CNN
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The Supreme Court on Thursday agreed to hear oral arguments over President Donald Trump’s request to enforce a plan to end birthright citizenship against all but a handful of individuals, though it deferred a request from the administration that would have allowed it to implement its plan immediately.
The high court will hear arguments in the case on May 15.
Though Trump was raising what the administration described as a “modest” request to limit lower court orders against his plans, the court’s decision to hear arguments in the case was nevertheless remarkable and historic. A win for Trump would allow him to enforce a policy that a lower described as “blatantly unconstitutional” throughout most of the nation.
The court did not explain its reasoning and there were no noted dissents.
While presidents of both parties have complained about lower court temporary orders for years, Trump has been a particularly vocal critic since beginning his second term as he has been pummeled with a series of adverse rulings that have slowed his agenda.
“The Trump administration is trying to use a procedural issue to get the Supreme Court to put its birthright citizenship policy into effect across 99% of the country without actually having to decide if the policy is constitutional,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.
The main issue the government has asked the justices to decide is whether it’s appropriate for district courts to issue nationwide injunctions, an issue the justices have already had multiple opportunities to take up in cases with far less fraught politics, Vladeck said.
“It would be a stunning development if the justices used these cases, specifically, to resolve that issue – since it would have the effect of allowing a policy that just about everyone thinks is unconstitutional to nevertheless go into effect on a near-universal basis.”
Trump made ending birthright citizenship part of his campaign for reelection, even though past presidents and courts for more than a century have read the 14th Amendment to guarantee citizenship to anyone “born or naturalized in the United States.”
He signed an executive order on his first day back in the White House that would have barred the government from issuing or accepting documents recognizing citizenship for people born in the US to foreign parents.
The move drew a series of swift lawsuits and lower courts issued sweeping injunctions requiring Trump to halt implementation of his birthright citizenship order. That is likely why Trump focused his appeal not on birthright citizenship, per se, but rather framed it as a “modest” request to limit the scope of the lower court orders.
While that was technically a modest legal request that, in another context, might have found bipartisan support, it is a potentially explosive one practically.
A landmark Supreme Court precedent from 1898, US v. Wong Kim Ark, affirmed the idea that people born in the United States are citizens, and the modern court hasn’t signaled a desire to revisit that holding.
But some conservatives believe those long-held views are misguided. The 14th Amendment includes a phrase that citizenship applies only to people who are “subject to the jurisdiction” of the United States. And, they have said, foreign national parents who are in the US illegally may not be viewed as meeting that requirement.
As it has in many pending cases, the Department of Justice claimed lower courts were vastly exceeding their authority by handing down “nationwide” injunctions that block the government from taking action against anyone – including people who did not sue to challenge the policy. Presidents of both political parties have complained about those orders in recent years. So, too, have some of the Supreme Court’s justices.
But opponents of Trump’s birthright citizenship policy argued that if there was any case that demanded nationwide action, it was this one. That, they argued, was partly because Trump’s efforts were so flagrantly unconstitutional. It also doesn’t make sense, they said, to have one set of citizenship rules for some people and another set for others.
Emergency orders don’t decide the merits of a case, but they often have significant practical implications in the short term. In 2021, the Supreme Court declined to block a Texas law that banned most abortions after six weeks of pregnancy – even though the law conflicted with the court’s landmark 1973 decision in Roe v. Wade. The court’s decision effectively allowed Texas to enforce that six-week ban. Months later, the court’s conservative majority overturned Roe.
Days after Trump signed the order, a federal judge in Washington was who nominated to the bench by President Ronald Reagan, temporarily blocked the administration from enforcing it. In early February, the judge issued a preliminary injunction that indefinitely blocked its enforcement. Days later, a three-judge panel of the 9th US Circuit Court of Appeals upheld that decision. That suit was filed by four states – Washington, Arizona, Illinois and Oregon – and was later consolidated with a suit filed by individual plaintiffs.
“I have been on the bench for over four decades. I can’t remember another case where the question presented was as clear,” US District Judge John Coughenour in Seattle said in January before temporarily blocking Trump from enforcing the order.
At one point, Coughenour described Trump’s effort as “blatantly unconstitutional.”
On February 5, a federal judge in Maryland, appointed to the bench by President Joe Biden, handed down a separate preliminary injunction, barring Trump from enforcing the order nationwide in a case filed by two immigrant rights groups and five individuals. A three-judge panel of the 4th US Circuit Court of Appeals voted 2-1 to uphold that decision.
The two judges in the majority were appointed by Democratic presidents and the dissenter was named by President George H.W. Bush.
Days later, a federal judge in Massachusetts, issued a third injunction in a case filed by New Jersey and 17 other states. That judge was named to the bench by President Barack Obama.
Trump appealed all three cases to the Supreme Court on March 13.
This story has been updated with additional details.
