Legal experts pan Trump’s Supreme Court appeal on birthright citizenship
- Share via
- Legal experts questioned the practicality and the fairness of having a citizenship rule that applied at least temporarily in some parts of the country but not others.
- In recent years, several justices have questioned the power of a single judge to hand down a ruling that applies nationwide.
奥础厂贬滨狈骋罢翱狈&苍产蝉辫;—&苍产蝉辫;Trump administration lawyers sent the Supreme Court an emergency appeal this week with a “modest” procedural request, not to uphold new limits on birthright citizenship but rather to narrow the scope of rulings that blocked the limits from taking effect.
It’s a move that surprised and puzzled many legal experts.
They questioned the practicality and the fairness of having a citizenship rule that applied at least temporarily in some parts of the country but not others.
“This is a terrible case to raise this issue,” said University of Virginia law professor Amanda Frost. “Without a nationwide injunction, it would be chaos.”
She said pregnant women might have to cross state borders to ensure their babies were registered as citizens at birth. Judges might have to decide case by case on whether those birth registrations are proper.
The Trump administration is asking the Supreme Court to allow restrictions on birthright citizenship to partly take effect while legal fights play out.
Shortly after President Trump issued his executive order proposing to end birthright citizenship, three judges — in Maryland, Massachusetts and Washington state — declared the change unconstitutional nationwide. They ruled in cases brought on behalf of 22 states, including California, and several groups that represent immigrants.
“If ever a universal injunction makes sense, it’s in a case like this,” George Mason University saw professor Ilya Somin wrote in a blog post. “Nationwide lawbreaking by the federal government requires a nationwide remedy. And that’s especially true if the illegality affects the rights of large numbers of people, many of whom could not easily or quickly bring individual suits to challenge it.”
But Trump administration lawyers argued that district judges should not be allowed to issue rulings that apply nationwide. And they said the court should act now to rein in these judges.
If the justices were to agree, it could deny citizenship in much of the nation to children whose mothers were in the country without legal status.
“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” wrote acting Solicitor Gen. Sarah M. Harris. “The sooner universal injunctions are eliminated root and branch, the better.”
The justices, however, signaled they are not ready to move quickly. They set April 4 as a deadline for responses from the lawyers who won the rulings blocking Trump’s order on birthright citizenship.
In recent years, several justices have questioned the power of a single judge to hand down a ruling that applies nationwide.
Sometimes judges seek to “govern the whole nation from their courtrooms,” Justice Neil M. Gorsuch said last year.
Democrats complained when judges in Texas and Louisiana issued nationwide rulings to block Biden administration regulations.
Two years ago, a conservative judge in Amarillo, Texas, ordered a nationwide ban on abortion pills. The Supreme Court blocked his order and then overturned it entirely on the grounds that the antiabortion plaintiffs did not have standing to sue.
During Trump’s first term, Republicans complained when judges in San Francisco and New York blocked his regulations including the travel ban that halted visitors from several Muslim-majority counties.
Harris said the problem has grown worse.
“Universal injunctions have reached epidemic proportions since the start of the current Administration,” she wrote. “District courts have issued more universal injunctions and [temporary restraining orders] during February 2025 alone than through the first three years of the Biden Administration.”
A federal judge blocks Trump’s executive order ending birthright citizenship for children of people in the U.S. illegally, saying he’s not persuaded by the administration’s arguments.
Much of the difference may be due to the unusual number of far-reaching executive orders issued in Trump’s first weeks in office.
This week’s appeals do not ask the court to weigh in on the underlying dispute over the meaning of the 14th Amendment adopted after the Civil War. It says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”
That rule of citizenship based on birth has been well-established and not seriously questioned in the courts.
But Trump and his supporters assert that some authors of the 14th Amendment did not think it extended to children born of women who are in the country temporarily.
Trump’s executive order, if it becomes law, would make two changes. It would deny citizenship to a child if the “person’s mother was unlawfully present in the United States” and the father was not a U.S. citizen or a lawful permanent resident or if the mother was in the country legally but temporarily, such as on a student or tourist visa.
The administration’s appeal could allow those changes to take effect in a large part of the country.
But if the justices are not ready to uphold those changes, Harris proposed a fallback option.
The justices, she wrote, “at a minimum” should make clear the administration may develop and issue “guidance explaining how they would implement the Citizenship Order in the event that it takes effect.”
Get the L.A. Times Politics newsletter
Deeply reported insights into legislation, politics and policy from Sacramento, Washington and beyond. In your inbox twice per week.
You may occasionally receive promotional content from the Los Angeles Times.
