” Barrett said to Solicitor General D. John Sauer, who was arguing the case on behalf of the Trump administration.
Gorsuch pushed back when Sauer dismissed that argument on the grounds that it would justify nationwide injunctions in almost any case.
“What do you say though to the suggestion, General, that in this particular case, those patchwork problems for, frankly, the government as well as for plaintiffs, justify broader relief?” he asked.
The three liberal justices all seemed solidly opposed to allowing the birthright plan to go into effect, even if they agreed that there should be some limitations on nationwide injunctions.
“So as far as I see it, this order violates four Supreme Court precedents,” Justice Sonia Sotomayor said. “And you are claiming that not just the Supreme Court, that both the Supreme Court and no lower court, can stop an executive, universally, from violating that holding, those holdings, by this court.”
The justices have yet not agreed to take up the bigger legal question of whether Trump’s plan comports with the Constitution’s 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The longstanding interpretation of the provision as understood by generations of Americans, including legal scholars on the left and right, is that anyone born on U.S. soil is an American citizen with a few minor exceptions, including people who are the children of diplomats.
As part of Trump’s hard-line immigration policy, he wants to limit birthright citizenship to people who have at least one parent who is a U.S. citizen or is a permanent U.S. resident.
Trump first seized upon the fringe legal theory during his first term as a way to rally his base. It has been promoted by some right-wing anti-immigration groups as well as John Eastman, one of Trump’s former legal advisers during his attempts to overturn the 2020 election.
“Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!” Trump said in a Truth Social post Thursday morning.
Activists supporting the current interpretation of birthright citizenship gathered outside the court ahead of the arguments, holding signs and chanting slogans. “Trump must go now,” one banner said.
In line with the historical understanding of the 14th Amendment, every court that has ruled on the plan so far has blocked it. Trump filed three separate emergency applications at the Supreme Court seeking to narrow the injunctions issued by judges in Maryland, Massachusetts and Washington state.
The Trump administration has complained vociferously about judges who have issued “universal injunctions” blocking various policies rolled out during the president’s first few months in office. The Justice Department says there have been 40 such rulings on a host of issues, including the administration’s ban on transgender people serving in the military, which the Supreme Court recently allowed to go into effect.
Trump has relied in large part on aggressive executive orders to enact his agenda, rather than seeking legislation from Congress or regulatory actions by federal agencies.
The administration’s argument is that federal judges simply do not have the authority to issue broad rulings that affect people other than the litigants appearing before them. As a result, when judges rule that a government policy is unlawful, the decision should apply only to the individual plaintiffs or entities that sued, the administration says.
In response, the challengers say that on an issue like birthright citizenship, a nationwide injunction is appropriate in part because it is vital to have uniformity on such a fundamental right.
Even if some nationwide injunctions cannot be justified, the Supreme Court should not use the birthright citizenship case to curb the ability of judges to issue them at all, lawyers for the plaintiffs argue.
The administration has asked the court to limit the injunctions to individual people or organizations that sued, and potentially the 22 states that filed separate lawsuits on birthright citizenship.
Depending on what action the court takes, the proposal could go into effect in more than half of all U.S. states but not others, or against anyone who has not themselves sued or is not a member of the immigrant advocacy organizations CASA and the Asylum Seeker Advocacy Project.
If the court grants the administration’s request in some form, people affected by the executive order may have to file their own lawsuits or join a class action lawsuit.
All of this is taking place amid widespread agreement among legal experts that the Supreme Court would ultimately rule against Trump when the case eventually reaches the justices on the merits.
In recent years, five of the six members of the court’s conservative majority have raised concerns about individual judges having the power to block a president’s actions nationwide, an authority that is traditionally reserved for the Supreme Court.
Such rulings have stymied not just the Trump administration but recent Democratic administrations as well.
The Supreme Court is expected to issue its ruling by the time the court’s term ends in late June.
Justice Amy Coney Barrett also questioned the Trump administration about its adherence to lower court orders, as Democrats and other Trump critics have broadly decried the Trump administration for appearing to defy court rulings, primarily on immigration topics. (The Trump administration has denied intentionally violating any rulings.) Barrett asked Solicitor General Dean John Sauer, who argued on the government’s behalf, about whether the Trump administration believes it doesn’t have to follow judgements from federal appeals courts that it disagrees with. “Generally, we follow them,” Sauer said, suggesting there could be rare situations in which the government would not respect a lower court’s judgement.
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