By the end of the U.S. Supreme Court’s current term, the justices are expected to weigh in on arguments posed by the administration of President Donald Trump regarding birthright citizenship. A special sitting on the topic is scheduled for May 15.
“This is unusual,” said Laurie Levinson, law professor at Loyola Law School in Southern California, told KCBS Radio’s Holly Quan this week. “This is a bit of an emergency appeal, because the Supreme Court knows that there have been challenges around the country. Every single one of them has gone against the Trump administration.”
Here’s some background on how we got here. Birthright citizenship has been granted to everyone born in the U.S. since the Civil War era. Amy Howe of Howe on the Court explained in a piece this week that the 14th Amendment to the Constitution provides 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.”
That amendment was intended to overrule “one of the Supreme Court’s most infamous decisions, its 1857 ruling in Dred Scott v. Sandford, holding (by a vote of 7-2) that a Black person whose ancestors were brought to the United States and sold as enslaved persons was not entitled to any protection from the federal courts because he was not a U.S. citizen,” Howe said. Then, in 1898, the Supreme Court ruled in the case of Wong Kim Ark, born in San Francisco to parents of Chinese descent, that the 14th Amendment guarantees U.S. citizenship to virtually anyone born in this country.
Howe noted that Trump campaigned on a promise to end birthright citizenship in the U.S. in the lead up to winning the 2024 presidential election. Soon after he was inaugurated in January, he issued an executive order indicating that people born in the United States will not be entitled to citizenship if their parents are in this country illegally or temporarily.
That order was met with lawsuits from several states, as Levinson mentioned.
Last month, then-Acting Solicitor General Sarah Harris of the Trump administration submitted a request to the Supreme Court to put three district judges’ orders on hold and allow the order to be enforced, though exempting some, including the plaintiffs. Harris argued that the nationwide injunctions issued in the cases “transgress constitutional limits on courts’ powers” and “compromise the Executive Branch’s ability to carry out its functions.”
CASA and the Asylum Seeker Advocacy Project – the two immigrants’ rights groups challenging the president’s order in Maryland – disputed the administration’s assertation. CASA said that the nationwide injunctions are simply proportionate to the number of executive orders issued by Trump, which has been notably high.
So far, the nation’s highest court has left in place orders by three federal judges that prohibit the government from enforcing the birthright executive order anywhere in the country, said Howe. That is, until it can hear oral arguments and rule on the Trump administration’s request.
“I think that the strongest argument is in favor of the states, that the 14th amendment says that you have the right to be an American citizen if you’re born here or you’re naturalized here,” said Levinson. “And the Trump administration is saying: ‘Well, it’s not everybody who’s born in the United States.’”
She also said that based upon that Supreme Court decision going back over a century, “all of the Trump claims have lost.”
However, Levinson noted that the Trump administration isn’t just about birthright citizenship. It’s about those nationwide injunctions.
“What you don’t want is some states having one set of constitutional laws and another state having another,” she said. “So, the question really is, the Supreme Court has to decide, is there birthright citizenship or is that executive order by Trump lawful? And if there’s not birthright citizenship, how far does that order extend? Does it extend to all the states in the nation or just state by state?”
In Levinson’s view, the state by state answer isn’t realistic.
“It’s totally unworkable… people move and the states don't necessarily have the records. And you can imagine when a child’s born in a hospital, do they have to do the investigation regarding the background of the parents? I just think that there are many logistical reasons if not constitutional reasons to uphold birthright citizenship,” she explained. The procedural question about nationwide injunctions is less of an uphill battle, the professor said.
Following the special sitting next month, Levinson said the court – which has a conservative majority, including three justices appointed by Trump himself – should issue a decision by the end of July.
“I do think you’ll see a decision very quickly in the case,” she said.