Taking its first opportunity to do so, the Supreme Court agreed on Friday to rule on President Trump’s power to narrow the constitutional right to automatic U.S. citizenship for babies born in this country.
The Court specifically agreed to review an order by a federal judge in New Hampshire that bars the Trump Administration from taking action to deny citizenship or to deport newborn babes of foreign parents – an order that could protect about 200,000 babies each year.
That order by U.S. District Judge Joseph N. LaPlante of Concord applies across the nation to children covered by the Trump ban – a group of newborns whose parents do not have legal permission to be in the United States or who are working, studying or touring here only temporarily.
The controversy is the most important constitutional dispute arising from the President’s sweeping policy of swift arrest and deportation of tens of thousands of non-citizens, although those raids, too, have raised other constitutional questions still awaiting final review by the Supreme Court in other cases – such as the legality of using National Guard troops in U.S. cities.
The President and government lawyers have not tried to get the courts to block Judge LaPlante’s order protecting “birthright citizenship,” aiming their request to the Supreme Court at the core question of whether the citizenship ban is unconstitutional or violates federal laws enacted in 1940 and 1952 that carry out the constitutional clause.
Demonstrating the Court’s willingness to act on this historic controversy, the Justices agreed to hear it within a few days after the initial legal filings were complete. The Administration said that it wanted the Court to rule during the current term. The Court will now get fuller legal briefs and will hold a hearing within the next few months and probably will issue a final decision before summer.
Another sign of the Court’s keen interest in the underlying dispute is that it had been asked by the Trump Administration to review two separate lower court orders against the ban – the one in New Hampshire and one in California – and the Court chose to consider only the New Hampshire case because it did not have a procedural side-issue that might have complicated the review of the California version. And the Court accepted the New Hampshire case even before a lower federal appeals court had a chance to rule on it in the usual process of lower court review.
The clause at issue, added to the Constitution in 1868 by the 14th Amendment, provides that “all persons born in the United States and subject to the jurisdiction thereof are citizens of the United State and of the states wherein they reside.” A federal law passed in 1940 and renewed in 1952 implements that law by repeating the same wording.
The Supreme Court upheld the constitutional clause in a ruling in 1898, in United States v. Won Kim Ark, involving a young man born in San Francisco to Chinese parents then living in the country. At the time, an 1882 federal law barred Chinese immigrants from citizenship. When Won Kim Ark left the country briefly, he was barred from reentry because he was not a citizen. The Supreme Court, by a 6-to-2 vote, ruled that he was a U.S. citizen under the 14th Amendment.
The Trump Administration has not asked the Court to overrule that old precedent, which the Court has never questioned. Instead, government lawyers contend that the Amendment was designed only to clear the way for citizenship for black Americans after slavery had ended in this country. They argue further that the amendment was never intended to guarantee citizenship for every person just because they were born on U.S. soil. That doctrine has deep historic roots, going far back in the history of the English common law.
As part of the Trump Administration’s mass deportation program, it argues that foreign nationals who enter the country legally often do so in order to have children here who become U.S. citizens and thus enable their foreign parents to remain. This claim is what the Administration calls “birth tourism.”
The New Hampshire case was filed on behalf of two newborn babies and a woman, not a citizens, who was pregnant at the time but has since had her baby. The case the Court is reviewing is titled United States v. Barbara. The woman is not using her real name, to protect her privacy and to protect her from retaliation.
The Supreme Court was drawn into the birthright citizenship controversy last year, after several federal judges had issued temporary nationwide orders against the Trump policy. The Court ruled against the use of such “universal” orders, but did not rule at that time on Trump’s power to limit constitutional citizenship rights. In addition, the Court left open an option for judges – if necessary to provide a full remedy to those affected by the ban – to still issue broad orders against enforcement. That is the option that Judge LaPlante and other judges have adopted.
Because of the fundamental importance of the constitutional question at issue, the case has already drawn wide interest from many sides of the dispute. The Trump Administration’s challenge to Judge LaPlante’s order, for example, is supported by 24 states with Republican government leaders. Civil rights and immigrants’ rights groups, as well as a number of states with Democratic government leaders, are supporting Judge LaPlante’s ruling.
Birthright U.S. citizenship has been an important issue in this country since Congress first recognized it in a civil rights law in 1866. That was followed up two years later when the 14th Amendment, including the birthright citizenship clause, was ratified.
President Trump began his challenge to that doctrine on the first day in office last January, after he won election to a new term in the White House. The mass deportation policy, including the attack on birthright citizenship, has been in the courts since the day after Trump first issued his ban. No judge has ruled in the President’s favor.
