birthright citizenship

WASHINGTON — Supreme Court justices like to talk about the Constitution’s separation of powers and how it limits the exercise of official authority.

But Chief Justice John G. Roberts and his conservative colleagues have given no sign so far they will check President Trump’s one-man governance by executive order.

To the contrary, the conservative justices have repeatedly ruled for Trump on fast-track appeals and overturned federal judges who said the president had exceeded his authority.

The court’s new term opens on Monday, and the justices will begin hearing arguments.

But those regularly scheduled cases have been overshadowed by Trump’s relentless drive to remake the government, to punish his political enemies, including universities, law firms, TV networks and prominent Democrats, and to send troops to patrol U.S. cities.

The overriding question has become: Are there any legal limits on the president’s power? The Supreme Court itself has raised the doubts.

A year ago, as Trump ran to reclaim the White House, the justices blocked a felony criminal indictment against him related to his role in the Jan. 6, 2021, mob attack on the Capitol as Congress met to certify Trump’s defeat in the 2020 election, for which Trump was impeached.

Led by Roberts, the court ruled for Trump and declared for the first time that presidents were immune from being prosecuted for their official actions in the White House.

Not surprisingly, Trump saw this as a “BIG WIN” and proof there is no legal check on his power.

This year, Trump’s lawyers have confidently gone to Supreme Court with emergency appeals when lower-court judges have stood in their way. With few exceptions, they have won, often over dissents from the court’s three liberal Democrats.

Many court scholars say they are disappointed but not surprised by the court’s response so far to Trump’s aggressive use of executive power.

The Supreme Court “has been a rubber stamp approving Trump’s actions,” said UC Berkeley law Dean Erwin Chemerinsky. “I hope very much that the court will be a check on Trump. There isn’t any other. But so far, it has not played that role.”

Roberts “had been seen as a Republican but not a Trump Republican. But he doesn’t seem interested or willing to put any limits on him,” said UCLA law professor Adam Winkler. “Maybe they think they’re saving their credibility for when it really counts.”

Acting on his own, Trump moved quickly to reshape the federal government. He ordered cuts in spending and staffing at federal agencies and fired inspectors general and officials of independent agencies who had fixed terms set by Congress. He stepped up arrests and deportations of immigrants who are here illegally.

But the court’s decisions on those fronts are in keeping with the long-standing views of the conservatives on the bench.

Long before Trump ran for office, Roberts had argued that the Constitution gives the president broad executive authority to control federal agencies, including the power to fire officials who disagree with him.

The court’s conservatives also think the president has the authority to enforce — or not enforce — immigration laws.

That’s also why many legal experts think the year ahead will provide a better test of the Supreme Court and Trump’s challenge to the constitutional order.

“Overall, my reaction is that it’s too soon to tell,” said William Baude, a University of Chicago law professor and a former clerk for Roberts. “In the next year, we will likely see decisions about tariffs, birthright citizenship, alien enemies and perhaps more, and we’ll know a lot more.”

In early September, Trump administration lawyers rushed the tariffs case to the Supreme Court because they believed it was better to lose sooner rather than later.

Treasury Secretary Scott Bessent said the government could face up to a $1-trillion problem if the court delayed a decision until next summer and then ruled the tariffs were illegal.

“Unwinding them could cause significant disruption,” he told the court.

The Constitution says tariffs, taxes and raising revenue are matters for Congress to decide. Through most of American history, tariffs funded much of the federal government. That began to change after 1913 when the 16th Amendment was adopted to authorize “taxes on incomes.”

Trump has said he would like to return to an earlier era when import taxes funded the government.

“I always say ‘tariffs’ is the most beautiful word to me in the dictionary,” he said at a rally after his inauguration in January. “Because tariffs are going to make us rich as hell. It’s going to bring our country’s businesses back that left us.”

While he could have gone to the Republican-controlled Congress to get approval, he imposed several rounds of large and worldwide tariffs acting on his own.

Several small businesses sued and described the tariffs as “the largest peacetime tax increase in American history.”

