Supreme Court could block Trump's birthright citizenship order but limit
nationwide injunctions
[May 16, 2025]
By MARK SHERMAN and LINDSAY WHITEHURST
WASHINGTON (AP) — The Supreme Court seemed intent Thursday on
maintaining a block on President Donald Trump’s restrictions on
birthright citizenship while looking for a way to scale back nationwide
court orders.
It was unclear what such a decision might look like, but a majority of
the court expressed concerns about would happen if the Trump
administration were allowed, even temporarily, to deny citizenship to
children born to people who are in the United States illegally.
The justices heard arguments in the Trump administration’s emergency
appeals over lower court orders that have kept the citizenship
restrictions on hold across the country.
Nationwide injunctions have emerged as an important check on Trump’s
efforts to remake the government and a source of mounting frustration to
the Republican president and his allies.
Judges have issued 40 nationwide injunctions since Trump began his
second term in January, Solicitor General D. John Sauer told the court
at the start of more than two hours of arguments.
Birthright citizenship is among several issues, many related to
immigration, that the administration has asked the court to address on
an emergency basis.
The justices also are considering the Trump administration’s pleas to
end humanitarian parole for more than 500,000 people from Cuba, Haiti,
Nicaragua and Venezuela and to strip other temporary legal protections
from another 350,000 Venezuelans. The administration remains locked in
legal battles over its efforts to swiftly deport people accused of being
gang members to a prison in El Salvador under an 18th century wartime
law called the Alien Enemies Act.
Trump signed an executive order on the first day of his second term that
would deny citizenship to children who are born to people who are in the
country illegally or temporarily.
The order conflicts with a Supreme Court decision from 1898 that held
that the Citizenship Clause of the 14th Amendment made citizens of all
children born on U.S. soil, with narrow exceptions that are not at issue
in this case.
States, immigrants and rights group sued almost immediately, and lower
courts quickly barred enforcement of the order while the lawsuits
proceed.
The current fight is over the rules that apply while the lawsuits go
forward.
The court's liberal justices seemed firmly in support of the lower court
rulings that found the changes to citizenship that Trump wants to make
would upset the settled understanding of birthright citizenship that has
existed for more than 125 years.
Birthright citizenship is an odd case to use to scale back nationwide
injunctions, Justice Elena Kagan said. "Every court has ruled against
you,” she told Sauer.
If the government wins on today’s arguments, it could still enforce the
order against people who haven’t sued, Kagan said. “All of those
individuals are going to win. And the ones who can’t afford to go to
court, they’re the ones who are going to lose,” she said.
Justice Ketanji Brown Jackson described the administration's approach as
“catch me if you can,” forcing everyone to file suit to get “the
government to stop violating people’s rights.”
Several conservative justices who might be open to limiting nationwide
injunctions also wanted to know the practical effects of such a decision
as well as how quickly the court could reach a final decision on the
Trump executive order.
[to top of second column]
|
Hannah Liu, 26, of Washington, holds up a sign in support of
birthright citizenship, Thursday, May 15, 2025, outside of the
Supreme Court in Washington. "This is enshrined in the Constitution.
My parents are Chinese immigrants," says Liu. "They came here on
temporary visas so I derive my citizenship through birthright." (AP
Photo/Jacquelyn Martin)
Justice Brett Kavanaugh pressed Sauer with a series of questions
about how the federal government might enforce Trump’s order.
“What do hospitals do with a newborn? What do states do with a
newborn?” he said.
Sauer said they wouldn’t necessarily do anything different, but the
government might figure out ways to reject documentation with “the
wrong designation of citizenship.”
Kavanaugh continued to push for clearer answers, pointing out that
the executive order gave the government only about 30 days to
develop a policy. “You think they can get it together in time?” he
said.
The Trump administration, like the Biden administration before it,
has complained that judges are overreaching by issuing orders that
apply to everyone instead of just the parties before the court.
Picking up on that theme, Justice Samuel Alito said he meant no
disrespect to the nation's district judges when he opined that they
sometimes suffer from an “occupational disease which is the disease
of thinking that 'I am right and I can do whatever I want.'”
But Justice Sonia Sotomayor was among several justices who raised
the confusing patchwork of rules that would result if the court
orders were narrowed and new restrictions on citizenship could
temporarily take effect in more than half the country.
Some children might be “stateless,” Sotomayor said, because they'd
be denied citizenship in the U.S. as well as the countries their
parents fled to avoid persecution.
New Jersey Solicitor General Jeremy Feigenbaum, representing 22
states that sued, said citizenship could “turn on and off” for
children crossing the Delaware River between Camden, New Jersey,
where affected children would be citizens, and Philadelphia, where
they wouldn't be. Pennsylvania is not part of the lawsuit.
One possible solution for the court might be to find a way to
replace nationwide injunctions with certification of a class action,
a lawsuit in which individuals serve as representatives of a much
larger group of similarly situated people.
Such a case could be filed and acted upon quickly and might even
apply nationwide.
But under questioning from Justice Amy Coney Barrett and others,
Sauer said the Trump administration could well oppose such a lawsuit
or potentially try to slow down class actions.
Supreme Court arguments over emergency appeals are rare. The
justices almost always deal with the underlying substance of a
dispute.
But the administration didn't ask the court to take on the larger
issue now and, if the court sides with the administration over
nationwide injunctions, it's unclear how long inconsistent rules on
citizenship would apply to children born in the United States.
A decision is expected by the end of June.
All contents © copyright 2025 Associated Press. All rights reserved |
