The Supreme Court hears historic arguments on Thursday, as the Trump administration seeks to challenge the constitutional provision that guarantees automatic citizenship to all babies born in the United States. And yet, the arguments are likely to focus primarily on a different question entirely, a legal question on nationwide injunctions that could make it much more difficult and time-consuming to bring challenges to all of Trump’s legal policies, not just this one.
The Fourteenth Amendment to the Constitution, enacted after the Civil War, was aimed at reversing the Supreme Court’s infamous Dred Scott decision, a ruling that declared Black people, enslaved or free, could not be citizens of the United States.
The Amendment says: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”
Challenges to birthright citizenship have long been considered a fringe legal theory. That’s because 127 years ago, the Supreme Court ruled to the contrary by a unanimous vote. Moreover, as if to put icing on the cake, Congress in 1940 passed a statute codifying birthright citizenship for any child born in the U.S.
President Trump, however, has long maintained that the Constitution does not guarantee birthright citizenship. So, on Day One of his second presidential term, he issued an executive order barring automatic citizenship for any baby born in the U.S. whose parents entered the country illegally, or who were here legally but on a temporary visa.
On Thursday, he posted on Truth social that “it all started right after the Civil War ended, it had nothing to do with current day Immigration Policy!” — and repeated incorrect claims that the U.S. is the only country with birthright citizenship.
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Immigrant rights groups and 22 states promptly challenged the Trump order in court. Since then, three federal judges, conservative and liberal, have ruled that the Trump executive order is, as one put it, “blatantly unconstitutional.” And three separate appeals courts have refused to unblock those orders while appeals are ongoing. Meanwhile, Trump’s legal claim has few supporters. At a program put on by the conservative Federalist society, writer Robert Verbruggen, a senior fellow at the conservative Manhattan Institute, referred to birthright citizenship as “a nutty policy we’re probably stuck with.” As he observed, the only way to undo the Fourteenth Amendment’s birthright citizenship provision would be by enacting a constitutional amendment, a process that requires the House and Senate to approve by a two-thirds vote, and three-fourths of the states to do likewise — something that is unlikely in the current political climate.
Nonetheless, the Trump administration took its case to the Supreme Court on an emergency basis. But instead of asking the court to rule on the legality of Trump’s executive order, the administration focused its argument on the power of federal district court judges to do what they did here — rule against the administration on a nationwide basis.
The odd result is that on Thursday the Supreme Court may hear some arguments about birthright citizenship, but most of the debate is likely to focus on what are called “universal” or “nationwide injunctions,” like the ones in this case, that have barred the administration from enforcing its birthright policy anywhere in the country while the case proceeds through the appellate process in numerous jurisdictions.
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Fixing the problem is not so easy, though, explains William Powell, one of the lawyers representing the Asylum Seeker Advocacy Project, a group suing to block Trump’s birthright order.
“Citizenship under the Fourteenth Amendment needs to apply in a way that is uniform across the country,” he says. “We cannot have a situation in which a baby born in Massachusetts is a birthright citizen but a baby born in Tennessee isn’t.”
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