The Trump administration is planning to quickly ask the Supreme Court to review the constitutionality of President Donald Trump’s executive order seeking to end birthright citizenship.
Justice Department attorneys informed a federal judge in Seattle of the plans on Wednesday as part of a court-ordered update on where things stand in a challenge to Trump’s Day One order. Late last month, the 9th US Circuit Court of Appeals upheld the judge’s ruling that blocked implementation of the order nationwide.
“In light of the Ninth Circuit’s decision, Defendants represent that the Solicitor General plans to seek certiorari expeditiously to enable the Supreme Court to settle the lawfulness of the Citizenship Order next Term, but he has not yet determined which case or combination of cases to take to the Court,” the attorneys told US District Judge John Coughenour.
The appeal would force the Supreme Court to confront the issue it avoided in its major ruling in the case earlier this summer: Whether Trump’s underlying effort to end birthright citizenship is permitted under the 14th Amendment.
If the court agrees to debate that question it would immediately become one of the highest-profile cases of the decade and a ruling could be possible by mid-2026.
Administration officials have acknowledged that the high court would eventually need to look at Trump’s order, with Attorney General Pam Bondi saying in June that she’s “very confident” the court would eventually rule in its favor on the merits of the policy.
While several other lower courts have blocked Trump’s executive order, the 9th Circuit’s ruling on July 23 represented the first time that an appeals court has fully concluded that the policy is unconstitutional. That type of ruling is typically the last stop for a case before the losing side decides whether to ask the nation’s highest court to review the matter.
The 1st US Circuit Court of Appeals appears poised to issue a similar decision in coming weeks after hearing arguments last Friday in a series of cases in which lower courts in New Hampshire and Massachusetts said Trump’s order violated the Constitution, decades-old Supreme Court precedent and federal law.
The filing to Coughenour appeared to suggest that Solicitor General D. John Sauer may be waiting until that court rules before making a decision on what to do with the Seattle case.
Separately, a federal judge in New Hampshire last month blocked Trump’s order via a class action lawsuit that was brought after the Supreme Court limited the use of nationwide injunctions in June. Such lawsuits are one of the ways the justices suggested challengers could try to jam up enforcement of the policy for those who would be impacted by it.
The Justice Department has not appealed that ruling, though one of its attorneys told the 1st Circuit last week that he was confident the government will be appealing it.
It’s possible that some of these appeals could first land on the Supreme Court’s emergency docket, with the government asking the justices to put the rulings on hold while the cases get resolved.
CNN’s John Fritze contributed to this report.
