Supreme Court Wary of Letting Trump Citizenship Curbs Start (2)

The US Supreme Court signaled it is wary of letting President Donald Trump start to restrict birthright citizenship as the justices debated how much power federal judges should have to block controversial White House policies nationwide.

Hearing oral arguments for the first time on part of Trump’s government overhaul, the court’s conservatives suggested they want to limit the use of so-called nationwide injunctions. But key justices voiced concern about doing so in a way that would let Trump’s planned birthright citizenship restrictions take effect before the high court can rule on their legality.

Trump’s Jan. 20 executive order, which would overturn a longstanding constitutional right, was designed to take effect within 30 days. The administration says three federal judges who have blocked the policy nationwide should have limited their orders to the parties involved in the lawsuits.

Demonstrators outside the US Supreme Court during oral arguments in Washington on May 15.

Photographer: Kent Nishimura/Bloomberg

“How is this going to work? What do hospitals do with a newborn? What do states do with a newborn?” Justice Brett Kavanaugh, a conservative, asked a Trump administration lawyer. “They’re only going to have 30 days to do this. You think they can get it together in time?”

Trump’s executive order would upend the longstanding constitutional rule that virtually anyone born on US soil automatically becomes a citizen. His approach would restrict birthright citizenship to babies with at least one parent who is a citizen or permanent resident. Newborns who don’t meet the new criteria couldn’t get citizenship-based documents including Social Security cards and passports.

300,000 Babies

The order would mean that as many as 300,000 babies born every year would no longer become citizens, according to court filings. And critics say it would create complications for millions of other families, requiring parents to prove their own citizenship when a baby is born and forcing cities and states to quickly create new systems for issuing birth certificates and verifying citizenship.

Read More: Trump Pushes Supreme Court to Undercut the Judges Who Thwart Him

The court’s liberal justices made clear they saw the executive order as unconstitutional. “As far as I see it, this order violates four Supreme Court precedents,” Justice Sonia Sotomayor said.

The justices aren’t directly considering the legality of Trump’s initiative at present. Critics say Trump is trying to unilaterally overturn part of the 14th Amendment, which confers citizenship on anyone who is born in the US and “subject to the jurisdiction thereof.” The 14th Amendment was added to the Constitution in 1868 amid questions about the legal status of formerly enslaved people after the Civil War.

The Supreme Court said in 1898 that the provision covered a man born in California to two Chinese parents, and the court reinforced that decision in a 1982 ruling backing the right of undocumented immigrant children to attend public school. Congress has enacted similar guarantees by statute.

Several justices indicated they want to rule quickly on the legality of the executive order. “How do we get to the merits fast?” conservative Justice Neil Gorsuch asked.

Solicitor General D. John Sauer, the administration’s top Supreme Court lawyer, said judges had issued 40 nationwide injunctions blocking Trump’s policies since he took office. He said those judges were exceeding their constitutional authority.

‘Bipartisan Problem’

“This is a bipartisan problem that has now spanned the last five presidential administrations,” Sauer said.

Explainer: Can Trump Really End Birthright Citizenship?

That argument found a receptive audience among the court’s conservatives. Federal 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 Samuel Alito said.

But Justice Elena Kagan questioned whether the solution was to outlaw nationwide injunctions.

“Look, there are all kinds of abuses of nationwide injunctions,” she told Sauer. But, she added, “if one thinks that it’s quite clear that the EO is illegal, how does one get to that result, in what time frame, on your set of rules without the possibility of a nationwide injunction?”

When Sauer responded that multiple lower courts should weigh in before the Supreme Court decides the issue for the entire country, he drew sharp pushback from conservative Justice Amy Coney Barrett.

“Are you really going to answer Justice Kagan by saying there’s no way to do this expeditiously?” she asked.

Sauer held out the possibility that a case could move forward quickly as a class action but said the government reserved the right to oppose that avenue as well.

Representative Jamie Raskin arrives to speak as demonstrators gather outside the US Supreme Court.

Photographer: Kent Nishimura/Bloomberg

Class Action

Kavanaugh said the use of class actions on a fast-track basis might be a legally sounder way of broadly blocking policies on a preliminary basis. The class action system seems to “do what’s needed here in terms of getting relief to people,” he said.

Trump’s executive order is being challenged in three lawsuits by pregnant women, immigrant-rights organizations and 22 Democratic-run states plus the District of Columbia. In each case, a federal appeals court refused to intervene after a trial judge blocked the executive order nationwide.

The Trump administration chose not to ask the Supreme Court to block three injunctions entirely. That step would have required convincing the justices that the executive order is probably valid.

“Every court to have considered the issue agrees that the order is blatantly unlawful, a determination the stay application does not challenge,” said Kelsi Corkran, a lawyer representing the groups and individuals.

Trump said Thursday on his Truth Social platform that the 14th Amendment’s citizenship clause wasn’t intended to apply to undocumented immigrants. He said it was about “Civil War results, and the babies of slaves who our politicians felt, correctly, needed protection.”

State Concerns

The states say they have their own grounds for blocking Trump’s policy nationwide. They contend they would lose millions of dollars in funding as people become ineligible for federal health-care and social-services programs. And the states say confusion would reign if citizenship hinged on whether a baby was born in a neighboring jurisdiction.

“Since the 14th Amendment, our country has never allowed American citizenship to vary based on the state in which someone resides,” New Jersey Solicitor General Jeremy Feigenbaum argued.

The arguments attracted hundreds of protesters to the front of the Supreme Court building in Washington, brandishing signs with such slogans as “American born children are American children.” Democrats such as former House Speaker Nancy Pelosi and Representative Jamie Raskin addressed the crowd.

“This case is not just about birthright citizenship. It is about who belongs,” said Ama Frimpong, legal director at CASA, one of the groups that has challenged Trump’s executive order. “And if they can take that away from one of us, they can take it away from any of us.”

The cases are Trump v. CASA, 24a884; Trump v. Washington, 24a885; and Trump v. New Jersey, 24a886.

(Updates with Kavanaugh comment in 19th paragraph.)

--With assistance from Erik Larson and Ryan Chua.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Peter Jeffrey

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