The US President wants to abolish a right enshrined in the US Constitution for 157 years – and now there’s almost nobody who can stop him
Donald Trump wants to abolish a major right people born in America have enjoyed for 157 years – and is enshrined in the US Constitution.
He’s taking his fight against ‘birthright citizenship’ all the way to the Supreme Court – and won a major victory last night.
In a decision that hands him almost unlimited power to change American laws with a wave of his hand, Supreme Court justices ruled that individual federal judges would no longer be allowed to halt or block his executive orders – even if they’re unconstitutional.
It leaves just the Supremes themselves between him and whatever he wants to do.
And the next thing on his list is birthright citizenship – an issue likely to come before the highest court in October.
Here’s what’s at stake for Americans if that happens.
What is birthright citizenship?
Birthright citizenship is the rule that if you’re born in the United States, you’re a US citizen, regardless of your parents’ immigration status.
The practice goes back to soon after the Civil War, when Congress ratified the Constitution’s 14th Amendment, in part to ensure that Black people, including former slaves, had citizenship.
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” the amendment states.
Thirty years later, Wong Kim Ark, a man born in the US to Chinese parents, was refused re-entry into the U.S. after traveling overseas. His suit led to the Supreme Court explicitly ruling that the amendment gives citizenship to anyone born in the US, no matter their parents’ legal status.
It has been seen since then as an intrinsic part of US law, with only a handful of exceptions, such as for children born in the US to foreign diplomats.
Because it’s enshrined in the 14th amendment to the Constitution, it should require a congressional supermajority to change the rule – at least that’s the theory.
Why does Trump want to get rid of it?
Republicans have long argued this leads to undocumented immigrants having “anchor babies” – a truly unpleasant term suggesting some people have children to make them harder to deport.
And Trump himself has argued, baselessly, that the amendment was only ever intended to cover freed slaves, which ignores decades of caselaw and precedent.
How is Trump trying to scrap it?
Trump claims he can set it aside with an executive order – and he signed such an order almost immediately upon returning to the White House in January.
Trump’s executive order would deny citizenship to those born after February 19 whose parents are in the country illegally.
It’s part of the hardline immigration agenda of the president, who has called birthright citizenship a “magnet for illegal immigration.”
Trump and his supporters focus on one phrase in the amendment – “subject to the jurisdiction thereof” – saying it means the US can deny citizenship to babies born to women in the country illegally.
What’s the pushback been like?
Some 22 states have brought lawsuits challenging the order, with one brought by Washington state, Arizona, Oregon and Illinois heard first in Seattle.
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is,” U.S. District Judge John Coughenour told a Justice Department attorney.
“This is a blatantly unconstitutional order.”
In Greenbelt, Maryland, a Washington suburb, U.S. District Judge Deborah Boardman wrote that “the Supreme Court has resoundingly rejected and no court in the country has ever endorsed” Trump’s interpretation of birthright citizenship.
So is it still blocked?
Briefly.
The Supreme Court did not address the merits of Trump’s bid to enforce his birthright citizenship executive order – yet.
Instead, they were asked to rule on the principle of state and district judges blocking orders for the whole country – which the Supremes decided wasn’t on, despite being a right enjoyed by judges for decades.
“The Trump administration made a strategic decision, which I think quite clearly paid off, that they were going to challenge not the judges’ decisions on the merits, but on the scope of relief,” said Jessica Levinson, a Loyola Law School professor.
Attorney General Pam Bondi told reporters at the White House that the administration is “very confident” that the high court will ultimately side with the administration on the merits of the case.
What happens next?
The justices kicked the cases challenging the birthright citizenship policy back down to the lower courts, where judges will have to decide how to tailor their orders to comply with the new ruling. The executive order remains blocked for at least 30 days, giving lower courts and the parties time to sort out the next steps.
The Supreme Court’s ruling leaves open the possibility that groups challenging the policy could still get nationwide relief through class-action lawsuits and seek certification as a nationwide class. Within hours after the ruling, two class-action suits had been filed in Maryland and New Hampshire seeking to block Trump’s order.
But obtaining nationwide relief through a class action is difficult as courts have put up hurdles to doing so over the years, said Suzette Malveaux, a Washington and Lee University law school professor.
“It’s not the case that a class action is a sort of easy, breezy way of getting around this problem of not having nationwide relief,” said Malveaux, who had urged the high court not to eliminate the nationwide injunctions.
Justice Sonia Sotomayor, who penned the court’s dissenting opinion, urged the lower courts to “act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review” in cases “challenging policies as blatantly unlawful and harmful as the Citizenship Order.”
Opponents of Trump’s order warned there would be a patchwork of polices across the states, leading to chaos and confusion without nationwide relief.
“Birthright citizenship has been settled constitutional law for more than a century,” said Krish O’Mara Vignarajah, president and CEO of Global Refuge, a nonprofit that supports refugees and migrants. “By denying lower courts the ability to enforce that right uniformly, the Court has invited chaos, inequality, and fear.”