The Supreme Court on Friday took up whether President Trump’s birthright citizenship restrictions are constitutional, adding another major confrontation with the president to the justices’ docket.
Trump signed the executive order on his first day back in the White House, ending birthright citizenship for children born on U.S. soil if they don’t have at least one parent with permanent legal status.
Nearly a year into Trump’s presidency, it has yet to go into effect. It sparked roughly a dozen legal challenges, and every court to weigh in so far has found it runs afoul of the 14th Amendment’s birthright citizenship guarantee.
In an unsigned order Friday, the Supreme Court announced it would review one of those underlying lawsuits backed by the American Civil Liberties Union and other groups. It is set to be heard during the justices’ current term, with a decision expected by summer.
The Trump administration petitioned the high court to review the order’s constitutionality after judges blocked the executive order nationwide this summer.
“The lower court’s decisions invalidated a policy of prime importance to the President and his Administration in a manner that undermines our border security,” Solicitor General D. John Sauer wrote in the administration’s petition. “Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people.”
Trump’s executive order upends the conventional understanding of the 14th Amendment’s Citizenship Clause, which states, “All 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 federal courts have only recognized that language to grant a few exceptions, such as Native Americans, who were later granted citizenship under federal law, and the children of foreign diplomats.
The justices will also take up whether Trump’s restrictions comply with the federal statute where Congress codified that understanding.
Last term, the Supreme Court got involved after several federal judges prevented Trump’s executive order from going into effect anywhere in the country, rather than merely blocking the policy for the specific plaintiffs who filed the lawsuits.
At that stage, the Trump administration only asked the high court to weigh in on the rulings’ nationwide scope. The justices voted 6-3 to claw back nationwide injunctions, but the decision did not address the legality of Trump’s order.
It handed a short-lived win to the administration. The justices had still left the door open for nationwide injunctions through class actions or when states need national uniformity to receive “complete relief.” The decision sparked a new wave of litigation.
On July 10, a federal judge in New Hampshire provisionally certified a class of all babies who could be impacted by the order and blocked enforcement against them. That case was brought by lawyers at the American Civil Liberties Union, the NAACP Legal Defense & Educational Fund, Democracy Defenders Fund and the Asian Law Caucus.
As the Trump administration petitioned the Supreme Court to review that ruling, the groups opposed the justices getting involved.
“No president can change the 14th Amendment’s fundamental promise of citizenship,” ACLU National Legal Director Cecillia Wang said in a statement.
“For over 150 years, it has been the law and our national tradition that everyone born on U.S. soil is a citizen from birth,” she continued. “The federal courts have unanimously held that President Trump’s executive order is contrary to the Constitution, a Supreme Court decision from 1898, and a law enacted by Congress. We look forward to putting this issue to rest once and for all in the Supreme Court this term.”