As for legal justification, the president’s lawyers pointed to the International Emergency Economic Powers Act of 1977. It authorizes the president to “deal with any unusual or extraordinary threat … to the national security, foreign policy or economy of the United States.”

The law did not mention tariffs, taxes or duties but said the president could “regulate” the “importation” of products.

Trump administration lawyers argue that the “power to ‘regulate importation’ plainly encompasses the power to impose tariffs.” They also say the court should defer to the president because tariffs involve foreign affairs and national security.

They said the president invoked the tariffs not to raise revenue but to “rectify America’s country-killing trade deficits and to stem the flood of fentanyl and other lethal drugs across our borders.”

In response to lawsuits from small businesses and several states, judges who handle international trade cases ruled the tariffs were illegal. However, they agreed to keep them in place to allow for appeals.

Their opinion relied in part on recent Supreme Court’s decisions which struck down potentially far-reaching regulations from Democratic presidents on climate change, student loan debt and COVID-19 vaccine requirements. In each of the decisions, Roberts said Congress had not clearly authorized the disputed regulations.

Citing that principle, the federal circuit court said it “seems unlikely that Congress intended to … grant the president unlimited authority to impose tariffs.”

Trump said that decision, if allowed to stand, “could literally destroy the United States of America.” The court agreed to hear arguments in the tariffs case on Nov. 5.

A victory for Trump would be “viewed as a dramatic expansion of presidential power,” said Washington attorney Stephanie Connor, who works on tariff cases. Trump and future presidents could sidestep Congress to impose tariffs simply by citing an emergency, she said.

But the decision itself may have a limited impact because the administration has announced new tariffs last week that were based on other national security laws.

Last month, Trump administration lawyers asked the Supreme Court to rule during the upcoming term on the birthright citizenship promised by the 14th Amendment of 1868.

They did not seek a fast-track ruling, however. Instead, they said the court should grant review and hear arguments on the regular schedule early next year. If so, a decision would be handed down by late June.

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 in the past, both Congress and the Supreme Court have agreed that rule applies broadly to all children who are born here, except if their parents are foreign ambassadors or diplomats who are not subject to U.S. laws.

But Trump Solicitor Gen. D. John Sauer said that interpretation is mistaken. He said the post-Civil War amendment was “adopted to grant citizenship to freed slaves and their children, not to the children of illegal aliens, birth tourists and temporary visitors.”

Judges in three regions of the country have rejected Trump’s limits on the citizenship rule and blocked it from taking effect nationwide while the litigation continues.

WASHINGTON — The Trump administration is asking the Supreme Court to uphold President Trump’s birthright citizenship order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens.

The appeal, shared with the Associated Press on Saturday, sets in motion a process at the high court that could lead to a definitive ruling from the justices on whether the citizenship restrictions are constitutional.

Lower-court judges have blocked them from taking effect anywhere. The Republican administration is not asking the court to let the restrictions take effect before it rules.

The Justice Department’s petition has been shared with lawyers for parties challenging the order, but is not yet docketed at the Supreme Court.

Any decision on whether to take up the case probably is months away and arguments probably would not take place until the late winter or early spring.

“The lower court’s decisions invalidated a policy of prime importance to the president and his administration in a manner that undermines our border security,” Solicitor Gen. D. John Sauer wrote. “Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people.”

Cody Wofsy, an American Civil Liberties Union lawyer who represents children who would be affected by Trump’s restrictions, said the administration’s plan is plainly unconstitutional.

“This executive order is illegal, full stop, and no amount of maneuvering from the administration is going to change that. We will continue to ensure that no baby’s citizenship is ever stripped away by this cruel and senseless order,” Wofsy said in an email.

Trump signed an executive order on the first day of his second term in the White House that would upend more than 125 years of understanding that the Constitution’s 14th Amendment confers citizenship on everyone born on American soil, with narrow exceptions for the children of foreign diplomats and those born to a foreign occupying force.

In a series of decisions, lower courts have struck down the executive order as unconstitutional, or likely so, even after a Supreme Court ruling in late June that limited judges’ use of nationwide injunctions.

