The administration of President Donald Trump filed a series of emergency appeals with the Supreme Court on Thursday, seeking approval to proceed with plans to end birthright citizenship. This move elevates a controversial legal theory that multiple lower courts have strongly rejected.
In its emergency appeals, the Trump administration argued that lower courts had overstepped their authority by issuing nationwide injunctions that blocked the policy. It urged the Supreme Court to limit the scope of these orders.
A federal judge in January ruled that Trump’s executive order was “blatantly unconstitutional” and halted its implementation. Shortly afterward, a Maryland judge stated that the order “runs counter to our nation’s 250-year history of citizenship by birth.” Despite appeals, courts have consistently declined to pause the lower court rulings, which imposed nationwide injunctions on Trump’s order issued on the first day of his second term.
For over 150 years, courts have interpreted the 14th Amendment to ensure citizenship to anyone “born or naturalized in the United States,” regardless of their parents’ immigration status. A landmark 1898 Supreme Court decision affirmed this interpretation, and the current Court has not indicated any intention to reconsider that precedent.
However, some conservative legal scholars argue that this long-standing interpretation is incorrect. They point to a phrase in the 14th Amendment that states citizenship applies only to those “subject to the jurisdiction” of the United States. According to this perspective, immigrants who are in the country illegally remain under the jurisdiction of their home nations and should not be granted U.S. citizenship at birth.
Federal courts in Maryland, Massachusetts, and Washington have all issued injunctions preventing the policy’s implementation. These rulings came in response to lawsuits filed by over 20 states, two immigrant rights organizations, and seven individual plaintiffs.
Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project and lead attorney in one of the lawsuits challenging the administration, criticized the executive order, saying, “The president’s executive order is outrageously illegal and cruel, and it should not be applied to a single baby in this country.” He added, “We are going to continue fighting to ensure that no child is denied their citizenship by this executive order.”
The Trump administration’s Supreme Court appeals do not directly address whether the executive order is constitutional. Instead, they make what the administration calls a “modest” request to narrow the scope of the injunctions. If granted, this request would allow the government to enforce the policy against individuals not currently covered by ongoing litigation.
The Justice Department, in its emergency appeals, expressed frustration with the increasing use of nationwide injunctions, arguing, “Universal injunctions have reached epidemic proportions since the start of the current administration.” It continued, “Those universal injunctions prohibit a Day 1 Executive Order from being enforced anywhere in the country, as to ‘hundreds of thousands’ of unspecified individuals who are ‘not before the court nor identified by the court.’”
As an alternative measure, the administration requested permission to issue guidance on how it would implement the policy, even if the Court did not fully lift the injunctions.
While the focus of the administration’s legal challenge is on lower court rulings that blocked the executive order, the Justice Department used its Supreme Court appeal to outline broader arguments against birthright citizenship.
“During the 20th century,” the administration argued, “the executive branch adopted the incorrect position that the citizenship clause extended birthright citizenship to almost everyone born in the United States – even children of illegal aliens or temporarily present aliens.” It further claimed, “That policy of near-universal birthright citizenship has created strong incentives for illegal immigration.”
With the Supreme Court now reviewing the case, it is expected to establish a briefing schedule that will require the parties challenging the executive order to submit their responses quickly, possibly within just a few days.