Rev. Patrick Mahoney, director of the Christian Defense Coalition, joined demonstrators outside the U.S. Supreme Court on Thursday, May 15, 2025, to protest the Trump administration's effort to strip birthright citizenship from the Constitution. (Photo by Ashley Murray/States Newsroom)

WASHINGTON — A federal judge in New Hampshire Thursday issued a preliminary injunction against President Donald Trump’s executive order that would rewrite the constitutional right to birthright citizenship, and granted a class certification to infants who would be affected by the order.

The ruling from U.S. District Judge Joseph Laplante came after the Supreme Court last month limited lower courts’ ability to grant nationwide injunctions. Multiple courts had blocked the president’s executive order ending birthright citizenship, which is granted under the 14th Amendment to any infant born on U.S. soil. There is an exception for children born to foreign diplomats. 

Laplante will stay his ruling for seven days to give the Trump administration time to appeal, according to his written order. Laplante was nominated by former President George W. Bush.

The high court in June deemed that lower courts should seek a narrower way to issue orders with wide effect, such as a class action suit. Under the ruling, the Trump administration’s executive order could take effect by July 27 in the 28 states that did not initially sue.

After the Supreme Court ruling, the American Civil Liberties Union filed the suit on behalf of immigrants whose babies would be affected by the order.

However, Laplante narrowed his injunction to focus on the infants as the plaintiffs rather than the parents.

“This ruling is a huge victory and will help protect the citizenship of all children born in the United States, as the Constitution intended,” said Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case. “We are fighting to ensure President Trump doesn’t trample on the citizenship rights of one single child.” 

A child celebrates Independence Day | Getty Images Creative

Your citizenship, like mine, is an accident of birth. 

You were born here. So was I. The rub is I was born to immigrants who were not yet legal residents.

That makes me a birthright citizen under the 14th Amendment. That also allegedly makes me an “anchor baby.” I’m referring to the assertion that immigrants have come to the U.S. and have  babies only so they can gain  legal residency later.

Real life is more complicated than that for millions of immigrants who come to the U.S. for a variety of reasons — whether they are fleeing violence in their home countries or simply seeking a better life, as generations in our nation of immigrants have done. 

Does the immigration status of my parents really matter? How long ago  did your immigrant ancestors first step foot here? How many generations does it take for citizenship to be “deserved?”

The Constitution’s 14th Amendment says unequivocally that I’m as deserving as the accident of your birth makes you. If you are born here, you’re a U.S. citizen. Me, too. That’s birthright citizenship.

On Jan. 20, newly inaugurated President Donald Trump issued an executive order ending automatic citizenship for babies born to parents who don’t have lawful status in the U.S.  

In a recent 6-3 ruling, the U.S. Supreme Court did not address  the constitutionality of Trump’s order. Instead, it ruled that lower courts have no power to issue nationwide injunctions,  voiding  district courts’  rulings that Trump may not deport people who have been U.S. citizens all their lives.  

After the ruling, some groups began the slow process to challenge the law in a nationwide class action lawsuit. But until the Court decides otherwise, the fundamental question whether someone is considered a U.S. citizen will have different answers in different states. 

Meanwhile, raids on immigrant communities continue.

The Trump administration is clearly emboldened. The Supreme Court’s ruling allows the ban on birthright citizenship to take effect in those 28 states that didn’t challenge the president’s initial executive order. And the administration is counting on the high court to see it his way on the constitutional question eventually.

At this point, I lack the confidence to say it won’t.

I understand the argument that  children born to U.S. citizens are more deserving than I am. “But my ancestors emigrated here legally,” say more “deserving” citizens. Never mind that the barriers to coming to this country legally have moved up and down. Today, even people with demonstrable asylum claims are being shut out.

Back in the day, if you showed up to these shores, you simply got in. It wasn’t until 1924 that the U.S. started enforcing quotas for national origin. Aside from immigrants from Southern and Eastern Europe (deemed then as too foreign, i.e. not white enough), these quotas favored other white immigrants. And it specifically targeted Asians for exclusion.

This preference for white immigrants continues. White immigrants from, say, Canada and Ireland, don’t seem to be affected by this attempted purge.

