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President Donald Trump is aiming to terminate birthright citizenship in the United States – and the Supreme Court’s recent decision to curb universal injunctions has brought him one step closer to accomplishing that mission.
While changing the way the government gives citizenship to babies born in the United States is still an uphill climb, the high court’s ruling raised the possibility that Trump’s new policy to end automatic citizenship could, at least temporarily, take effect in some parts of the country.
Lawyer Carrie Severino, president of the conservative legal advocacy group JCN, said it was unclear at this stage of litigation how Trump’s policy would work logistically or to whom it would apply. The Supreme Court’s decision, issued June 27, barred Trump’s executive order from becoming active for 30 days.
“Normally, if you give birth at the hospital, they just automatically issue everyone a Social Security number,” Severino told Fox News Digital. “Now the question isn’t open and shut like that.”
SCOTUS RULES ON TRUMP’S BIRTHRIGHT CITIZENSHIP ORDER, TESTING LOWER COURT POWERS
The Supreme Court’s decision arose from various Democratic-led states and immigration rights groups bringing several lawsuits across the country challenging Trump’s executive order, which the president signed shortly after he took office.
The order dramatically changed the scope of birthright citizenship, which is outlined under the 14th Amendment of the Constitution and allows babies born to noncitizens in the United States to automatically receive U.S. citizenship in most cases.
Courts uniformly rejected Trump’s policy and blocked it by issuing universal injunctions that applied to the whole country and not just certain pregnant noncitizens being represented in court.
Seattle-based federal Judge John Coughenour, a Reagan appointee, chastised government attorneys during a February hearing over the matter.
“It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals,” the judge said. “The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain.”
Coughenour later said that if Trump wanted to change the “exceptional American grant of birthright citizenship,” then the president would need to work with Congress to amend the Constitution, rather than attempt to redefine the amendment through an executive order.
What happens in the coming weeks?
In the wake of the Supreme Court’s order, courts and plaintiffs are moving quickly to adapt and, in some cases, find workarounds before the 30-day deadline arrives.
Within hours of the high court’s decision, plaintiffs who brought a birthright citizenship lawsuit in Maryland asked a judge to change the lawsuit to a class action proceeding that covers all babies who will be born after Trump’s executive order takes effect.
The request was one of what is quickly becoming a manifold of court requests that are testing the Supreme Court’s injunction decision and potentially undercutting it.
The Supreme Court’s decision left intact the ability for judges, if they see fit, to use class action lawsuits or statewide lawsuits to hand down sweeping orders blocking Trump’s policies from applying to wide swaths of people.
SUPREME COURT TAKES ON BIRTHRIGHT CITIZENSHIP: LIBERALS BALK AT TRUMP ARGUMENT TO END NATIONWIDE INJUNCTIONS
“The bottom line is that the Trump administration has the right to carry this order out nationwide, except where a court has stayed it as to parties actually involved in a lawsuit challenging it,” Severino said.
American Immigration Council’s Michelle Lapointe wrote online there was a “real possibility” that if the judges overseeing the current lawsuits do not find a way in the next few weeks to issue broad injunctions blocking birthright citizenship, then some states might see the policy take effect.
“That raises the risk of babies born in certain parts of the United States… being fully stripped of their rights as U.S. citizens, perhaps even rendering them stateless,” Lapointe wrote. “The human cost of such an action is unconscionable.”
SCOTUS-bound, again
Regardless of what happens in the coming weeks and months, the underlying merits of Trump’s birthright citizenship policy are on track to end up at the Supreme Court.
The justices were able to avoid touching the substance of Trump’s argument by merely considering the constitutionality of universal injunctions during this last go-round, but the next time a birthright citizenship lawsuit comes before them, they are likely to have to weigh in on whether Trump’s policy is constitutional.
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Severino said she believed the six Republican-appointed justices would rely heavily on “history and tradition” and “what the words were understood to mean in 1868 when the 14th Amendment was passed.”
“It’s a challenging issue, in part because our immigration system looks so dramatically different now than it did at the time of the 14th Amendment, because the sort of immigration we’re looking at was not really on their radar, nor was the type of entitlement state that we are living in,” Severino said.
Michael Moreland, Villanova University law school professor, told Fox News Digital there has long been an academic debate about the language in the amendment. It states that babies born in the United States and “subject to the jurisdiction thereof” are citizens. The dispute, Moreland said, has centered on “how broadly or narrowly” to interpret that clause.
The Trump administration has said that as part of its immigration crackdown, it wants to curtail abuse of the 14th Amendment, which can include foreigners traveling to the United States strictly to give birth with no intention of legally settling in the country. The amendment also incentivizes migrants to enter the country illegally to give birth and rewards pregnant women already living illegally in the country by imparting citizenship to their children, the administration has said.
Judges, thus far, have found that Trump’s policy is at odds with more than 150 years of precedent. The government has long given citizenship to any child born in the United States with few exceptions, such as babies born to foreign diplomats or foreign military members.
“The balance of opinion for a long time has been on the side of saying that the 14th Amendment does have a right of birthright citizenship,” Moreland said.
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