While the Supreme Court curbed the use of nationwide injunctions, it did not rule out other court orders that could have nationwide effects, including in class-action lawsuits and those brought by states. The justices did not decide at that time whether the underlying citizenship order is constitutional.

But every lower court that has looked at the issue has concluded that Trump’s order violates or probably violates the 14th Amendment, which was intended to ensure that Black people, including formerly enslaved people, had citizenship.

The administration is appealing two cases.

The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in July that a group of states that sued over the order needed a nationwide injunction to prevent the problems that would be caused by birthright citizenship being in effect in some states and not others.

Also in July, a federal judge in New Hampshire blocked the citizenship order in a class-action lawsuit including all children who would be affected.

Birthright citizenship automatically makes anyone born in the United States an American citizen, including children born to mothers who are in the country illegally, under long-standing rules. The right was enshrined soon after the Civil War in the first sentence of the 14th Amendment.

The administration has asserted that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship.

Sherman and Whitehurst write for the Associated Press.

WASHINGTON — The legal battle over President Trump’s move to end birthright citizenship is far from over despite his major Supreme Court victory Friday limiting nationwide injunctions.

Immigrant advocates are vowing to fight to ensure birthright citizenship remains the law as the Republican president tries to do away with a more than century-old constitutional precedent.

The high court’s ruling sends cases challenging the president’s birthright citizenship executive order back to the lower courts. But the ultimate fate of Trump’s policy remains uncertain.

Here’s what to know about birthright citizenship, the Supreme Court’s ruling and what happens next.

What does birthright citizenship mean?

Birthright citizenship makes anyone born in the United States an American citizen, including children born to mothers in the country illegally.

The practice goes back to soon after the Civil War, when Congress ratified the 14th Amendment of the Constitution, in part to ensure that Black people, including formerly enslaved Americans, had citizenship.

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” the amendment states.

Thirty years later, Wong Kim Ark, a man born in the U.S. to Chinese parents, was refused reentry into the U.S. after traveling overseas. His suit led to the Supreme Court explicitly ruling that the amendment gives citizenship to anyone born in the United States, no matter their parents’ legal status.

It has been seen since then as an intrinsic part of U.S. law, with only a few exceptions, such as for children born in the U.S. to foreign diplomats.

Trump’s longtime goal

Trump signed an executive order upon assuming office in January that seeks to deny citizenship to children born to parents who are living in the U.S. illegally or temporarily. The order is part of the president’s hard-line anti-immigration agenda, and he has called birthright citizenship a “magnet for illegal immigration.”

Trump and his supporters focus on one phrase in the amendment — “subject to the jurisdiction thereof” — which they contend means the U.S. can deny citizenship to babies born to women in the country illegally.

A series of federal judges have said that’s not true and issued nationwide injunctions stopping his order from taking effect.

“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order,” U.S. District Judge John Coughenour said at a hearing this year in his Seattle courtroom.

In Greenbelt, Md., a Washington suburb, U.S. District Judge Deborah Boardman wrote that “the Supreme Court has resoundingly rejected and no court in the country has ever endorsed” Trump’s interpretation of birthright citizenship.

Is Trump’s order constitutional?

The high court’s ruling was a major victory for the Trump administration in that it limited an individual judge’s authority in granting nationwide injunctions. The administration hailed the ruling as a monumental check on the powers of individual district court judges, whom Trump supporters have argued are usurping the president’s authority with rulings blocking his priorities on immigration and other matters.

But the Supreme Court did not address the merits of Trump’s bid to enforce his birthright citizenship executive order.

“The Trump administration made a strategic decision, which I think quite clearly paid off, that they were going to challenge not the judges’ decisions on the merits, but on the scope of relief,” said Jessica Levinson, a Loyola Law School professor.

Atty. Gen. Pam Bondi told reporters at the White House that the administration is “very confident” that the high court will ultimately side with the administration on the merits of the case.