So let’s be honest. Many of your immigrant ancestors were legal simply by default.

Other people will argue that ICE is targeting immigrants  who have committed violent crimes. A couple of big problems: according to the libertarian CATO Institute, 65% of those taken by ICE have no criminal record and 93% have not committed a violent crime. 

As a group, immigrants are a safer group than U.S.-born citizens. They commit fewer crimes.

The issue is not criminality. It’s race. All across the country,  Latinos are being detained because of the color of their skin.

Some folks insist that the 14th Amendment dealt only with the children of slaves freed after the Civil War. 

Here’s what the amendment says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof (my emphasis), are citizens of the United States and of the State wherein they reside.” 

Clearly, even those here without documents are subject to U.S. and state laws. That puts them under U.S. jurisdiction. The courts have confirmed birthright citizenship as early as the late 19th Century (United States v. Wong Kim Ark.).

Is military service an indication of deserving citizenship?

Immigrants and their children are populations the military covets for recruitment. About 5% of active-duty personnel are children of immigrants and 12%  of living veterans are immigrants or the children of immigrants.

Meanwhile, there is a shrinking pool of Americans able to serve, owing to their own criminality, fitness and, importantly, willingness.

So, maybe this ire for birthright citizens like me is about how much of a drain we are on government services and the economy.

But, bucking a trend for other Americans, the children of immigrants often surpass the economic success of their parents. That’s been true in my family and virtually everyone else with my background I’ve encountered.

So, who deserves to be a citizen?

I contend that a chief quality of those who  deserve citizenship is that they don’t take their citizenship for granted. They know their parents sacrificed much to make it happen. We are proud Americans. We belong here. And we deserve to stay.

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The U.S. Supreme Court, as seen on Oct. 9, 2024. (Photo by Jane Norman/States Newsroom)

WASHINGTON — The U.S. Supreme Court Friday in a major decision reined in nationwide injunctions by some lower courts that had blocked President Donald Trump’s executive order barring birthright citizenship.

The high court declined to decide the constitutionality of birthright citizenship itself. But the justices said the Trump executive order rewriting the constitutional right to birthright citizenship could go into effect within 30 days after Friday’s ruling in the 28 states that did not initially sue.

The Supreme Court’s 6-3 decision thus raises the prospect that a child born in some states would be regarded legally as a U.S. citizen but not in others until the overall question of constitutionality is settled, unless there is further legal action.

The sweeping ruling also likely could hamper other legal challenges against Trump administration actions in which nationwide injunctions are sought. Democratic attorneys general in the states have been successful in obtaining injunctions in the months since Trump was elected.

“GIANT WIN in the United States Supreme Court!” Trump wrote on social media shortly after the ruling.

Speaking at the White House later, Trump said his administration will move forward with several executive orders that have faced nationwide injunctions, such as suspending refugee resettlement and revoking federal funds from “sanctuary” states and localities.

“Thanks to this decision, we can now promptly file to proceed with these numerous policies and those that have been wrongly enjoined on a nationwide basis, including birthright citizenship,” Trump said.

Liberals on the high court issued a strong dissent. “No right is safe in the new legal regime the Court creates,” wrote Justice Sonia Sotomayor. “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship.”

Joining the dissent were Justices Elena Kagan and Ketanji Brown Jackson.

Barrett writes ruling

In the ruling, the conservative justices found that nationwide “injunctions likely exceed the equitable authority that Congress has given to federal courts.”

“The Court grants the Government’s applications for a partial stay of the injunctions entered below, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue,” according to the ruling, written by Justice Amy Coney Barrett and joined by Chief Justice John Roberts and Justices Brett Kavanaugh, Clarence Thomas, Samuel Alito and Neil Gorsuch.

While the dispute before the court related to Trump’s executive order to rewrite the constitutional right to birthright citizenship, the Trump administration asked the high court to instead focus on the issue of preliminary injunctions granted by lower courts.

“The applications do not raise—and thus the Court does not address—the question whether the Executive Order violates the Citizenship Clause or Nationality Act,” according to the ruling, referring to the practice of granting citizenship to babies born on U.S. soil.

