CNN
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President Donald Trump’s administration asked the Supreme Court in a series of emergency appeals Thursday to allow him to move forward with plans to end birthright citizenship, elevating a fringe legal theory that several lower courts have resoundingly rejected.
In a series of emergency appeals, the Trump administration argued that lower courts had gone too far in handing down nationwide injunctions blocking the controversial policy, and it asked the justices to limit the impact of those orders.
A federal judge in January described his executive order as “blatantly unconstitutional” and blocked its implementation. Days later, a judge in Maryland said that Trump’s plan “runs counter to our nation’s 250-year history of citizenship by birth.”
Appeals courts have brushed aside the Trump administration’s request to pause lower court rulings that imposed nationwide injunctions on an executive order he signed on the first day of his second term.
For more than 150 years, courts have understood the 14th Amendment’s text to guarantee citizenship to anyone “born or naturalized in the United States,” regardless of the immigration status of their parents. A landmark Supreme Court precedent from 1898 affirmed that reading of the law, and the modern court hasn’t signaled any desire to revisit that holding.
But some conservatives have argued that those long-held views are wrong because the 14th Amendment includes a phrase that the benefit applies only to people who are “subject to the jurisdiction” of the United States. Immigrants in the country illegally, the theory goes, are subject to the jurisdiction of their native homeland.
Courts in Maryland, Massachusetts and Washington have all issued injunctions blocking implementation at the request of more than 20 states, two immigrant rights groups and seven individual plaintiffs.
Trump’s appeals to the Supreme Court do not deal directly with the constitutionality of the policy but rather seek what the administration described as a “modest” request to limit the scope of the injunctions. That is nevertheless a significant request because, if the Supreme Court agreed, it would allow the administration to enforce its executive order against people not covered by the pending litigation.
“Universal injunctions have reached epidemic proportions since the start of the current administration,” the Justice Department told the Supreme Court in its emergency appeals. “Those universal injunctions prohibit a Day 1 Executive Order from being enforced anywhere in the country, as to ‘hundreds of thousands’ of unspecified individuals who are ‘not before the court nor identified by the court.’”
As a backstop, the administration said the court should at least allow it to issue guidance explaining how it would implement the policy.
Harry Enten breaks down how Trump’s base feels about ending birthright citizenship
Though it is focused on the orders from lower courts blocking the executive order, the Justice Department spelled out a series of merits arguments in its appeals explaining why it views the long-held conventional wisdom on birthright citizenship to be incorrect.
“During the 20th century,” the administration told the court, “the executive branch adopted the incorrect position that the citizenship clause extended birthright citizenship to almost everyone born in the United States – even children of illegal aliens or temporarily present aliens,” the administration wrote. “That policy of near-universal birthright citizenship has created strong incentives for illegal immigration.”
The Supreme Court is likely to set a briefing schedule that will require those who challenged the Trump administration to respond quickly, potentially within several days.
This story has been updated with additional details.
