By Ariana Figueroa, States Newsroom
WASHINGTON — U.S. Supreme Court justices on Thursday are set to hear oral arguments in three cases stemming from the Trump administration’s attempt to end the constitutional right of birthright citizenship — though the focus may be on the power of district court judges to issue orders with national effects.
It’s one of the first major legal fights of the Trump administration’s second term to reach the high court, and one of several immigration-related emergency requests to be considered.
The justices have before them three challenges to President Donald Trump’s executive order to end birthright citizenship, from courts in Maryland, Massachusetts and Washington state. Under birthright citizenship, all children born in the United States are considered citizens, regardless of their parents’ legal status.
But the Trump administration has asked the Supreme Court to focus instead on whether lower court judges can issue nationwide injunctions, rather than the constitutionality of the executive order. Such injunctions affect everyone in the country and not just those involved in the case or living in the court’s district.
It is up to the court alone to decide, though, what it wants to consider, and justices could also wade into the birthright citizenship question.
If birthright citizenship were to be eliminated, more than a quarter of a million children born each year would not be granted U.S. citizenship, according to a new study by the think tank Migration Policy Institute.
It would effectively create a class of 2.7 million stateless people by 2045, according to the study.
The lawyers who will be making oral arguments in court are New Jersey Solicitor General Jeremy Feigenbaum and Kelsi Corkran, Supreme Court director at Georgetown’s Institute for Constitutional Advocacy and Protection.
In briefs, they argue that the Trump administration has not shown it will be harmed by the multiple district courts placing the executive order on hold.
On the core issue of birthright citizenship, in their briefs, they argue that the 14th Amendment “guarantees citizenship to all born in the United States and subject to the jurisdiction thereof” and cite Supreme Court cases that have upheld birthright citizenship to those born in the U.S.
The nine justices will hear arguments on whether lower courts erred in granting a nationwide pause on the policy that extended beyond the plaintiffs who initially filed the challenge.
Immigrant rights’ groups and several pregnant women in Maryland who are not U.S. citizens filed the case in Maryland; four states — Washington, Arizona, Illinois, and Oregon — filed the case in Washington state; and 18 Democratic state attorneys general filed the challenge in Massachusetts.
Those 18 states are California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Rhode Island, Vermont and Wisconsin.
Solicitor General D. John Sauer, who will argue on behalf of the Trump administration, has criticized the nationwide injunctions as impeding the executive branch’s authority.
The Trump administration has contended that it’s unconstitutional for federal judges to issue nationwide injunctions. Instead, the Trump administration said, the injunctions should be limited to those who brought the challenges.
On Trump’s Inauguration Day, he signed an executive order, which was originally planned to go into effect Feb. 19, that children born in the United States would not be automatically guaranteed citizenship if their parents were in the country without legal authorization or if they were on a temporary legal basis such as a work or student visa.
Birthright citizenship was adopted in the 14th Amendment of the Constitution in 1868, following the Civil War, to establish citizenship for newly freed Black people. In 1857, in Dred Scott v. Sandford, the Supreme Court initially denied citizenship to Black people, whether they were free or enslaved.
In 1898, the Supreme Court upheld birthright citizenship, when the justices ruled in United States v. Wong Kim Ark that children born in the U.S. are citizens.
In that case, Ark was born in San Francisco, California, to parents who were citizens of the Republic of China, but had a temporary legal authority to be in the country, such as a visa.
When Ark left the U.S. for a trip to China, on his return his citizenship was not recognized and he was denied reentry due to the Chinese Exclusion Act— a racist law designed to restrict and limit nearly all immigration of Chinese nationals.
The high court eventually ruled that children born in the United States to parents who were not citizens automatically become citizens at birth.
In arguments in the lower courts on the current case, attorneys on behalf of the Trump administration argue that the Wong Kim Ark case was misinterpreted and pointed to a phrase in the 14th Amendment: “subject to the jurisdiction.”
The Trump administration contends that phrase means that birthright citizenship only applies to children born to parents who are “subject to the jurisdiction” of the United States. In their view, people in the U.S. without legal status or temporary legal status are “subject to the jurisdiction” of their country of origin.
Tribal law scholars have noted that the language pertaining to “jurisdiction of” stems from the idea of political alliance when it comes to tribal sovereignty.
It’s from another Supreme Court case involving the U.S. citizenship of American Indian citizens, which the Trump administration focuses on in its argument, citing Elk v. Wilkins in 1884.
In that case, the Supreme Court denied citizenship to John Elk, a Winnebago man living in Omaha, Nebraska, on the grounds that “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities.”
Torey Dolan, an assistant professor of law at the University of Wisconsin Law School, said the Trump administration’s reliance on Elk in its birthright citizenship executive order and the idea the political alliance of a parent would then transfer to a child is a misinterpretation.
“A lot of this reliance on Elk is really a distortion,” Dolan said. “I think the administration’s reliance is a stretch, at best, and a bastardization of the case, at worst.”
Dolan, an enrolled citizen of the Choctaw Nation of Oklahoma, said some Native Americans were excluded from citizenship in the 14th Amendment because during that time, Congress would specifically sign treaties with tribes and grant citizenship.
“That is consistent with a long history of Congress creating pathways to Indian citizenship,” she said.
After the justices hear arguments on Thursday, any decision is likely to come before the Supreme Court’s recess in early July.
