The Supreme Court is set to hear historic arguments on Thursday as the Trump administration challenges the constitutional provision that guarantees automatic citizenship to all babies born within the United States. However, the focal point of the arguments may shift primarily to a legal question regarding nationwide injunctions, which could complicate and prolong the process for contesting various legal policies instituted by Trump, not limited to this specific case.
The Fourteenth Amendment, ratified post-Civil War, was designed to counteract the Supreme Court's infamous Dred Scott decision, which ruled that Black individuals, whether enslaved or free, could not be considered citizens of the United States. The Amendment explicitly states: "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 been deemed fringe legal theories for many years. This sentiment is bolstered by a unanimous ruling from the Supreme Court 127 years ago, which upheld the principle of birthright citizenship. Moreover, in 1940, Congress passed a statute that further codified this right for any child born on U.S. soil. Despite this historical context, President Trump has consistently argued that the Constitution does not guarantee birthright citizenship. On the first day of his second presidential term, he issued an executive order aimed at denying automatic citizenship to any baby born in the U.S. to parents who entered the country illegally or were present on temporary visas.
In response, immigrant rights groups and 22 states swiftly challenged this executive order in court. Since then, three federal judges, representing both conservative and liberal viewpoints, have declared the order to be blatantly unconstitutional. Additionally, three separate appeals courts have declined to lift the injunctions blocking the enforcement of Trump's policy while the appeals process is ongoing.
The legal claim made by Trump has garnered minimal support. At a recent event hosted by the conservative Federalist Society, Robert Verbruggen, a writer and senior fellow at the Manhattan Institute, referred to birthright citizenship as a "nutty policy" that the country is likely stuck with. He noted that overturning the Fourteenth Amendment would require a constitutional amendment, a challenging process demanding a two-thirds majority in both the House and Senate, along with ratification by three-fourths of the states—a feat unlikely in the current political landscape.
Despite the emphasis on birthright citizenship, the Trump administration’s appeal to the Supreme Court centers around the broader issue of nationwide injunctions. Instead of directly contesting the legality of the executive order, the administration is questioning the authority of federal district court judges to issue rulings that apply nationally. This could reshape how challenges to executive actions are handled across the country.
As a result, the Supreme Court's discussions may touch on the implications of these nationwide injunctions, which have prevented the administration from enforcing its policies during the ongoing legal battles. University of Notre Dame law professor, Samuel Bray, points out that complaints regarding nationwide injunctions have transcended party lines, affecting both Democratic and Republican administrations over the past decade. He describes these injunctions as a "bipartisan scourge," yet acknowledges the difficulty in establishing principles to differentiate unjustified nationwide injunctions from necessary ones.
Bray further argues that the current climate of judge shopping, where parties select judges likely to agree with their position, exacerbates the issue, leading to more harm than good. He suggests that while the court could recognize Trump's misinterpretation of birthright citizenship, it might simultaneously use this case to eliminate nationwide injunctions altogether.
Conversely, Georgetown University law professor Stephen Vladeck strongly disagrees with this approach. He warns that acknowledging the administration's unlawful actions while permitting enforcement could undermine the integrity of the judicial system. The crux of the matter, according to Vladeck, is whether the federal courts should retain the power to block such policies on a national scale, or if they should be relegated to evaluating cases on an individual basis.
Amidst these legal debates lie real human consequences. Individuals like Dina and Henry (pseudonyms for their protection), asylum seekers from Kenya, exemplify the potential fallout from this case. They have lived in the U.S. for six years and are concerned that their newborn daughter may end up stateless, lacking citizenship in both the U.S. and Kenya. As Henry articulates, their fear is that their daughter could be classified as a member of an unrecognized population.
The decision from the Supreme Court regarding this contentious issue is anticipated by late June or early July, with profound implications for birthright citizenship and the future of nationwide injunctions in the United States.