Attorney General Pam Bondi, who appeared at the White House with the president, predicted the Supreme Court in its new term in October will take up the merits of the executive order that aims to redefine birthright citizenship.

The high court’s ruling instructs lower courts to “move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity.”

In the first 100 days of the second Trump administration, through April 29, judges issued about 25 nationwide injunctions, according to the Congressional Research Service.

“The lower courts should determine whether a narrower injunction is appropriate; we therefore leave it to them to consider these and any related arguments,” according to the ruling.

A narrower injunction could refer to a class action suit.

Barrett argued that a nationwide injunction would not grant more relief for barring the enforcement of Trump’s executive order against a pregnant person who is not a U.S. citizen and fears their child would be denied citizenship.

“Her child will not be denied citizenship. And extending the injunction to cover everyone similarly situated would not render her relief any more complete,” according to the ruling. “So the individual and associational respondents are wrong to characterize the universal injunction as simply an application of the complete-relief principle.”

Stateless people

Trump ran on a reelection campaign platform promising mass deportations of people without permanent legal status and vowed to end the constitutional right of birthright citizenship.

During the press conference at the White House Trump said that birthright citizenship historically was only meant to benefit the children of the newly freed African Americans, not the children of immigrants.

“It wasn’t meant for people trying to scam the system and come into the country on vacation,” Trump said.

Under birthright citizenship, all children born in the United States are considered citizens, regardless of their parents’ legal status.

If birthright citizenship were to be eliminated, more than 250,000 children born each year would not be granted U.S. citizenship, according to a recent study by the think tank the Migration Policy Institute.

It would effectively create a class of 2.7 million stateless people by 2045, according to the study.

In last month’s oral arguments, Solicitor General D. John Sauer, who argued on behalf of the Trump administration, contended that it’s unconstitutional for federal judges to issue nationwide injunctions. Instead, he said, the injunctions should be limited to those who brought the challenges.

‘Consequences for the children’

New Jersey Attorney General Matt Platkin said during a briefing with reporters that one group of private individuals that challenged the executive order has already filed a class action suit.

“I suspect more will come,” Platkin said.

Washington state Attorney General Nick Brown said at the press conference of Democratic attorneys general that because of Friday’s ruling, the rights of future newborns who hail from states that have not directly challenged the order will be in question.

“In Washington and New Jersey and Massachusetts, Connecticut, your rights are much more strong, but in all those other states, including many of our neighbor states, not participating in this case is going to have consequences for the children born in those states,” Brown said.

With 22 states part of the initial suits challenging Trump’s birthright citizenship order included, that means the order could impact the 28 states that were not part of the initial suit.

Those 28 states are: Alaska, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

‘The gamesmanship in this request is apparent’

Sotomayor, in her dissent, argued that the Trump administration brought the question of nationwide injunctions before the high court because it would be “an impossible task” to prove the constitutionality of the birthright citizenship executive order.

“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone,” she said. “Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.”

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

Sotomayor also questioned the irreparable harm the Trump administration would face.

“Simply put, it strains credulity to treat the Executive Branch as irreparably harmed by injunctions that direct it to continue following settled law,” she said.

She argued that the issue of birthright citizenship was ratified in the 14th Amendment of the Constitution in 1868, following the Civil War, to establish citizenship for newly freed Black people. It was meant to rectify a 1857 case in Dred Scott v. Sandford where the Supreme Court initially denied citizenship to Black people, whether they were free or enslaved.

“By stripping all federal courts, including itself, of that power, the Court kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies,” Sotomayor said. “That runs directly counter to the point of equity: empowering courts to do complete justice, including through flexible remedies that have historically benefited parties and nonparties alike.”

Origins of birthright citizenship case

The case, Trump v. CASA, was consolidated from three cases.

George Escobar, the chief of programs and services of CASA, which brought the case, said in a statement that the ruling from the high court “undermines the fundamental promise of the Constitution — that every child born on U.S. soil is equal under the law.”

“Today’s decision sends a message to U.S.-born children of immigrants that their place in this country is conditional,” Escobar said. “But we are not backing down.”

