WASHINGTON, D.C. — Last Thursday, the U.S. Supreme Court (SCOTUS) heard oral arguments in a consolidated suite of cases that hinge on a central legal question: can the federal government stop issuing citizenship to people born in the United States if their parents are undocumented? The court didn’t end up discussing this question in detail but did dissect the relationship between the judicial and executive branches of the federal government in a way that could have a profound impact on how courts are allowed to check the power of President Donald Trump.
The original suits arose in response to one of the first executive orders issued during Trump’s second term. On Inauguration Day, the president issued “Protecting the Meaning and Value of American Citizenship,” which would deny birthright citizenship to children of undocumented parents and those born to mothers with temporary visas. The order was written to provide state and local governments time to “issue public guidance” about its implementation, but was blocked almost immediately by lower federal courts.
Trump’s executive order takes issue with the popular interpretation of the Fourteenth Amendment. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” the amendment reads.
The Fourteenth Amendment was ratified in 1868, when the country was navigating the aftershocks of the Civil War. It rendered moot earlier cases like Dred Scott v. Sandford, an 1858 SCOTUS decision that found that an enslaved man and his wife were not eligible to be citizens of the United States after they attempted — and failed — to buy their freedom from their deceased master’s widow.
Courts have typically ruled that the Fourteenth Amendment applies to anyone born in the United States regardless of their parents’ citizenship status since 1898, when SCOTUS ruled on the legal status of children born to “alien” parents in United States v. Wong Kim Ark. Wong Kim Ark — a man who was born in San Francisco to undocumented merchants — was denied entry into the United States after visiting his parents’ home country of China.
At the time, many of Ark’s family members were subject to the Chinese Exclusion Act of 1882, forbidding Chinese nationals from entering the country. The Chinese Exclusion Act and other national immigration quotas around the turn of the 20th century gave rise to an economy of human smuggling and illegal border crossing through Mexico. So-called “Mounted Chinese Inspectors” that roamed the Southwest eventually evolved into the modern-day Border Patrol.
Trump’s order directly references the Dred Scott decision, referring to it as “shameful” and accusing then-Chief Justice Roger Taney and others of “misinterpret[ing] the Constitution.” The order accuses the same of contemporary legal scholars who side with the Wong Kim Ark decision. “The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” the order argues, pointing to notable exceptions to the law that include the children of foreign diplomats or a hypothetical occupying army.
In response, a number of entities filed suit, arguing that suddenly revoking a time-honored right would cause chaos. “The Executive order is a flagrant violation of the Fourteenth Amendment,” wrote lawyers for CASA, a nonprofit offering legal support to immigrants and other vulnerable residents. “The principle of birthright citizenship is a foundation of our national democracy, is woven throughout the laws of our nation, and has shaped a shared sense of national belonging for generation after generation of citizens.”
CASA’s complaint included five individual plaintiffs who “are pregnant, reside in the United States, and fear that their children will be denied United States citizenship under the Executive order based on their immigration status and that of their children’s fathers.”
The five women represented by CASA were included in the consolidated caseload presented during last Thursday’s oral arguments. The proceedings attracted a lot of buzz from both immigration advocates and journalists — the network C-SPAN even requested that the court break with tradition and allow video live-streaming. “This case holds profound national significance,” C-SPAN CEO Sam Feist wrote to Chief Justice John Roberts. “The public deserves to witness — fully and directly — how such a consequential issue is argued before the highest court in the land.” (No TV Cameras were present inside the chamber last week, but audio-only recordings aired on the network.)
Billing the central issue of last week’s proceedings as “birthright citizenship,” however, was a bit of a red herring. Solicitor General D. John Sauer took the stand on behalf of the federal government, instead taking issue with lower courts’ use of universal injunctions, through which a judge can block implementation of a law or policy nationwide.
Justice Elena Kagan clocked the government’s strategy as a wise political maneuver, given the dearth of challenges to Wong Kim Ark over the past 127 years. “If I were in your shoes, there is no way I’d approach the Supreme Court with this case,” she told Sauer.
Since January, President Trump has issued 151 executive orders — more than any president has issued in a single year since 1951. The orders do not have the same binding power as laws passed by Congress and many of them have been knocked down by judges.
Sauer argued that these universal injunctions were a novel phenomenon — his research suggested that the first was handed down in 1963 but has “really exploded” in popularity over the past five presidential administrations. He felt that they granted undue power to trigger-happy judges who could shut down a problematic policy without much consideration or warning. “Such injunctions prevent the percolation of novel and difficult legal questions,” he said. “They disrupt the Constitution’s careful balancing of the separation of powers.”
Some of the justices seemed more receptive to this line of reasoning than others. “The practical problem is that there are 680 district court judges, and they are dedicated and they are scholarly,” conceded Justice Samuel Alito. “But you know, sometimes they’re wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want.”
Justice Ketanji Brown Jackson was less convinced. “It seems to me that, when the government is completely enjoined from doing the thing it wants to do, it moves quickly to appeal that to get it to the Supreme Court, and that’s actually what we would want,” she said.
Jeremy Feigenbaum, solicitor general for the state of New Jersey, represented the state plaintiffs during last Thursday’s proceedings. “The U.S.’s objection that [universal injunctions] have simply become too common in the last few months, a complaint about other injunctions sought by other parties, cannot undermine the extraordinary basis for this one,” he said. “Sometimes we [the states] are on the other side of the ‘v’ in cases involving universal relief. So we are sympathetic to some of the concerns the United States has … We just don’t think that that supports a bright-line rule that says they’re never available.”
A decision in this case is expected in early summer.