Trump Appeals to Supreme Court Regarding Birthright Citizenship

EMERGENCY DOCKET

On Thursday, the Trump administration requested that the Supreme Court permit it to implement an executive order signed by President Donald Trump that abolishes birthright citizenship—the assurance of citizenship to nearly all individuals born in the United States. Through a series of nearly identical submissions by Acting Solicitor General Sarah Harris, the administration implored the justices to partially lift preliminary injunctions issued by federal judges in Seattle, Maryland, and Massachusetts, which prevent the administration from enforcing Trump’s executive order nationwide.

Harris asserted that the type of widespread injunctions—often labeled as “universal”—granted in these three cases “overstep constitutional limits on jurisdiction” and “undermine the Executive Branch’s capacity to execute its functions.” “This Court,” she emphasized, “should assert that enough is enough before district courts’ increasing reliance on universal injunctions becomes even more entrenched.”

Instead, Harris encouraged the justices to confine the district judges’ rulings, restricting the enforcement block solely to a smaller cohort: the individual plaintiffs in the three cases, the specific members of the groups contesting the order named in the complaint, and—should the court acknowledge that states have the legal grounds to challenge the order—residents of those states. At the very least, she argued, the federal government should be granted the ability to take “internal steps to implement” the executive order while litigation continues, even if it cannot enforce it.

Birthright citizenship was formally enshrined in the Constitution in 1868 with the adoption of the 14th Amendment, following the Civil War. This amendment states that “[a]ll 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.” The United States is among approximately 30 nations, including its neighbors Canada and Mexico, that confer automatic citizenship to anyone born on their territory.

Under Trump’s executive order, set to take effect 30 days after signing, children born in the U.S. would not automatically receive citizenship if their parents are either undocumented or temporarily present in the country.

During a hearing in late January, Senior U.S. District Judge John Coughenour of the Western District of Washington, appointed by Ronald Reagan, labeled the executive order as “blatantly unconstitutional” and imposed a temporary 14-day ban on its enforcement. At a subsequent hearing on Feb. 6, Coughenour extended this prohibition, defining birthright citizenship as a “fundamental constitutional right.”

A federal appeals court in San Francisco rejected Trump’s request to suspend Coughenour’s injunction except concerning the individual plaintiffs while the case proceeds on appeal.

Judge Danielle Forrest, a Trump appointee, clarified in a six-page concurring opinion that while the case was rightly expedited, the Trump administration had not demonstrated that it constituted an “emergency demanding an immediate response.” It was insufficient, Forrest noted, that Coughenour’s injunction momentarily bars the government from putting the executive order into action. “It is customary,” she remarked, “for both executive and legislative measures to face judicial scrutiny, particularly when a new policy significantly deviates from previous norms.”

Reiterating concerns about the Supreme Court’s handling of its emergency docket, Forrest posited that the rapid decision-making could diminish public trust. She argued that “swift rulings risk undermining public confidence. Judges are obligated to arrive at their determinations independently of ideology or political biases. When we address issues of substantial public relevance and political contention mere hours after concluding our review of the final brief, we should not be surprised if the public perceives us as politicians in disguise.”

In Maryland, U.S. District Judge Deborah Boardman issued a separate ruling on Feb. 5 that forbade the Trump administration from enforcing the executive order dated Jan. 20 while an ongoing lawsuit by immigrant rights organizations and several pregnant women is underway. Boardman, appointed by Biden, pointed out during a hearing that “no court in the nation has ever validated the president’s interpretation. This court will not be the first.”

A split panel from the U.S. Court of Appeals for the 4th Circuit denied the government’s request to partially suspend Boardman’s decision. Judge Paul Niemeyer opposed this action, describing the Trump administration’s plea as a “modest motion.”

In Massachusetts, U.S. District Judge Leo Sorokin granted a nationwide injunction following a case initiated by a coalition of 18 states, the District of Columbia, and San Francisco. Sorokin reasoned that a more contained injunction limiting application to the states contesting the executive order would be “insufficient,” considering the likelihood that pregnant women living in one state might travel to another state to give birth. The U.S. Court of Appeals for the 1st Circuit declined to partially halt Sorokin’s injunction.

In three largely similar filings made on Thursday, Harris implored the justices to “rectify the district court’s massive remedial foul.” Over the past few years, several justices, including Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, have criticized broad or universal injunctions and encouraged their peers to deliberate on their legality.

In January, the Biden administration requested that the justices assess the appropriateness of nationwide injunctions during an emergency appeal seeking permission to enforce a federal anti-money-laundering statute while the appeal is pending. The justices agreed to stay a federal district judge’s ruling that had prohibited the enforcement of the law across the country, but they refrained from addressing the matter of nationwide injunctions.

In that instance, Gorsuch penned a separate opinion asserting that he would have resolved the injunction issue “definitively.”

Harris also argued that the states opposing the executive order lack the legal standing to pursue their lawsuits. She contended that states “cannot claim citizenship rights on behalf of individuals,” and they do not experience harm from the order, since it “does not compel” them “to act or refrain from any action, let alone expose them to any penalties.”

Harris characterized the district courts’ orders in the three birthright citizenship matters as “indicative of a broader trend.” Since Trump’s inauguration on Jan. 20, she lamented, “district courts have consistently issued orders that oversee the internal workings of the Executive Branch by stifling the development of new policies.” However, “[y]ears of experience have demonstrated that the Executive Branch cannot adequately perform its duties if any judge anywhere can enjoin every presidential action globally. The sooner universal injunctions are ‘eradicated entirely,’” she concluded, “the better.”

This article was originally published at Howe on the Court.