Trump asks Supreme Court to step in on birthright citizenship – SCOTUSblog

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The Trump administration on Thursday asked the Supreme Court to allow it to enforce an executive order signed by President Donald Trump ending birthright citizenship – the guarantee of citizenship to virtually anyone born in the United States. In a trio of near-identical filings by Acting Solicitor General Sarah Harris, the administration urged the justices to partially block preliminary injunctions, issued by federal district judges in Seattle, Maryland, and Massachusetts, that bar the government from implementing Trump’s executive order anywhere in the country.

Harris contended that the kind of nationwide (sometimes described as “universal”) injunctions issued in the three cases “transgress constitutional limits on courts’ powers” and “compromise the Executive Branch’s ability to carry out its functions.” “This Court,” she wrote, “should declare that enough is enough before district courts’ burgeoning reliance on universal injunctions becomes further entrenched.”

Harris instead urged the justices to strictly limit the district judges’ orders to block the enforcement of the order only to a much smaller group: the individual plaintiffs in the three cases, the specific members of the groups challenging the order who are identified in a complaint, and – if the court agrees that states have a legal right to challenge the order – residents of those states. At the very least, she added, the federal government should be able to take “internal steps to implement” the executive order while the litigation continues, even if it cannot enforce it.

Birthright citizenship was explicitly added to the Constitution in 1868 when the 14th Amendment was adopted following the Civil War. That amendment provides that “[a]ll 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.” The United States is one of roughly 30 countries, including neighboring Canada and Mexico, that offer automatic citizenship to everyone born there.

Under Trump’s executive order, which was originally slated to go into effect 30 days after he signed it, children born in the United States are not automatically entitled to citizenship if their parents are in this country either illegally or temporarily.

In a hearing in late January, Senior U.S. District Judge John Coughenour of the Western District of Washington, a Ronald Reagan appointee, called the executive order “blatantly unconstitutional” and temporarily barred the government from implementing the order for 14 days. At a hearing on Feb. 6, Coughenour extended that ban, calling birthright citizenship a “fundamental constitutional right.”

A federal appeals court in San Francisco turned down Trump’s plea to put Coughenour’s injunction on hold except with regard to the individual plaintiffs while its appeal moves forward.

Judge Danielle Forrest, a Trump appointee, explained in a six-page concurring opinion that although the case had properly been fast-tracked, the Trump administration had not shown that this was the kind of “emergency that requires an immediate answer.” It was not enough, Forrest indicated, that Coughenour’s injunction temporarily prevents the government from implementing the executive order. “It is routine,” she wrote, “for both executive and legislative policies to be challenged in court, particularly where a new policy is a significant shift from prior understanding and practice.”

Echoing some of the criticism of the Supreme Court’s use of its emergency docket, Forrest also suggested that the highly expedited schedule cautioned against granting the government’s request right now. She contended that “quick decision-making risks eroding public confidence. Judges are charged to reach their decisions apart from ideology or political preference. When we decide issues of significant public importance and political controversy hours after we finish reading the final brief, we should not be surprised if the public questions whether we are politicians in disguise.”

In Maryland, U.S. District Judge Deborah Boardman issued a separate order on Feb. 5 that prohibited the Trump administration from enforcing the Jan. 20 executive order while a lawsuit brought there by immigrants’ rights groups and several pregnant women moves forward. Boardman, a Biden appointee, observed at the end of a hearing that “no court in the country has ever endorsed the president’s interpretation. This court will not be the first.”

A divided panel of the U.S. Court of Appeals for the 4th Circuit rejected the government’s request to partly block Boardman’s ruling. Judge Paul Niemeyer dissented from that decision, calling the Trump administration’s plea a “modest motion.”

And in Massachusetts, U.S. District Judge Leo Sorokin issued a nationwide injunction in a case brought by a group of 18 states, the District of Columbia, and San Francisco. Sorokin reasoned that a more limited injunction, applying only to the states challenging the executive order, would be “inadequate” because of the prospect that pregnant women living in one state could cross state lines to give birth in another. The U.S. Court of Appeals for the 1st Circuit declined to partially pause Sorokin’s ruling.

In three largely identical filings submitted on Thursday, Harris urged the justices to “correct the district court’s massive remedial foul.” During the last few years, several justices – including Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh – have criticized nationwide or universal injunctions and urged their colleagues to weigh in on their legality.

In January, the Biden administration asked the justices to weigh in on the propriety of nationwide injunctions as part of an emergency appeal seeking permission to enforce a federal anti-money-laundering law while the government’s appeal moves forward. The justices agreed to block a ruling by a federal district judge that had barred the government from enforcing the law throughout the United States, but they did not address the question of nationwide injunctions.

In that case, Gorsuch wrote a separate opinion in which he indicated that he would have resolved the injunction question “definitively.”

Harris also contended that the states challenging the executive order do not have a legal right, known as standing, to bring their lawsuits. The states, she argued, “simply cannot assert citizenship rights on behalf of individuals,” and they themselves are not harmed by the order, which “does not require” them “to do or refrain from anything, much less” expose them to any punishments.

Harris characterized the district courts’ orders in the three birthright citizenship cases as “part of a broader trend.” Since Trump’s inauguration on Jan. 20, she complained, “district courts have repeatedly issued orders that superintend the internal operations of the Executive Branch by prohibiting the formulation of new policies.” But “[y]ears of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere. The sooner universal injunctions are ‘eliminated root and branch,’” she concluded, “the better.”

This article was originally published at Howe on the Court.