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. 

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Official proof of three things — identity, age and citizenship or qualifying immigration status — is required to obtain a Social Security number.

For U.S.-born adults, required documents include a U.S. birth certificate or a U.S. passport, though most U.S.-born citizens are issued a Social Security number at birth.

Noncitizens can apply if they have U.S. permission to work in the U.S. or permanent resident status (U.S.-issued green card). Less common are nonworking immigrants, such as those issued a student visa, who need a Social Security number.

“Merely showing a bill or a school ID is not sufficient,” Kathleen Romig, a former senior adviser at the Social Security Administration, told Wisconsin Watch.

Elon Musk claimed March 30 in Green Bay, Wisconsin, that “basically, you can show … a medical bill and a school ID and get a Social Security number.”

Trump administration officials did not reply to emails seeking comment.

This fact brief is responsive to conversations such as this one.

Sources

• Social Security Administration: Original Card for a U.S. Born Adult and Noncitizen
• Paul Van de Water, Social Security expert retired from Center on Budget and Policy Priorities: Email
• Kathleen Romig, former senior adviser at the Social Security Administration: Email
• Forbes: Breaking News: Elon Musk Takes Question After Question At Town Hall Event In Green Bay, Wisconsin
• Washington Post: Musk floats falsehoods about Social Security, immigrants as DOGE seeks changes

Are a medical bill and school identification legally enough to be issued a Social Security number? is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.