Uncertainty ahead

The justices kicked the cases challenging the birthright citizenship policy back down to the lower courts, where judges will have to decide how to tailor their orders to comply with the new ruling. The executive order remains blocked for at least 30 days, giving lower courts and the parties time to sort out the next steps.

The Supreme Court’s ruling leaves open the possibility that groups challenging the policy could still get nationwide relief through class-action lawsuits and seek certification as a nationwide class. Within hours after the ruling, two class-action suits had been filed in Maryland and New Hampshire seeking to block Trump’s order.

But obtaining nationwide relief through a class action is difficult as courts have put up hurdles to doing so over the years, said Suzette Malveaux, a Washington and Lee University law school professor.

“It’s not the case that a class action is a sort of easy, breezy way of getting around this problem of not having nationwide relief,” said Malveaux, who had urged the high court not to eliminate the nationwide injunctions.

Justice Sonia Sotomayor, who penned the court’s dissenting opinion, urged the lower courts to “act swiftly on such requests for relief and to adjudicate the cases as quickly as they can so as to enable this Court’s prompt review” in cases “challenging policies as blatantly unlawful and harmful as the Citizenship Order.”

Opponents of Trump’s order warned there would be a patchwork of policies across the states, leading to chaos and confusion without nationwide relief.

“Birthright citizenship has been settled constitutional law for more than a century,” said Krish O’Mara Vignarajah, president and chief executive of Global Refuge, a nonprofit that supports refugees and migrants. “By denying lower courts the ability to enforce that right uniformly, the Court has invited chaos, inequality, and fear.”

Sullivan and Richer write for the Associated Press. AP writers Mark Sherman and Lindsay Whitehurst in Washington and Mike Catalini in Trenton, N.J., contributed to this report.

WASHINGTON — The Supreme Court has limited the power of federal district judges to hand down orders that apply nationwide.

By 6-3 vote, the justices said Friday that judges may not issue orders that apply to people beyond those who sued.

“Federal courts do not exercise general oversight of the Executive Branch,” said Justice Amy Coney Barrett. And while judges can give full relief to plaintiffs, including groups of people, their injunctions should not be “broader than necessary” to shield those people.

The court’s three liberals dissented.

In her dissent, Justice Sonia Sotomayor said the Trump administration is trying to defend a blatantly unconstitutional order repealing birthright citizenship.

“The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along,” she said.

The procedural ruling is a victory for President Trump and a setback for advocates who seek to block his executive orders.

It prevents a single district judge in Boston or San Francisco from blocking Trump’s policies from taking effect nationwide.

However, it does not decide on the constitutionality of Trump’s plan to limit birthright citizenship.

Three federal district judges—in Maryland, Massachusetts and Washington—issued nationwide orders declaring Trump’s plan unconstitutional.

The 14th Amendment, adopted in 1868, 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.”

On his first day in office, Trump issued an executive order disagreeing with the traditional understanding and asserting the Constitution does not “extend citizenship universally to everyone born within the United States.”

He said it would be U.S. policy to not recognize citizenship for newborns if the child’s mother or father was “not a United States citizen or lawful permanent resident at the time of said person’s birth.”

But in quick succession, judges declared Trump’s order may not be enforced across the nation. They said his proposed restrictions violated the federal law and Supreme Court precedent as well as the plain words of the 14th Amendment.

Rather than challenge those rulings directly, Trump’s lawyers sent an emergency appeal to the Supreme Court with “a modest request.”

Rather than rule on birthright citizenship, they urged the justices to rein in the practice of district judges handing down nationwide orders.

They have “reached epidemic proportions since the start of the current administration,” they said.

The Trump administration’s executive order to limit birthright citizenship is a serious challenge to the 14th Amendment, which enshrined a radical principle of our democratic experiment: that anyone born here is an American. But the order will most affect average Americans — whose own citizenship, until this point, has been presumed and assured — rather than the intended target, illegal immigrants. The irony is hiding in plain sight.

