Supreme court to hear birthright citizenship dispute

Good morning and welcome to our blog covering US politics as the supreme court prepares to hear arguments over birthright citizenship in a case that could significantly expand Donald Trump’s power.

As part of a sweeping crackdown on both undocumented and legal immigrants, Trump signed an executive order on inauguration day that tried to end, for some, the right to US citizenship for children born in the United States.

The order was blocked as “blatantly unconstitutional”, in one judge’s opinion, after immediate legal challenges. Appeals failed and four months later the issue has made its way to the increasingly divided US supreme court as an emergency case.

But Trump’s legal team isn’t asking the supreme court to rule on whether his policy is constitutional. Instead, they are challenging whether lower court judges should be able to block presidential orders nationwide – a move that could overall weaken judicial checks on executive power.

If Trump prevails, his administration could enforce his desired citizenship policy in parts of the country where specific courts haven’t blocked it – creating different citizenship rules in different states while legal challenges continue.

You can read this useful backgrounder here:

We’ll be following all the developments here. And in other news:

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Health secretary Robert F Kennedy Jr described the downsizing of his department as necessary cost-cutting measures as he defended his spending plans under Donald Trump’s budget proposal. The plans include an $18bn cut to National Institutes of Health funding and $3.6bn from the Centers for Disease Control and Prevention. Kennedy’s back-to-back testimonies before House and Senate committees were his first appearances before lawmakers since his confirmation in February.
Protesters interrupted Robert F Kennedy Jr’s opening remarks before the Senate health committee this afternoon, shouting: “RFK kills people with Aids!” The health secretary was visibly startled and jumped from his chair when protesters began shouting, before being removed by Capitol police.
Tulsi Gabbard, the US director of national intelligence, has fired the two highest-ranking officials at the National Intelligence Council just weeks after the council released an assessment that contradicted Donald Trump’s justification for using the Alien Enemies Act to deport alleged Venezuelan gang members without due process. Mike Collins was serving as acting chair of the National Intelligence Council before he was dismissed alongside his deputy, Maria Langan-Riekhof. They each had more than 25 years of intelligence experience.
A Russian-born researcher at Harvard University who has been held for weeks in an immigration detention center in Louisiana has been criminally charged with attempting to smuggle frog embryo samples into the US. Federal prosecutors in Boston announced the smuggling charge against Kseniia Petrova, 31, hours after a federal judge in Vermont heard arguments in a lawsuit she filed that argues the Trump administration has been unlawfully detaining her.
The Trump administration’s commerce secretary, Howard Lutnick, and his family have had extensive business interests linked to El Salvador, whose authoritarian leader Nayib Bukele has grown close to the White House and who has courted controversy by imprisoning people deported from the US in an aggressive immigration crackdown. El Salvador also plays host to a booming cryptocurrency and new media industry, which has numerous ties to Donald Trump allies who are seeking to make money from various ventures which have sometimes drawn the attention of authorities or ethics watchdogs.
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Key events

What if the supreme court sides with Trump?

Alexandra Villarreal

Depending on what the majority opinion eventually says, the supreme court could be flirting with disaster for families across the nation.

If, for example, the justices limit the current injunctions against Trump’s executive order to only apply to people and entities involved in the lawsuits challenging the policy, that could create significant logistical issues.

Babies born to immigrants at the same hospital may have different citizenship statuses, depending on whether their parents had the ability to engage an attorney and participate in litigation. Or a newborn in New Jersey could derive birthright citizenship, while one in Mississippi didn’t.

And the ensuing turmoil could render birth certificates essentially useless for proving US citizenship, even for children born to Americans.

Why is the supreme court involved now?

Alexandra Villarreal

The justices are hearing arguments after three lower courts issued nationwide injunctions, pausing enforcement of Trump’s executive order.

So far, no newborns have had their right to US citizenship revoked by the policy change, thanks to these nationwide injunctions – which are viewed as controversial by some of the justices, from the conservative and liberal ends of the bench – that have been upheld on appeal. But Trump hopes to change that.

Could Trump actually end birthright citizenship?

Alexandra Villarreal

Maybe – although probably not, and almost definitely not through executive order.

The Citizenship Clause is part of the US constitution, the nation’s founding document. Generally, legal scholars strongly suggest that neither executive action nor legislation should be able to supersede the constitution’s guarantee of birthright citizenship for those born on US soil.

According to the Harvard Law professor Gerald Neuman: “The president has no authority to change the citizenship rule at all. Congress can change the rule, but only to the extent of making it broader. Neither Congress nor the president can reduce it below the constitutional minimum.”

However, because the legal precedent set by Wong Kim Ark well over a century ago is so fundamental to how birthright citizenship relates to the children of immigrants, the current court battles erupting from Trump’s executive order could – in the most extreme scenario – jeopardize the US’s understanding of birthright citizenship as we know it.

In fact, forcing the supreme court to reinterpret the 14th amendment is probably part of the long game that the Trump administration is playing with its executive order, although we are not there yet. And even with the White House raring for a fight, a complete overhaul of case law around birthright citizenship remains improbable.

The other way to override an existing part of the constitution would be to ratify another amendment, which would require a level of political support that is unlikely for such a fringe, rightwing issue.

Who is not a US citizen, even if they are born in the US?

Alexandra Villarreal

There are exceedingly rare exceptions to the principle of jus soli, where people born in the US are not automatically granted US citizenship.

Until the enactment of a law in 1924, Indigenous peoples born in the US were excluded. In 2021, the supreme court decided that people born in American Samoa’s unincorporated territories are not automatically guaranteed birthright citizenship, unless Congress enacts legislation. And the children of foreign diplomats – or, in a more violent scenario, the kids of enemy occupiers – also lack a right to US citizenship by birth.

What is the legal basis for birthright citizenship in the US?

Alexandra Villarreal

As a concept, jus soli comes from English common law, which held centuries ago that people born in England were natural subjects.

But unrestricted birthright citizenship in the US that includes people of color – not just white Americans – derives from the US constitution. In 1857, the supreme court ruled that Black descendants of enslaved people could not be US citizens. To right this injustice, just over a decade later, the US ratified the 14th amendment.

The first line of the 14th amendment reads: “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.” Known as the Citizenship Clause, this phrase – alongside a number of related statutes and regulations – establishes the modern basis for birthright citizenship.

Joseph Gedeon

The US supreme court will hear arguments on Thursday in a dispute that could significantly expand presidential power despite ostensibly focusing on Donald Trump’s contentious executive order ending birthright citizenship.

The trio of cases before the court stem from the president’s January executive order that would deny US citizenship to babies born on American soil if their parents aren’t citizens or permanent residents. The plan is likely to be ultimately struck down, as it directly contradicts the 14th amendment, which grants citizenship to “all persons born or naturalized in the United States”.

Three federal judges have blocked the policy nationwide, including US district judge Deborah Boardman, who ruled that “no court in the country has ever endorsed the president’s interpretation.”

But the justice department argues these “nationwide injunctions” unfairly tie the president’s hands. “These injunctions have reached epidemic proportions since the start of the Trump Administration,” the department wrote in a March filing. The administration is asking for the scope of the injunctions to be narrowed, so they only apply to the people, organizations or states that sued.

If Trump prevails, his administration could potentially enforce his desired citizenship policy in parts of the country where specific courts haven’t blocked it – creating different citizenship rules in different states while legal challenges continue.