The Supreme Court on Friday agreed to review President Donald Trump’s bid to upend birthright citizenship. A ruling for the government would discard the long-held understanding of automatic citizenship for people born in the U.S., regardless of their parents’ immigration status.
But even though the court has been siding with the administration on several Trump policies in his second term, there is some reason to doubt that the court will go along with the government on this one.
Indeed, the Trump Justice Department’s litigation strategy suggests some doubt within the administration about how the justices will rule. The government hasn’t been shy about pressing the high court to quickly revive executive policies when they’ve been blocked in lower courts. But it took a different approach when Trump’s executive order on birthright citizenship was uniformly deemed illegal by judges around the country earlier this year. Rather than rush for a high court ruling to reverse those losses on a key executive priority, the administration launched a half-measure: a procedural appeal to curb the use of nationwide injunctions, which judges issued in blocking the policy, rather than urge the justices to immediately deem the underlying policy lawful.
In June, the court split 6-3 to side with the administration in that procedural case, which didn’t address the underlying legality of Trump’s proposed citizenship restrictions.
Dissenting from that ruling in Trump v. CASA, the three Democratic appointees called out the Republican-appointed majority for rewarding the government’s “gamesmanship.” Pointing out that the administration wasn’t asking to fully block the lower court orders that deemed Trump’s policy illegal, Justice Sonia Sotomayor wrote on behalf of the trio that the reason for the government’s approach was “obvious.” That’s because, she wrote, for the government to win on the merits of the citizenship issue, it “would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.”
Now that the justices are taking on the merits of the issue, we may learn whether a majority of the court agrees that Trump’s order is illegal.
The 14th Amendment’s citizenship clause says: “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.” Trump’s executive order cites the “subject to the jurisdiction thereof” language in an attempt to deny automatic citizenship to babies born in two circumstances: 1) when the mother was unlawfully present and the father wasn’t a citizen or lawful permanent resident, and 2) when the mother was lawfully but only temporarily present (such as being on a visa) and the father wasn’t a citizen or lawful permanent resident.
In seeking high court review, the administration wrote that the citizenship clause “was adopted to grant citizenship to newly freed slaves and their children,” not “to the children of aliens illegally or temporarily in the United States.” It urged the court to take up two cases, one from a group of states (Trump v. Washington) and another from individuals (Trump v. Barbara).
In their brief to the justices, the states said they didn’t oppose Supreme Court review, “because this Court has expressed a strong desire to quickly resolve the merits of this issue,” even though, they argued, there’s no open issue for the court to resolve.
The states noted the 1898 high court precedent in Wong Kim Ark, in which the court ruled that a child born in San Francisco to Chinese parents was an American citizen even if his parents couldn’t become citizens. In the Barbara case, the plaintiffs opposed Supreme Court review, similarly citing Wong Kim Ark. “The Court need not take up a question that it already answered 127 years ago,” those plaintiffs wrote, calling that precedent “one of the most important decisions in our nation’s history, and it stands as a cornerstone of our modern society.” But they said if the court is inclined to grant review, it should do so in their case as well as the Washington case. The Supreme Court’s order on Friday said it will be reviewing the appeal in the Barbara case. So, in the event that the court doesn’t think that Trump has a winning argument, why would it grant review? Given the issue’s importance and the nationwide litigation over it – even if that litigation has uniformly rejected the administration – the high court could simply want to put its stamp on the matter, even if it winds up affirming the bottom line that Trump’s order is illegal. Of course, we don’t know what the justices will do until they do it. We should get a sense of their views during a hearing that they may hold in the spring after the parties file more legal briefs, with a decision expected by early July. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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