The CASA case was on behalf of several pregnant women in Maryland who are not U.S. citizens who filed their case in Maryland; the second came from four states — Washington, Arizona, Illinois, and Oregon — that filed a case in Washington state; and the third came from 18 Democratic state attorneys general who filed the challenge in Massachusetts.

Those 18 states are California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Rhode Island, Vermont and Wisconsin. The District of Columbia and the county and city of San Francisco also joined.

This is not the first time the Supreme Court has addressed the issue of birthright citizenship.

In 1898, the Supreme Court upheld the 14th Amendment, in United States v. Wong Kim Ark, extending birthright citizenship.

In that 19th-century case, Ark was born in San Francisco, California, to parents who were citizens of the Republic of China, but had legal authority to be in the United States, such as a temporary visa. While Ark was born in California, his citizenship was not recognized when he went on a trip to China. Upon his return to California, he was denied reentry due to the Chinese Exclusion Act— a racist law designed to restrict and limit nearly all immigration of Chinese nationals.

When his case went all the way to the Supreme Court, the high court ruled that children born in the U.S. to parents who were not citizens automatically become citizens at birth.

The Trump administration has argued that the 1898 case was misinterpreted and point to a specific phrase: “subject to the jurisdiction” of the United States.

Government attorneys contend that the phrase in the 14th Amendment means that birthright citizenship does not apply to people in the U.S. without legal status or temporary legal status who are “subject to the jurisdiction” of their country of origin.

A voter shows identification to an election judge. (Photo by Jeff Swensen/Getty Images)

WASHINGTON — A Massachusetts federal judge on Friday blocked President Donald Trump’s executive order requiring states to mandate voters in federal elections provide documents proving their citizenship, ruling the measure would cause a significant burden to states and potentially harm voters.

U.S. District Judge Denise J. Casper issued a preliminary injunction stopping the order from going into effect while the case is pending.

“There is no dispute (nor could there be) that U.S. citizenship is required to vote in federal elections and the federal voter registration forms require attestation of citizenship,” Casper wrote in her order.

“The issue here is whether the President can require documentary proof of citizenship where the authority for election requirements is in the hands of Congress, its statutes … do not require it, and the statutorily created (Election Assistance Commission) is required to go through a notice and comment period and consult with the States before implementing any changes to the federal forms for voter registration,” Casper, who was appointed by former President Barack Obama, continued.

Democratic attorneys general in 19 states brought the suit in U.S. District Court for the District of Massachusetts after the president signed the order in March.

The order directed the federal Election Assistance Commission, which distributes grants to states, within 30 days to start requiring people registering to vote to provide proof of citizenship, such as a passport or state-issued identification that indicates citizenship.

Harm to voters

In her decision to grant the preliminary injunction, Casper said the states had shown that without a pause on the executive order, “citizens will be disenfranchised.”

“The States have also credibly attested that the challenged requirements could create chaos and confusion that could result in voters losing trust in the election process,” she said.

The executive order posed risks of irreparable harm to states “for at least three reasons,” Casper wrote.

She noted the cost and resources to implement the executive order, the federal funding states are at risk of losing if they do not comply with the order and discouraging voter participation.

Chilling voter participation is “the antithesis of Congress’s purpose in enacting the (The Uniform Overseas Citizens Absentee Voting Act) and the (National Voter Registration Act),” she wrote.

The order also would prohibit the counting of absentee or mail-in ballots that are received after Election Day. States set their own rules for ballot counting and many allow those that arrive after Election Day but postmarked before.

The states that brought the challenge to the executive order are: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Rhode Island, Vermont and Wisconsin.

Crackdown on immigrants

The executive order that Trump signed in March was a culmination of his rhetoric on the campaign trail about people without U.S. citizenship voting in federal elections and his vow to crackdown on immigration and carry out mass deportations.

Republicans have sought to use the rare examples of people without citizenship voting in federal elections, and local governments that allow immigrants to vote in local elections, to tighten restrictions on voter registration.

U.S. House Republicans in April passed a bill to codify the executive order.

The Heritage Foundation, a conservative think tank, conducted an analysis of election conduct from 2003 to 2023 and found 29 instances of noncitizens voting, just more than one per year.