Contrary to conventional wisdom, birthright citizenship is not entirely settled U.S. law. The executive order states, “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States” and it is very narrowly drafted to exploit this uncertainty by rejecting citizenship to children born in the United States to parents who are not citizens or legal permanent residents. Federal law and practice has recognized American citizenship to anyone born here since the Supreme Court’s landmark 1898 decision in U.S. vs. Wong Kim Ark. But that case did not specifically protect the birthright of children born in the United States to noncitizen, nonresident aliens.

This is a massive blind spot that states are sleep-walking into. They are depending on weak legal precedent, federal code, policy and hair-splitting over the meaning of “subject of the jurisdiction thereto.” In a brief, the states argue that the “understanding of birthright citizenship has permeated executive agency guidance for decades — and no prior administration has deviated from it.” But that won’t matter to this Supreme Court, which has demonstrated a certain glee in dismantling precedent. There is a clear risk that the justices could fundamentally restrict the definition of birthright citizenship and overturn the 1898 ruling.

The executive order directs the federal government not to issue or accept documents recognizing U.S. citizenship for children born to parents unlawfully present here — but also to parents who are here legally but temporarily. This second group is a potentially vast population (the State Department issued 14.2 million nonimmigrant visas in fiscal year 2024) that includes students, artists, models, executives, investors, laborers, engineers, academics, tourists, temporary protected status groups, ship and plane crews, engineers, asylees, refugees and humanitarian parolees.

A limited change targeting a specific population — nonresident aliens — will have huge effects on those who will least expect it: American citizen parents giving birth to children in the United States. Until this point, a valid, state-issued birth certificate established prima facie evidence of U.S. citizenship to every child born in the country. That would no longer be the case if citizenship depended on verifying certain facts about every U.S.-born child’s parents. With that presumption removed by executive order, citizenship must be adjudicated by a federal official.

I know what that adjudication involves. I was a U.S. consular officer in Latin America, and both of my children were born overseas to married U.S. citizen parents carrying diplomatic passports. But because they did not have the presumption of citizenship conferred by an American birth certificate, we had to go to the U.S. Consulate for adjudication of transmission to demonstrate to the U.S. government that our children were American citizens.

This was document-intensive and time-consuming. Each time, we filled out forms. We photographed the baby in triplicate. We swore an oath before the consular officer. We brandished our passports. We presented the baby to the consular officer. We surrendered the local birth certificate. We demonstrated our hospital stay. Only then did we receive a Consular Report of Birth Abroad and only with that report could we apply for U.S. passports for our children. Without the report or a passport, our children could neither leave the country of their birth nor enter the United States.

That is an evidentiary and bureaucratic burden that all natural-born American citizens have until now not had to bear. The Trump administration’s change, if allowed by courts, will require those same parents to prove their own citizenship to the federal government. Good luck, because showing your birth certificate wouldn’t be sufficient in the new regime: The government would require proof not only that you were born in the U.S., but also that at least one of your parents was a U.S. citizen at the time. (Supreme Court Justice Brett Kavanaugh expressed skepticism over this “practical question” during oral arguments last week.)

Americans several generations removed from their immigrant forebears — even those whose ancestors came to North America 10,000 years ago — will suddenly be treated like the unlawfully present parents they thought this rule was designed to exclude.

This rule will lead to chaos, even danger. The federal bureaucracy will have to expand drastically to adjudicate the 3.5 million children born here every year. (For comparison, 1 million people are issued permanent residency status each year and 800,000 become naturalized citizens. This population is typically much better documented than a newborn.) Fearing immigration enforcement, undocumented parents will avoid hospitals for childbirth, dramatically escalating medical risk for mother and baby. Because hospitals also generate birth certificates — as Justice Sonia Sotomayor also noted last week — those babies will form a large, new and entirely avoidable population of stateless children.

It is a truism in some communities that ancestors and family members came to this country legally. But the administration is prepared to dismantle the presumption of citizenship that has been a literal birthright for 125 years. U.S. citizenship is on the brink of becoming a privilege rather than a right, bestowed on those who can afford protracted bureaucratic struggles. Most of the burden will fall on those who least expected it: American parents themselves.

