THIS is when the Supreme Court decides if the United States will remain a democratic Republic or a neo-nazi, fascist authoritarian theocratic oligarchy. From the Washington Post ...
Supreme Court will review Trump’s attempt to ban birthright citizenship
In a brief order, the justices put off a decision about the lower court rulings and instead scheduled oral argument for May 15.
Trump’s order would deny citizenship for new babies if neither parent is a U.S. citizen or legal permanent resident, a population that some studies have estimated at more than 150,000 newborns per year. Judges in lawsuits joined by 22 states and D.C. have blocked the citizenship ban nationwide while litigation continues.
The Justice Department had urged the Supreme Court to limit those lower-court orders to the individuals or states behind the lawsuits while the cases make their way through the court system, or to at least allow the relevant federal agencies to begin developing plans and issuing public guidance for banning birthright citizenship if Trump’s effort eventually passes legal muster. Presidents from both parties — and several Supreme Court justices — have raised concerns about the power of a single judge to block an administration’s initiative nationwide.
The court’s decision to take up the administration’s emergency request and add a new case to its calendar shows the justices are giving weight to the matter. Based on the ask from Trump’s lawyers, the argument is expected to focus on the scope of the nationwide orders blocking Trump’s policy and whether individual states have legal grounds or standing to bring the challenge — rather than a direct review of the constitutionality of the administration’s proposal.
Solicitor General D. John Sauer used the administration’s request to sharply criticize nationwide injunctions, which have halted many of Trump’s efforts to dismantle federal agencies, curb spending and shrink the size of the federal workforce. The administration has asked the Supreme Court to pause or overturn several such rulings.
“The need for this Court’s intervention has become urgent as universal injunctions have reached tsunami levels,” Sauer wrote in his filing, which pointed to a total of 28 nationwide orders issued by judges in February and March.
Trump has had a mixed record at the Supreme Court in his second term, with the justices backing lower-court orders to restart foreign aid funding and to release a wrongly deported Maryland man from a brutal megaprison in El Salvador. The justices also made clear in a separate case that immigrants subject to deportation orders must be able to challenge the administration’s efforts to invoke a rarely used wartime statute to remove them from the country.
In response to other emergency requests, however, the justices sided with Trump, pausing an order requiring the government to rehire probationary federal employees and allowing the administration to freeze the payment of teacher grants while litigation on those cases continues.
In some cases — including the mistaken deportation of Kilmar Abrego García — the high court’s technical, procedural orders against Trump have left Justice Department lawyers an opening to push back and refuse to immediately comply with orders issued in lower courts.
Attorney General Pam Bondi and other administration officials have accused lower-court judges of overstepping their authority in Trump-related lawsuits, especially when the judges issue nationwide injunctions against a particular policy, as happened with birthright citizenship.
Nationwide injunctions were rarely issued before the 1960s, but their use has increased in recent years in a polarized political environment. Judges issued six injunctions against the policies of President George W. Bush, 12 against President Barack Obama’s initiatives and 64 against Trump’s agenda in his first term, according to data compiled by the Harvard Law Review. President Joe Biden had 14 injunctions issued against his priorities.
Lawmakers in Congress have proposed limiting nationwide injunctions, and several justices, including Neil M. Gorsuch, Clarence Thomas and Elena Kagan, have expressed concern about the phenomenon.
Supporters say nationwide injunctions are an efficient way to halt potentially illegal government action and to avoid multiple parties filing overlapping lawsuits against policies with national implications, such as immigration.
“The Trump administration is breaking norms and rewriting the way government does business,” said University of Virginia law professor Amanda Frost, an immigration expert. “Nationwide injunctions are the only way to hold the line in a rapidly shifting legal environment and to prevent the executive branch from unilaterally changing the law.”
At issue in the birthright citizenship case is the 14th Amendment, adopted after the Civil War in 1868 to establish citizenship for freed Black Americans, as well as “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The citizenship clause reversed the Supreme Court’s infamous decision in Dred Scott v. Sandford, which had denied citizenship to Black Americans.
“Birthright citizenship was enshrined in the Constitution in the wake of the Civil War, is backed by a long line of Supreme Court precedent and ensures that something as fundamental as American citizenship cannot be turned on or off at the whims of a single man,” New Jersey Attorney General Matthew J. Platkin, who is leading a coalition of Democratic attorneys general challenging the citizenship ban, said in a statement Thursday.
“Stripping hundreds of thousands of American-born children of their citizenship would inflict tremendous and irreparable harms on the States and the public.”
Trump and his allies say they have the authority to ban birthright citizenship because unauthorized immigrants are in the country without permanent legal status and, therefore, are not “subject to the jurisdiction” of the U.S. government. Since the 1990s, some restrictionist groups and Republican lawmakers have pressed to ban birthright citizenship, which they consider an incentive for people to enter or remain in the country illegally.
“The Citizenship Order is lawful and restores the original public meaning of the Fourteenth Amendment,” Sauer said in a filing. “A policy of near-universal birthright citizenship rewards lawbreaking and creates powerful incentives for illegal migration.”
In a statement Thursday, Sen. Lindsey Graham (R-South Carolina) said, “I have long believed that the 14th amendment does not require granting citizenship to the children of illegal aliens or foreign nationals here on temporary, nonimmigrant visas,” and the senator added that he hopes the Supreme Court will “settle this issue once and for all.”
Most legal scholars have rejected that analysis, however, because noncitizens can be arrested and charged with crimes, put in jail or deported. There is also wide agreement that Trump’s argument would require a reinterpretation of the 14th Amendment — and that it conflicts with settled Supreme Court precedent that protects citizenship for most everyone born on U.S. soil, except for the children of foreign diplomats.
The Supreme Court upheld the guarantee of birthright citizenship in 1898 when it ruled that a child born within the United States, Wong Kim Ark, was a citizen even though his parents were “subjects of the Emperor of China,” were ineligible to ever become citizens and eventually returned to China.
In opposing the Trump administration’s request to the Supreme Court, the challengers told the justices there is no evidence that birthright citizenship is linked to illegal immigration at the U.S.-Mexico border.
“The children of parents on student or work visas are covered by the Order but have nothing to do with the southern border,” the Asylum Seeker Advocacy Project and CASA said in a court filing.
“Many undocumented people, likewise, did not enter the United States through the southern border and have been living, working, and paying taxes in the country for years.”
The challengers warned of chaos, confusion and disparate state-by-state policies if the Supreme Court allowed the Trump administration to begin banning birthright citizenship in more than half the states. An infant born to noncitizen parents in New Jersey, for instance, would be a U.S. citizen, but the same child born in Tennessee would be a deportable noncitizen.
The court should not create a “situation in which a person’s fundamental right to citizenship depends on the state in which they are born,” the filing said.
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