Behind the scenes at the Supreme Court, the Justices and their law clerks are pondering how to deal with the constitutional controversy over the citizenship of children born in the U.S. to foreign parents – a historic dispute that is now set for a special hearing three weeks from now.
At the center of that May 15 hearing is President Trump’s order in January seeking to severely restrict those citizenship rights. Trump’s government lawyers have filed three identical appeals, seeking permission to carry out that order; it is currently but temporarily blocked by lower federal courts.
However, this controversy arises in an odd way. On the one hand, Trump’s legal team is not asking the Court to rule now on the Trump order’s validity and they make only the briefest defense on that point. On the other hand, the central theme of almost everyone else taking part in the cases is whether the order is constitutional or not, and they wage a vigorous debate over that.
In reaction, the Court has not given even a reliable hint of how far it will go toward resolving this dispute; its April 17 call for the May hearing was opaque and uncertain. However, the fact that it will hold a hearing at all, and will do so after it normally has closed its hearing schedule for the term, elevates the importance of its review.
At the core of the Court’s review, whatever its intention, is the constitutionality of Trump’s order. It has failed that test, though in a preliminary way only, in every court that has examined it up to now. Those rulings have been based directly on the Constitution’s text and past Supreme Court precedents.
Under the 14th Amendment, ratified in 1868, U.S. citizenship is granted automatically to any child born in the U.S., including those born to parents who are foreign nationals. That “Citizenship Clause” says that it applies everywhere the government has the authority to act.
The wording seems clear enough, but President Trump and his lawyers insist that there are loopholes, and his January order declares that “birthright citizenship” is not available for a child born to parents who are in the U.S. illegally or to those who came to the country legally but only for a temporary stay – to work, to study, to tour, to visit.
That loophole argument is decades old, but until now has been put forward mainly among conservative politicians, historians and legal academics as part of their discontent with U.S. immigration policy. Those critics have argued that the prospect of U.S. citizenship for foreign nationals’ future children induces more of those parents to enter the country illegally. If they come and then have citizen babies, they will make more of a claim to stay.
Outside of those circles, what appears to be the prevailing view is that the meaning of the Clause has been settled, with a generous sweep, ever since the Supreme Court did so in an 1898 ruling. And that’s the view taken by the courts that have blocked the Trump order’s enforcement. Under those lower court temporary rulings, the Trump Administration cannot enforce the order anywhere in the U.S.
The Administration’s lawyers are asking the Justices to do one thing: to narrow the reach of the lower court rulings, so that the limit on citizenship can go into effect in any state other than those involved in these three cases – in other words, they contend, enforcement should be allowed everywhere now except Maryland, New Jersey and Washington State.
There are three and maybe four of the Justices who from time to time have expressed strong reservations about the power of federal judges to issue nationwide orders of the kind at issue in these cases. A judge whose normal authority extends no further than the geographical area where that judge sits, according to that view, should not be allowed to declare law for the whole country. The Court has never decided the point, so it remains unresolved.
It could be that it is this argument, and only this argument, that the Justices have now agreed to review. If that’s what the April 17 grant of review meant, then why not act on that point alone and leave the constitutionality of Trump’s birthright order to await further action in the lower courts?
The answer is a legally nerdy one, but some of the legal briefs in these cases make it fervently: the Court itself may not have the power to step in at this point. The cases, as the Trump team has framed them, are all about a remedy, not about whether there has been a constitutional violation that needs a remedy.
Doesn’t that put things backwards? It does, in a real way. When a higher court, like the Supreme Court, is asked to put a lower court decision on hold while the higher court reviews it, the Court has said repeatedly, the most important factor is “who is likely to prevail at the end of the litigation” – sort of a prediction of the ultimate victor.
In each of the Trump appeals in these cases, the Trump team asked the Justices to block the nationwide bans on enforcement while the constitutional fight continues to unfold. They repeatedly claimed that their request was a narrow one, and their filings make only fleeting comments in support of the Executive Order itself.
The government’s initial 39-page filing contains less than two full pages claiming that the government is likely to win when this constitutional dispute is decided in a final form. Its 19-page reply answering the other side’s filings quotes only the Justices who have questioned nationwide injunctions as authority for the Court’s power to focus now only on the remedy rather than on whether the Trump order is likely to be upheld as valid.
Another factor that may affect how far the Court will go in response to the Trump appeals is that there is no final decision, by any lower court, to be reviewed. All of the results so far are temporary.
Those are the results that the Trump Administration rushed to challenge in the Supreme Court. It was an option open to the Administration to ask the Court to bypass further action in lower courts, take on the case itself right away, hear and decide it during coming weeks. That scenario could have wound up everything by early July.
The Trump team chose not to ask for that. It focused on the breadth of the remedy to seeks at this point. In response, the Court took an even narrower stance. It refused to put the nationwide orders on hold now, combined the three appeals and set May 15 for a hearing. As of today, then, birthright citizenship under the 14th Amendment remains across the country,
The Justices’ order, on its specific terms, does not even commit the Court to do anything beyond hold the hearing next month. They have not promised actual review of the legal issues, procedural or legal.
There is some speculation among legal experts that the Administration has chosen not to mount an extensive argument that the Executive Order is both legal and constitutional because it has no real confidence in the defense it could mount.
However, almost all of other briefs filed in this controversy dwell on the legality, or illegality, of the presidential mandate, as if the Court does intend to reach that ultimate question.
So, what might the Court actually do?
• Simply deny any postponement, leaving the dispute to continue playing out in the lower courts but with enforcement banned everywhere in the meantime, with the prospect of the dispute returning to the Supreme Court at some point in the future.
• Look past the usual requirement that the lower court orders be in final form, and choose to treat the government appeals as proper and ready for review without that, then decide no more than whether to postpone the lower court orders forbidding enforcement.
• Go all the way to conclude the controversy, in one of two ways: first, narrow the reach of the lower court orders without deciding if the Executive Order is valid, or, second, rule directly on the constitutionality of the Trump Executive Order, making it unnecessary to decide on the nationwide reach of the lower court rulings.
Because the Justices’ April 17 order did not say what question or questions they have promised to decide, because they did not outline any questions of their own they will answer, and because they did not tell lawyers to file fuller legal briefs, there will be a dilemma facing lawyers when they rise in the Court for the May 15 hearing. What points should they make that they think will best serve their clients?
Should they argue only about the purely legal issue of judges’ power to impose nationwide restrictions on the government? Should they even discuss whether the Trump order is constitutional? How should they treat the Court’s 1898 precedent and what that means for today? Should they spend some time on the strong human implications, affecting the future of perhaps thousands of newborns across the nation?
The Justices’ questions and comments during that public review may provide some hints of where their inclinations point, but the American public will not know for sure until a final decision – whatever its reach or limits – emerges weeks later.
