Trump asks Supreme Court to uphold birthright citizenship restrictions

The Trump administration has asked the Supreme Court to uphold an executive order that would deny birthright citizenship to children born in the United States to parents who are in the country illegally or on temporary visas. The appeal signals a bid to obtain a definitive ruling from the justices on the constitutionality of the policy, with a possible decision by early summer, even as lower courts have blocked its enforcement. The Justice Department has shared the petition with lawyers for parties who challenged the order, but it has not yet been docketed at the Supreme Court.

Solicitor General D. John Sauer argued that the lower court rulings invalidated a policy of prime importance to the president and his administration, saying the rulings undermine border security by effectively granting citizenship to hundreds of thousands of unqualified people. Cody Wofsy, a lawyer for the American Civil Liberties Union representing children who would be affected, said the administration’s plan is plainly unconstitutional, calling the executive order illegal and promising that courts will protect any child’s citizenship from being stripped away by the order.

Trump signed the executive order on the first day of his second term in the White House, a move that would upend more than 125 years of understanding that the Constitution’s 14th Amendment confers citizenship on everyone born on American soil, with narrow exceptions for the children of foreign diplomats and those born to a foreign occupying force. The administration has argued that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship. In a sequence of decisions, lower courts have struck down the order as unconstitutional, or likely so, even after a Supreme Court ruling in late June that limited judges’ use of nationwide injunctions. While the Supreme Court curbed the use of nationwide injunctions, it did not decide at that time whether the underlying citizenship order is constitutional.

The administration is appealing two cases. The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in July that a group of states challenging the order needed a nationwide injunction to prevent the problems that would be caused by birthright citizenship being in effect in some states and not others. Also in July, a federal judge in New Hampshire blocked the citizenship order in a class-action lawsuit including all children who would be affected. Birthright citizenship automatically makes anyone born in the United States an American citizen, including children born to mothers who are in the country illegally, under long-standing rules. The right was enshrined soon after the Civil War in the first sentence of the 14th Amendment. The administration has asserted that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship.

Arguments before the Supreme Court, if the court agrees to hear the case, would likely come after a procedural period that could stretch into late winter or early spring, with a decision potentially arriving by late spring or early summer. The justices did not address the underlying constitutionality of birthright citizenship in the June ruling that limited nationwide injunctions, leaving the circuit court battles and the administration’s petition to play out further on this issue.