James Thomas Snyder is a former U.S. consular officer and NATO International Staff member.

WASHINGTON — The Supreme Court gave a skeptical hearing Thursday to a lawyer for President Trump who was appealing rulings that blocked his plan to deny citizenship to newborns whose parents were in this country illegally or temporarily.

None of the justices spoke in favor of Trump’s plan to restrict birthright citizenship, and several were openly skeptical.

“Every court is ruling against you,” said Justice Elena Kagan. “There’s not going to be a lot of disagreement on this.”

If his plan were to take effect, “thousands of children will be born and rendered stateless,” said Justice Sonia Sotomayor.

But Thursday’s hearing was devoted to a procedural question raised by the administration: Can a single federal judge issue a nationwide order to block the president’s plan?

Shortly after Trump issued his executive order to limit birthright citizenship, federal judges in Maryland, Massachusetts and Washington state declared it unconstitutional and blocked its enforcement nationwide.

In response, Trump’s lawyers asked the court to rein in the “epidemic” of nationwide orders handed by district judges.

It’s an issue that has divided the court and bedeviled both Democratic and Republican administrations.

Trump’s lawyers argued that on procedural grounds the judges overstepped their authority. But it is also procedurally unusual for a president to try to revise the Constitution through an executive order.

Thursday’s hearing did not appear to yield a consensus on what to do.

Justice Brett M. Kavanaugh said the plaintiffs should be required to bring a class-action claim if they want to win a broad ruling. But others said that would lead to delays and not solve problem.

Justice Neil M. Gorsuch said he was looking for a way to decide quickly. “How we get to the merits expeditiously?” he asked.

One possibility was to have the court ask for further briefing and perhaps a second hearing to decide the fundamental question: Can Trump acting on his own revise the long-standing interpretation of the 14th Amendment?

Shortly after the Civil War, the Reconstruction Congress wrote the 14th Amendment, which begins with the words: “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.”

Prior to that time, Americans were citizens of their states. Moreover, the Supreme Court in the infamous Dred Scott decision said Black people were not citizens of their states and could not become citizens even if they were living in a free state.

The amended Constitution established U.S. citizenship as a birthright. The only persons not “subject to the jurisdiction” of the laws of the United States were foreign diplomats and their families and, in the 19th century, Indians who were “not taxed” and were treated as citizens of their tribal nations.

However, Congress changed that rule in 1924 and extended birthright citizenship to Native Americans.

Since 1898, the Supreme Court has agreed that birthright citizenship extended to the native-born children of foreign migrants living in this country. The court said then “the fundamental rule of citizenship by birth, notwithstanding the alienage of parents” had been established by law.

The decision affirmed the citizenship of Wong Kim Ark, who was born in San Francisco in 1873 to Chinese parents who were living and working there, but who were not U.S. citizens.

But several conservative law professors have disputed the notion that the phrase “subject to the jurisdiction” of the United States means simply that people living here are subject to the laws here.

Instead, they say it refers more narrowly to people who owe their undivided allegiance to this country. If so, they contend it does not extend broadly to illegal immigrants or to students and tourists who are here temporarily.

On Jan. 20, Trump issued an executive order proclaiming the 14th Amendment does not “extend citizenship universally to everyone born within the United States.” He said it would be U.S. policy to not recognize citizenship for newborns if the child’s mother or father was “not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Immigrants rights groups sued on behalf of several pregnant women, and they were joined by 22 states and several cities.

Judges wasted no time in declaring Trump’s order unconstitutional. They said his proposed restrictions violated the federal law and Supreme Court precedent as well as the plain words of the 14th Amendment.

In mid-March, Trump’s lawyers sent an emergency appeal to the Supreme Court with “a modest request.” Rather than decide the “important constitutional questions” involving birthright citizenship, they urged the justices to rein in the practice of district judges handing down nationwide orders.

They have “reached epidemic proportions since the start of the current administration,” they said.

A month later, and without further explanation, the court agreed to hear arguments based on that request.

The justices are likely to hand down a decision in Trump vs. CASA, but it may not come until late June.