Hundreds gather outside the U.S. Supreme Court on Thursday, May 15, 2025, to protest the Trump administration's effort to strip birthright citizenship from the Constitution. (Photo by Ashley Murray/States Newsroom)

WASHINGTON — U.S. Supreme Court justices appeared split Thursday hearing a major case in which the Trump administration defended not only the president’s order to end the constitutional right to birthright citizenship but also its efforts to limit nationwide injunctions.

Though the dispute before the justices relates to the executive order on birthright citizenship that President Donald Trump signed on his Inauguration Day, the Trump administration is asking the high court to focus on the issue of preliminary injunctions granted by lower courts, rather than the constitutionality of the order.

It means that the Supreme Court could potentially limit the power of federal judges in district courts who curtail the president’s authority.

The Trump administration argues that a federal judge granting a nationwide injunction that blocks the federal government from carrying out its policy anywhere in the country is unconstitutional.

The justices had before them three cases with injunctions levied by judges on Trump’s executive order to end birthright citizenship, from courts in Maryland, Massachusetts and Washington state. Under the 14th Amendment, all children born in the United States are considered citizens, regardless of their parents’ legal status.

Trump’s order, originally planned to go into effect Feb. 19, said that children born in the United States would not be automatically guaranteed citizenship if their parents were in the country without legal authorization or if they were on a temporary legal basis such as a work or student visa.

The justices questioned the practicality of a system in which judges can no longer issue nationwide injunctions and the logistics of instead having individuals file their own cases.

Liberal justice Elena Kagan said that would create a chaotic system, and conservative justice Neil Gorsuch said it would produce a “patchwork” of suits and noted how long it takes for a class — a group of affected people — to be put together for a court case.

Nationwide injunctions have stymied Trump’s agenda, but were also frequent during the Joe Biden administration. However, Trump has lashed out at judges who have blocked his actions, which in March prompted a rare response from conservative Chief Justice John Roberts on the importance of an independent judiciary.

‘Stateless’ children

If the Supreme Court, dominated 6-3 by conservatives, decides that nationwide injunctions are not allowed in the birthright citizenship cases, it would temporarily create a patchwork of citizenship rules varying from state to state while the cases are litigated. Liberal Justice Sonia Sotomayor said it would create a class of stateless people.

“Thousands of children who are going to be born without citizenship papers that could render them stateless in some places because some of their parents’ homes don’t recognize children of their nationals unless those children are born in their countries,” she said.

If birthright citizenship were to be eliminated, 255,000 children born each year would not be granted U.S. citizenship, according to a study by the think tank Migration Policy Institute.

40 injunctions since Jan. 20

Arguing on behalf of the Trump administration, U.S. Solicitor General D. John Sauer, in his opening remarks, noted that since Trump took office in January, there have been 40 nationwide injunctions.

“Universal injunctions exceed the judicial power granted in Article III, which exists only to address the injury to the complaining party,” he said, referring to the Constitution. “They transgress the traditional balance of equitable authority, and it creates a host of practical problems.”

Sauer touched on the merits of birthright citizenship, arguing that the 14th Amendment was only meant to grant citizenship to newly freed Black people, and not for immigrants in the country without legal authorization.

“The suggestion that our position on the merits is weak is profoundly mistaken,” Sauer said. “That kind of snap judgment on the merits that was presented in the lower courts is exactly the problem with the issue of racing to issue these nationwide injunctions.”

He said that the Trump administration would follow the high court’s ruling on birthright citizenship.

Sotomayor said that the Supreme Court has ruled four times to uphold birthright citizenship, starting in 1898, in United States v. Wong Kim Ark, in which the court ruled children born in the U.S. are citizens.

The justice that seemed most inclined to agree with Sauer’s argument was conservative Clarence Thomas, who noted the use of nationwide injunctions began in the 1960s and the U.S. has survived without them.

However, conservative Justice Samuel Alito criticized that district court judges “are vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want.’”

Citizenship ‘turned on and off’

New Jersey Solicitor General Jeremy Feigenbaum, who represented the states that sought an injunction against the birthright citizenship order, laid out how the patchwork of citizenship means that citizenship would be “turned on” and off depending on state lines.

