Trump's birthright citizenship case reaches Supreme Court

The Trump administration asked the Supreme Court on Thursday to step in and allow the president’s attempt to limit birthright citizenship to take effect, at least in some cases, while the court battles over his executive order rage on.

Acting Solicitor General Sarah M. Harris isn’t asking the justices to rule on the legality of President Trump’s action at this point, but is asking the high court to narrow the blockades erected by lower courts.

Those “universal” injunctions, where judges order a nationwide halt to the president’s policies, have become increasingly controversial in recent years — and have turned into a major hurdle for Mr. Trump early in his second term.

Three courts have issued universal injunctions against Mr. Trump’s birthright citizenship policy, and Ms. Harris asked the justices to trim them back.

“The district courts should have limited their preliminary injunctions to the parties properly before them,” she said.

Mr. Trump, in one of his earliest executive orders, said he was changing the longstanding practice of awarding automatic citizenship to almost everyone born on U.S. soil. He said babies born to illegal immigrant parents or parents who are only here under temporary visas should not be given automatic citizenship.

Opponents sued, arguing the 14th Amendment to the Constitution precludes Mr. Trump’s action.

The key part of the amendment says: “All 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.”

Mr. Trump said babies of illegal immigrants and visitors aren’t “subject to the jurisdiction.”

Some legal scholars argue Mr. Trump’s position is correct but that it would take an act of Congress, not a presidential order, to establish that policy.

So far, the courts have largely sided with the president’s opponents and have issued wide-ranging injunctions blocking him from carrying out his plans anywhere.

U.S. District Judge John C. Coughenour, the first to block the birthright citizenship order, said it would be “perverse and bizarre” to have rules for automatic citizenship for babies born in one state but not another.

“For example, babies born in other states would travel to the plaintiff states. Once they do, those persons would be eligible for services and support that, without nationwide relief, need be funded by the plaintiff states, without federal support (even though that same funding would continue for babies born within the plaintiff states to parents of comparable immigration status),” he wrote.

Opponents of universal injunctions say they give inordinate power to a single federal judge to stop a president or upend a law passed by Congress. It also leads to judge shopping, where plaintiffs search for a court known for leaning one way or another politically.

That’s one reason why the challenges to Mr. Trump have been largely filed in federal courts in states like Maryland, Massachusetts, Washington and northern California, which have left-leaning benches.

Under President Biden, challengers would rush to Texas and Florida, where the federal courts are seen as more conservative.

Backers of universal injunctions argue there are some issues where it makes no sense to limit a ruling. Environmental and immigration cases are often held up as prime examples, because of the way that pollution, and migrants, can cross boundaries so easily.

Presidents of both parties have been hindered by universal injunctions. President Obama’s attempt to expand his DACA policy to millions more illegal immigrants was blocked by a single federal judge in Texas.

Mr. Trump then saw much of his first-term agenda held up by universal injunctions, with immigration a particular battlefield.

The trend continued under Mr. Biden on everything from immigration to student loan forgiveness to environmental policies.

Some members of the Supreme Court have been itching for a fight.

In a decision on Mr. Trump’s first-term travel ban, Justice Clarence Thomas wrote a separate opinion to make clear he was getting fed up with universal injunctions. Two years later, he was joined by Justice Neil M. Gorsuch, who said they were leading to “gamesmanship and chaos.”

He said the judicial system was set up so cases would wind their way carefully through lower courts, only reaching the justices when there were thoughtful competing views. Universal injunctions upend that.

“By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions,” he wrote.