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The Supreme Court hears arguments today in President Trump's challenge to a constitutional provision that guarantees citizenship to everyone born in the USA. The administration is seen as facing long odds of winning on that direct issue, but the argument likely will focus on another somewhat related question, one that could make it harder to challenge the administration's policies in the future. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The 14th Amendment to the Constitution, enacted after the Civil War, was aimed at reversing the Supreme Court's infamous Dred Scott decision, a ruling that declared Black people enslaved or free could not be citizens of the United States. The amendment says, quote, "all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States." There's never been much question about what that means.
One hundred and twenty-seven years ago, the Supreme Court ruled unanimously that the amendment guarantees citizenship to all babies born in the U.S., and Congress 42 years later passed a statute saying the same thing. President Trump, however, has long maintained that the Constitution does not guarantee birthright citizenship. So on Day 1 of his second presidential term, he issued an executive order barring automatic citizenship for any baby born in the U.S. whose parents entered the country illegally or who were here legally but on a temporary visa.
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PRESIDENT DONALD TRUMP: It's just absolutely ridiculous.
TOTENBERG: Immigrant rights groups and 22 states promptly challenged the Trump order in court. Since then, three federal judges, conservative and liberal, have ruled that the Trump order is, as one put it, blatantly unconstitutional. And three separate appeals courts have refused to unblock those orders while appeals are ongoing. Meanwhile, Trump's legal claim has few supporters. At a program put on by the conservative Federalist Society, conservative writer Robert Verbruggen referred to birthright citizenship as...
ROBERT VERBRUGGEN: A nutty policy we're probably stuck with.
TOTENBERG: In April, however, the Trump administration took its case to the Supreme Court on an emergency basis. But instead of asking the court to rule on the legality of Trump's executive order, the administration focused its argument on the power of federal district court judges to do what they did here - rule against the administration on a nationwide basis. The odd result is that today, the Supreme Court may hear arguments about birthright citizenship, but most of the debate is likely to focus on what are called universal injunctions, like the ones in this case that have barred the administration from enforcing its birthright policy anywhere in the country while the case proceeds through the appellate process in numerous jurisdictions. The Trump administration is not the first to complain about nationwide injunctions, observes Notre Dame law professor Samuel Bray.
SAMUEL BRAY: It's a bipartisan scourge.
TOTENBERG: And yet Bray admits that there is little wiggle room in terms of a principle that would weed out unjustified nationwide injunctions and leave in place the ones that are needed to prevent ongoing harm from continuing.
BRAY: I don't find a lot of middle ground options there.
TOTENBERG: He thinks that because Trump is, quote, so "flagrantly wrong" about birthright citizenship, the court could acknowledge that but use today's case to get rid of nationwide injunctions altogether. Georgetown University law professor Stephen Vladeck disagrees.
STEPHEN VLADECK: To me, that sort of gives up the game about what's really at stake here, because then you're saying, yes, we all know this is unlawful, and we're going to let the government put it into effect anyway.
TOTENBERG: Indeed, he adds, the birthright citizenship case is a prime example of why nationwide injunctions are sometimes needed.
VLADECK: And the question the Supreme Court needs to ask itself going into oral argument is whether it wants the federal courts to be able to block these policies on a nationwide basis, or whether it's going to require these cases to go plaintiff by plaintiff, and district by district, when you have an administration that will see that as a green light to try to manipulate the circumstances of other cases.
TOTENBERG: And that, he maintains, will end up deluging the court with more, not fewer, emergency cases. Professor Bray, however, thinks this case was filed at just the right time psychologically.
BRAY: You just have to imagine the justices are looking at the potential for the emergency docket consuming the entire summer when they're supposed to be away.
TOTENBERG: The summer break is good for the justices, he observes. They get time to recharge, let tempers cool and come back from vacation refreshed for a new term in the fall. But in layman's terms, unless they do something to curb universal injunctions, this could really screw up their summer. Fixing the problem is not so easy, though, explains William Powell, one of the lawyers representing the Asylum Seeker Advocacy Project, one of the groups suing to block Trump's birthright order.
WILLIAM POWELL: Citizenship under the 14th Amendment needs to apply in a way that is uniform across the country. We cannot have a situation in which a baby born in Massachusetts is a birthright citizen, but a baby born in Tennessee isn't.
TOTENBERG: The 22 states that are also challenging Trump's birthright order contend that a decision barring nationwide injunctions would cause chaos until the case is ultimately resolved in the years it would take to get a final ruling from the Supreme Court. Noah Purcell is solicitor general for the state of Washington.
NOAH PURCELL: Under their theory, a child born in Philadelphia would not become a citizen. But of course, that child could easily move across the border to New Jersey or another state, and that would just be a logistical nightmare.
TOTENBERG: Of course, behind all the legal arguments, there are real people, people like Dina and Henry. Those are the names they're using in legal papers. They've been in the U.S. for six years and just had their first child. Both are IT specialists seeking asylum. Their stories are different, but both say they fled in fear for their lives. Here's Dina.
DINA: My dad was forcing me to get married to somebody, and one of my brothers intervened. And in the process, he got killed.
TOTENBERG: Dina and Henry's baby was born in April. And their biggest worry right now is that their child will be stateless, neither a citizen of the U.S. nor of Kenya. As Henry puts it...
HENRY: We feel as though she may be relegated to a class of population that are not identified with any kind of country.
TOTENBERG: A decision in the birthright citizenship case is expected by late June or early July.
Nina Totenberg, NPR News, Washington.
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