“Since the 14th Amendment, our country has never allowed American citizenship to vary based on the state in which someone resides, because the post-Civil War nation wrote into our Constitution that citizens of the United States and of the states would be one and the same without variation across state lines,” he said.

Immigrant rights’ groups and several pregnant women in Maryland who are not U.S. citizens filed the case in Maryland; four states — Washington, Arizona, Illinois, and Oregon — filed the case in Washington state; and 18 Democratic state attorneys general filed the challenge in Massachusetts.

Those 18 states are California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Rhode Island, Vermont and Wisconsin. The District of Columbia and the county and city of San Francisco also joined.

Feigenbaum argued that the birthright citizenship case before the justices is the rare instance in which nationwide injunctions are needed because under a patchwork system, a burden would be created for states and local facilities such as hospitals where births occur.

“We genuinely don’t know how this could possibly work on the ground,” he said.

Kelsi Corkran, who argued on behalf of immigrant rights groups, said that the Trump order is “blatantly unlawful,” and that a nationwide injunction against the executive order was warranted.

“It is well settled that preliminary injunctions may benefit non-parties when necessary to provide complete relief to the plaintiffs or when warranted by extraordinary circumstances, both of which are true here,” she said.

Corkran is the Supreme Court director at Georgetown’s Institute for Constitutional Advocacy and Protection.

Lots of injunctions

The justices seemed frustrated with the frequent use of preliminary injunctions from the lower courts not only in the Trump administration, but others that occurred during the Biden administration.

Kagan noted that during the first Trump administration, suits were filed in the more liberal courts of California, and that during the Biden administration suits were filed in the more conservative courts in Texas.

“There is a big problem that is created by that mechanism,” Kagan said.

She added that it’s led to frequent emergency requests to the high court.

Conservative Justice Brett Kavanaugh agreed, and called it a “bipartisan” issue that has occurred during Republican and Democratic presidencies.

While the justices seemed concerned about the frequent use of nationwide injunctions, they also seemed eager to address the merits of the constitutionality of the birthright citizenship executive order that could potentially impact newborns.

Kavanaugh returned to the question of the logistics of birthright citizenship and how it would even be enforced.    

He pressed Sauer on how hospitals and local governments would implement the policy and if they would be burdened.

“What would states do with a newborn?” Kavanaugh asked, adding that the executive order requires a quick implementation within 30 days.

Sauer said that hospitals wouldn’t have to do anything differently because the executive order directs the federal government to “not accept documents that have the wrong designation of citizenship from people who are subject to the (executive) order.”

Kavanaugh asked how the federal government would know who is subject to the order.

“The federal officials will have to figure that out,” Sauer said.

Any decision on the case will come before the Supreme Court’s July Fourth recess. 

The U.S. Supreme Court on Thursday, May 15, 2025, will hear cases related to President Donald Trump's executive order on birthright citizenship. (Photo by Jane Norman/States Newsroom)

WASHINGTON — U.S. Supreme Court justices on Thursday are set to hear oral arguments in three cases stemming from the Trump administration’s attempt to end the constitutional right of birthright citizenship — though the focus may be on the power of district court judges to issue orders with national effects.

It’s one of the first major legal fights of the Trump administration’s second term to reach the high court, and one of several immigration-related emergency requests to be considered.

The justices have before them three challenges to President Donald Trump’s executive order to end birthright citizenship, from courts in Maryland, Massachusetts and Washington state. Under birthright citizenship, all children born in the United States are considered citizens, regardless of their parents’ legal status.

But the Trump administration has asked the Supreme Court to focus instead on whether lower court judges can issue nationwide injunctions, rather than the constitutionality of the executive order. Such injunctions affect everyone in the country and not just those involved in the case or living in the court’s district.

It is up to the court alone to decide, though, what it wants to consider, and justices could also wade into the birthright citizenship question.

If birthright citizenship were to be eliminated, more than a quarter of a million children born each year would not be granted U.S. citizenship, according to a new study by the think tank Migration Policy Institute.

It would effectively create a class of 2.7 million stateless people by 2045, according to the study.

The lawyers who will be making oral arguments in court are New Jersey Solicitor General Jeremy Feigenbaum and Kelsi Corkran, Supreme Court director at Georgetown’s Institute for Constitutional Advocacy and Protection.

