Challenge from Washington and other states to Trump’s order ending birthright citizenship makes way to U.S. Supreme Court

The U.S. Supreme Court heard oral arguments Thursday in a case that could upend long-standing precedent on who is guaranteed American citizenship under the Constitution.

The hearing was more focused on whether federal judges should have the power to temporarily halt federal rules nationwide, a power that has stymied presidential administrations from both parties for decades from implementing policies as legal challenges make their way through the courts.

The case offered the first opportunity to hear how the justices may rule on a standing precedent that babies born in the United States are guaranteed citizenship in the country, regardless of their parents’ immigration status.

“This case is a clear example of what is at stake. The fact that a child who’s born in Washington state might be a citizen, but a child born in Mississippi might not be. That’s exactly what the 14th Amendment was meant to stop, meant to curb,” Ama Frimpong, legal director at CASA, a Maryland-based immigrants’ rights group, said during a demonstration ahead of the hearing. “And it’s a classic example of why nationwide injunctions are important, so that across the country, rights and protections are guaranteed for everyone.”

President Donald Trump has sought to end the principle, and signed an executive order on his first day of his second term that claimed a baby born in the country must have at least one parent who is either a citizen or a lawful permanent resident to automatically qualify for birthright citizenship.

“If somebody sets a foot, just one foot, you don’t need two, on our land, congratulations, you are now a citizen of the United States of America. Yes, we’re going to end that, because it’s ridiculous,” President-Elect Trump said during a December interview, as he vowed to end birthright citizenship.

As he signed the order in the Oval Office, Trump acknowledged to reporters that the order “could be” challenged in the courts.

“We think we have good ground, but you could be right,” Trump said after a reporter asked about potential legal challenges. “You’ll find out. It’s ridiculous. We’re the only country in the world that does this with birthright, you know, and it’s just absolutely ridiculous.”

Thirty-two other countries – including Mexico and Canada – guarantee unrestricted birthright citizenship, and an additional 32 countries guarantee birthright citizenship with some restrictions. Under the 14th Amendment to the Constitution, “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.”

Birthright citizenship dates back more than 150 years, when “our nation had a population of formerly enslaved people who were, in effect, stateless” and has since been affirmed by the U.S. Supreme Court to include the children of noncitizens, according to Washington State Attorney General Nick Brown.

Trump’s order was immediately challenged by several groups of states, including Washington, with several federal judges soon issuing nationwide injunctions to block the executive order from taking effect.

As he issued a preliminary injunction in February, Seattle-based U.S. District Court Judge John Coughenour said, “It has become ever more apparent that to our president the rule of law is but an impediment to his policy goals.”

In an emergency appeal to the Supreme Court filed in March, the Trump administration asked the justices to narrow court orders to the people and groups that filed suit, and to find that the states lacked legal standing to bring their challenges.

Jeremiah Chin, an assistant professor at the University of Washington Law School, said that during the Thursday hearing, the court is “really focused on the nationwide injunction issue in this case.”

At one point, Justice Sonia Sotomayor said that “as far as I see it, this order violates four Supreme Court precedents.”

“They were, at various points, trying to avoid the merits,” Chin said. “I think Justice Sotomayor was trying to pull them closer to the merits, because of just the level of absurdity involved in this case and how the court is going to and needs to reach the merits. And by the merits, of course I mean this issue of whether or not the executive branch can redefine birthright citizenship in a way that the court never had.”

Sotomayor also questioned whether the federal government’s position would block the Supreme Court and lower courts from preventing instances in which the executive branch violates court rulings.

Chin pointed to an interaction between Justice Amy Coney Barrett and United States Solicitor General D. John Sauer, in which Barrett repeatedly pressed the solicitor general about whether the administration would abide by circuit court rulings against the administration.

In his response, Sauer said it was his understanding that the practice was to “generally respect circuit precedent but not necessarily in every case.”

The response, Chin said, “leaves open these loopholes where the executive branch would be totally unwilling to follow the rulings of a court of appeals.”

That, Chin added, could “cause a lot of pause and consideration” among the justices “even those who might be amenable to the argument of the administration.”

Sauer told the court that universal injunctions create far-reaching problems and promote “forum shopping,” in which parties file a case in a jurisdiction that is most sympathetic to the arguments.

Nationwide injunctions have increased during the past 60 years and have increasingly prevented the past five presidential administrations from implementing policies, Sauer said. The issue, he said, “really exploded” in 2007.

On Thursday, Sotomayor said the country has had “universal injunctions in some form since the founding.”

Jeremy Feigenbaum, the New Jersey solicitor general who argued on behalf of the states, said the federal government’s proposal to limit the injunction to either the states or groups who brought the challenge would “require citizenship to vary based on the state in which you’re born, or even turn on or off when someone crosses state lines.”

Feigenbaum said limiting the scope of the injunction would raise “serious and unanswered” questions in the case, “not just for the federal government, but also for the states, and would offend the text and history of the citizenship clause itself.”

Following the hearing, a coalition of attorneys general – including Brown – issued a joint statement which said it was “proud to stand together to defend birthright citizenship and the rule of law at the U.S. Supreme Court today.”

The Supreme Court ruled in 1898 in a 6-2 decision that a person born in the United States is a citizen of the United States even if “born of resident aliens.” The only exceptions, according to the majority opinion written by Justice Horace Gray, were children born to foreign officials representing foreign nations, babies born on foreign ships, children of Indian tribe members and anyone born to “enemies within and during a hostile occupation of a part of our territory.”

“The Trump Administration’s argument before the Supreme Court today – that the President should be permitted to strip American citizenship from people based solely on the state in which they happen to be born – would upend settled law and settled practice and would produce widespread chaos and disruption,” the statement from the attorneys general said.

Standing on the steps of the Supreme Court, Brown said “we cannot address a more fundamental issue than the issue the court is beginning to address today and what it means to be an American in the United States.”

“And all of the precedent is on the side of the state actors here,” Brown said. “Time and time again, the Supreme Court has weighed in on this and affirmed that if you were born in the United States, that you are a citizen.”

Brown said that during the hearing, the justices began to “dissect the absurdity” of the federal government’s arguments.

“That you would cross the border of my state of Washington, and you would move to Idaho, and you would lose your citizenship,” Brown said. “That you would move from any one state that has participated in litigation, and lose your rights and privileges that come with being an American citizen. It’s an absurd argument.”

Brown said overturning the injunction could result in some babies being born stateless.

“What do we do with those children? How do we address the problems that they are facing?” Brown said. “So not only do we think that we need to prevail to ensure what it means to be an American, but to protect the rights of all of the children that are born here to not have to deal with the complete lawlessness that might come from this presidential action.”

It’s not clear when the court may issue a ruling on the nationwide injunction, or what form it could take. Should the justices rule in the federal government’s favor and limit the injunctions, Sauer indicated that there would likely be a ramp-up period before the limitations on birthright citizenship took effect.

Were the executive order to take effect, around 150,000 babies born every year would no longer qualify for automatic citizenship.

Chin said while the court may issue a ruling on the nationwide injunction, it will eventually have to decide the merits of the challenge to the executive order.

“If the executive order were allowed to go into effect, and if the district courts’ rulings were limited to only their jurisdictional districts, then it would create a new nationwide problem of the 14th Amendment, which is supposed to create this nationwide standard for how the Constitution is applied against a government, to becoming a piecemeal piece of legislation and not even a real constitutional amendment,” Chin said. “So I think that would create even bigger constitutional concerns than the executive order itself, which is already problematic.”

Spokesman-Review reporter Orion Donovan Smith contributed to this report from Washington D.C.