Four questions in the Supreme Court arguments in birthright citizenship cases

The Supreme Court will hear oral arguments on May 15 in three cases challenging an executive order President Donald Trump signed on January 20 purporting to limit who is entitled to “birthright citizenship,” i.e., who automatically becomes a US citizen if and when they are born on US soil.

The Supreme Court will hear oral arguments on May 15 in three cases challenging an executive order President Donald Trump signed on January 20 purporting to limit who is entitled to “birthright citizenship,” i.e., who automatically becomes a US citizen if they are born on US soil. The argument is not formally about whether Trump’s policy is constitutional, but is, instead, focused on a technical question about the injunctions that three different lower courts issued to block the policy from taking effect. The court’s ultimate decision will have a lot to say about whether and to what extent the policy is allowed to go into effect. While extraordinarily significant, that is not necessarily the same thing as a ruling on the policy’s legality; it is distinctly possible that the Supreme Court will go out of its way to not address whether Trump’s policy is constitutional in a ruling that nevertheless allows it go into effect across much (if not most) of the country. Trump’s order directs federal agencies to not recognize as citizens individuals born in the United States on or after February 19 if, at the time of their birth, (1) their father was not a citizen or lawful permanent resident (“Green Card” holder); and (2) their mother was either unlawfully present in the United States or lawfully present with only temporary status (e.g., a student visa). This executive order reflects a dramatic shift from what had been the consistent US practice going back to the ratification of the citizenship clause of the 14th Amendment in 1868, which provides that “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.” Under that text, as interpreted by the Supreme Court in 1898, the immigration status of a child’s parents has historically been irrelevant to whether a child born on US soil is a citizen. Congress also passed a law in 1940 consistent with that understanding. Thus, the Trump policy would condition citizenship in many (future) cases on the mother’s immigration status at the time of the child’s birth. The policy itself would have no retroactive effect on those who are already citizens.