Trump’s controversial immigration policy is a new interpretation of the 14th Amendment’s citizenship clause.
SCOTUS to hear birthright citizenship arguments. Here’s what we know.
The Supreme Court will hear birthright citizenship arguments in May. Here’s what we know about its impact.
WASHINGTON − In what could be its biggest blockbuster case of the year, the Supreme Court on May 15 will take up one of President Donald Trump’s most controversial executive orders: ending the guarantee of citizenship to virtually everyone born in the United States.
Judges appointed by both Democratic and Republican presidents have put that change on hold, ruling it’s likely unconstitutional.
The Trump administration argues judges shouldn’t be able to completely pause the president’s policy while it’s being challenged in court.
They’ve asked the Supreme Court to narrow legal rulings so Trump’s new citizenship policy can apply as widely as possible until there’s a final determination from judges about whether it is constitutional.
And the Justice Department says the Supreme Court can do that without deciding whether they will eventually uphold or strike down Trump’s policy.
How the high court responds will affect not only whether birthright citizenship will be scaled back at least temporarily, but also if it will be harder for judges to pause other Trump policies.
First Trump policy to hit the Supreme Court
The appeal is the first from the Trump administration that the Supreme Court agreed to consider through oral arguments.
And it’s only the fourth time since 1971 that the Supreme Court has held oral arguments on an emergency request, an indication of how rare it is.
Here’s what you need to know.
What did Trump’s executive order on birthright citizenship say?
On his first day back in office on January 20, Trump signed an executive order ending birthright citizenship for children born to certain people who are not citizens. He directed government agencies not to recognize as citizens anyone born in the United States unless at least one of their parents is a citizen or lawful permanent resident.
Why is Trump’s executive order controversial?
Trump’s order is a new interpretation of the 14th Amendment’s citizenship clause, which says: “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.”
In an 1898 ruling about the citizenship of a man born in the United States to Chinese parents, the Supreme Court said the 14th Amendment, “in clear words and in manifest intent, includes the children born, within the territory of the United States.”
And a 1940 law defines citizenship using the terms of the 14th Amendment.
But Trump argues that phrasing in the constitutional amendment rules out children born to parents who aren’t citizens, because they may feel loyal to a foreign country even if they have to follow U.S. laws while they’re here.
Who challenged Trump’s executive order?
Trump’s order was immediately challenged through multiple lawsuits. They were filed by expectant parents, immigrant rights groups and 22 state attorney generals. The pregnant mothers include immigrants who are not in the country legally, or who have pending asylum claims, temporary protected status, or student visas.
Three cases were consolidated by the Supreme Court for the oral arguments.
How have the lower courts ruled?
Federal district court judges in Washington state, Massachusetts and Maryland blocked the policy from going into effect anywhere in the country while it’s being litigated. The judges – who were appointed by Ronald Reagan, Barack Obama and Joe Biden – said the courts will likely determine that the policy is unconstitutional.
Three appeals courts – in San Francisco, Boston and Richmond, Va. − rejected the administration’s request to either lift the injunctions or substantially narrow them.
What has Trump asked the Supreme Court to do?
In an emergency appeal, the Trump administration asked the Supreme Court to let the policy go into effect for anyone other than the specific expectant parents named in the lawsuits or, at most, any member of the immigrant rights groups or residents of a state that challenged the policy.
The Justice Department also says states should be excluded from the lawsuits because they haven’t shown their own interests are at stake and states can’t sue on behalf of their residents.
Why does the Trump administration say the Supreme Court should intervene?
The administration argues one judge shouldn’t be able to entirely block a federal policy for anyone other than the parties suing. And they say that phenomenon has gotten out of control, pointing to numerous injunctions that have put the brakes on much of Trump’s efforts to stop illegal immigration, downsize and reshape the federal government, and end diversity initiatives.
“If Justice Roberts and the United States Supreme Court do not fix this toxic and unprecedented situation IMMEDIATELY, our Country is in very serious trouble!” Trump said in a Truth Social post.
What does the other side say?
Those challenging Trump’s executive order say if any case justifies a nationwide pause, it’s this one. Citizenship rules need to be uniform across the country and Trump doesn’t get to change with the stroke of a pen the longstanding interpretation of the Constitution, they argue.
Without broad remedies, they say, courts could not have addressed school segregation or racial gerrymandering. And it can be difficult or impossible for everyone affected by a policy to individually sue.
“Trump’s intent is clear,” the American Civil Liberties Union said in a statement. “Make it harder, slower, and more expensive for people to challenge his policies in court, and easier for his administration to implement its cruel, unconstitutional agenda.”
Why does Trump say his executive order is needed?
The Trump administration maintains that birthright citizenship was intended to help formerly enslaved people after the Emancipation Proclamation and doesn’t cover children of people who entered the country without proper authorization or who are here temporarily, such as university students.
The “incorrect position” that the government has relied on, the administration argues, has led to “birth tourism” − expectant mothers traveling to the United States to secure citizenship for their children.
Is there evidence of “birth tourism”?
Foreign women coming to the United States to give birth is not common, according to the nonpartisan Migration Policy Institute. About 9,000 of the nation’s 3.6 million annual births are to foreign mothers who don’t live in the country.
More targeted measures, such as visa enforcement and screening airline passengers, are a better way of preventing “birth tourism,” the institute says.
And a joint analysis from the institute and Penn State’s Population Research Institute found Trump’s executive order would significantly increase, not shrink, the size of the nation’s unauthorized population.
What happens if the Supreme Court sides with Trump and limits injunctions?
If the justices narrow the injunctions, there will be different rules for birthright citizenship for different people until the Supreme Court eventually decides whether Trump’s policy is legal. Immigrant rights advocates could try to minimize that effect by going back to court through a class action lawsuit.
If the court limits national injunctions generally, that could impact challenges to other Trump policies.
When is the Supreme Court likely to rule?
The Supreme Court is expected to issue a decision by the end of June or early July.