The Trump administration is escalating its legal battle to overturn birthright citizenship by bringing the matter before the U.S. Supreme Court. So far, every court that has reviewed Trump’s executive order—issued on his first day in office—has struck it down. Despite these setbacks, Trump remains determined to press forward.
The former president’s claim that birthright citizenship is unconstitutional is widely regarded as an extreme position, given that the Supreme Court ruled against such an argument 127 years ago, and that precedent has remained unchallenged ever since.
The 14th Amendment to the U.S. Constitution clearly states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” However, Trump has repeatedly asserted that not all children born on U.S. soil automatically receive citizenship.
So far, three federal judges across different states have blocked Trump’s executive order attempting to nullify birthright citizenship. Furthermore, three separate appeals courts have refused to lift those rulings. Judge John Coughenour, who was appointed by President Reagan and serves in Washington state, was the first to strike down Trump’s executive order, describing it as “blatantly unconstitutional.”
Nevertheless, on Thursday, the Trump administration submitted three nearly identical petitions to the Supreme Court, seeking to limit the reach of lower court rulings. These nationwide injunctions currently prevent the administration from implementing its new policy on birthright citizenship. By narrowing these injunctions, the administration aims to begin planning for the policy’s potential enforcement.
Stephen Yale-Loehr, a retired Cornell University immigration law professor and co-author of a widely used legal treatise on immigration, believes the Court might be open to granting this temporary limitation. However, he warned, “I think that would cause chaos and confusion as to who was included in the court rulings and who is potentially subject to the birthright citizenship ban if the case goes in favor of the Trump administration on the merits.”
Interestingly, the Trump administration’s petition to the Supreme Court devotes more attention to challenging the ability of lower court judges to issue nationwide injunctions than to the question of birthright citizenship itself. This approach may stem from the fact that certain Supreme Court justices have previously voiced frustration over the broad use of such nationwide rulings. Given the legal difficulties of overturning birthright citizenship, the administration may believe it has a better chance of success by attacking the legitimacy of nationwide injunctions instead.
Ilya Somin, a professor at Antonin Scalia Law School, commented on this legal strategy, stating, “At the very least, they have an indication that they have a better chance on the injunction question than on the [constitutional question] of birthright citizenship.”
However, Republican-led states have frequently relied on nationwide injunctions when challenging policies introduced by the Biden and Obama administrations, yet the Supreme Court did not intervene in those cases. This raises questions about whether the Court would be willing to do so now in response to the Trump administration’s request.
Professor Yale-Loehr suggested that a middle-ground outcome might be likely, allowing the Trump administration to make progress on its efforts to dismantle birthright citizenship without fully achieving its objectives.
“The Supreme Court may well limit the injunctions partially, maybe not to the extent that the Trump Administration wants, but [to the extent] that will allow the Trump administration to claim a political victory,” he explained.
Before making any decision, the Supreme Court justices will first request a response from the opposing side.