In briefs, they argue that the Trump administration has not shown it will be harmed by the multiple district courts placing the executive order on hold.

On the core issue of birthright citizenship, in their briefs, they argue that the 14th Amendment “guarantees citizenship to all born in the United States and subject to the jurisdiction thereof” and cite Supreme Court cases that have upheld birthright citizenship to those born in the U.S.

Nine justices, three cases

The nine justices will hear arguments on whether lower courts erred in granting a nationwide pause on the policy that extended beyond the plaintiffs who initially filed the challenge.

Immigrant rights’ groups and several pregnant women in Maryland who are not U.S. citizens filed the case in Maryland; four states — Washington, Arizona, Illinois, and Oregon — filed the case in Washington state; and 18 Democratic state attorneys general filed the challenge in Massachusetts.

Those 18 states are California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New Jersey, New York, North Carolina, Rhode Island, Vermont and Wisconsin.

Solicitor General D. John Sauer, who will argue on behalf of the Trump administration, has criticized the nationwide injunctions as impeding the executive branch’s authority. 

The Trump administration has contended that it’s unconstitutional for federal judges to issue nationwide injunctions. Instead, the Trump administration said, the injunctions should be limited to those who brought the challenges.

Wong Kim Ark case

On Trump’s Inauguration Day, he signed an executive order, which was originally planned to go into effect Feb. 19, that children born in the United States would not be automatically guaranteed citizenship if their parents were in the country without legal authorization or if they were on a temporary legal basis such as a work or student visa.

Birthright citizenship was adopted in the 14th Amendment of the Constitution in 1868, following the Civil War, to establish citizenship for newly freed Black people. In 1857, in Dred Scott v. Sandford, the Supreme Court initially denied citizenship to Black people, whether they were free or enslaved.

In 1898, the Supreme Court upheld birthright citizenship, when the justices ruled in United States v. Wong Kim Ark that children born in the U.S. are citizens.

In that case, Ark was born in San Francisco, California, to parents who were citizens of the Republic of China, but had a temporary legal authority to be in the country, such as a visa.

When Ark left the U.S. for a trip to China, on his return his citizenship was not recognized and he was denied reentry due to the Chinese Exclusion Act— a racist law designed to restrict and limit nearly all immigration of Chinese nationals.

The high court eventually ruled that children born in the United States to parents who were not citizens automatically become citizens at birth.

In arguments in the lower courts on the current case, attorneys on behalf of the Trump administration argue that the Wong Kim Ark case was misinterpreted and pointed to a phrase in the 14th Amendment: “subject to the jurisdiction.”

The Trump administration contends that phrase means that birthright citizenship only applies to children born to parents who are “subject to the jurisdiction” of the United States. In their view, people in the U.S. without legal status or temporary legal status are “subject to the jurisdiction” of their country of origin.

Tribal sovereignty

Tribal law scholars have noted that the language pertaining to “jurisdiction of” stems from the idea of political alliance when it comes to tribal sovereignty.

It’s from another Supreme Court case involving the U.S. citizenship of American Indian citizens, which the Trump administration focuses on in its argument, citing Elk v. Wilkins in 1884.

In that case, the Supreme Court denied citizenship to John Elk, a Winnebago man living in Omaha, Nebraska, on the grounds that “Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities.”

Torey Dolan, an assistant professor of law at the University of Wisconsin Law School, said the Trump administration’s reliance on Elk in its birthright citizenship executive order and the idea the political alliance of a parent would then transfer to a child is a misinterpretation.

“A lot of this reliance on Elk is really a distortion,” Dolan said. “I think the administration’s reliance is a stretch, at best, and a bastardization of the case, at worst.”

Dolan, an enrolled citizen of the Choctaw Nation of Oklahoma, said some Native Americans were excluded from citizenship in the 14th Amendment because during that time, Congress would specifically sign treaties with tribes and grant citizenship.

“That is consistent with a long history of Congress creating pathways to Indian citizenship,” she said.

After the justices hear arguments on Thursday, any decision is likely to come before the Supreme Court’s recess in early July.