President Donald Trump’s (R) administration is asking the United States Supreme Court to uphold the Executive Order issued on Inauguration Day redefining birthright citizenship.
Although the Court considered a case earlier this year stemming from challenges to the Administration’s new policy, the Justices were not tasked with weighing in on the merits of the discussion.
Instead, they were asked at the time to define the bounds of authority for federal judges, determining whether or not they have the power to issue nationwide, or universal, injunctions.
The 6-3 ruling released in June found that federal judges “likely exceed the equitable authority that Congress has granted [them]” when issuing universal injunctions.
[RELATED: SCOTUS Reins In Federal Judges on Nationwide Injunctions, Yet to Rule on Birthright Citizenship]
The United States Justice Department (DOJ) is now asking the Supreme Court to directly determine the constitutionality of the President’s Executive Order.
Two petitions have been filed by the DOJ, but neither has been docketed by the Court. Copies of the petitions were obtained, however, by The Hill.
“The lower court’s decisions invalidated a policy of prime importance to the President and his Administration in a manner that undermines our border security. Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people,” Solicitor General D. John Sauer wrote.
Cody Wofsy, an American Civil Liberties Union lawyer, has called the executive order “illegal, full stop” in an email shared by the Associated Press.
“No amount of maneuvering from the administration is going to change that,” said Wofsy. “We will continue to ensure that no baby’s citizenship is ever stripped away by this cruel and senseless order,” Wofsy said in an email to the Associated Press.
Every judge who has reviewed the provision to date has found it to be a violation of the 14th Amendment, but the Trump Administration is hoping that the Supreme Court will come to a different conclusion upon review.
President Trump’s Executive Order — titled Protecting the Meaning and value of American Citizenship — was signed just hours after the inauguration and states that “the privilege of United States citizenship is a priceless and profound gift.”
“The Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” Trump wrote. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United State but not ‘subject to the jurisdiction thereof.’”
[RELATED: Pres. Trump’s Executive Order Redefining Birthright Citizenship Temporarily Blocked by Federal Judge]
Ratified in 1868, the Fourteenth Amendment states: 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.
Currently, the United States grants full citizenship to anyone born on U.S. soil regardless of whether their parents are in the country legally or illegally.
Incorporated into the Constitution in the wake of the Civil War, the Citizenship Clause of the Fourteenth Amendment was designed to ensure that all formerly enslaved people would be granted citizenship.
By ratifying this amendment, the nation overturned the infamous 1857 Supreme Court ruling in Dred Scott v. Sandford wherein the Justices decided that enslaved people were not United States citizens.
Setting up the modern interpretation of this clause was the Supreme Court ruling in the case of United States v. Wong Kim Ark wherein the citizenship status Wong Kim Ark — who was born in the San Fransisco to parents who were Chinese citizens “living and working “permanently domiciled” in America — was called into question.
Under the Naturalization Act of 1802, Ark’s parents were ineligible to become naturalized citizens, as Congress continued to limit eligibility for naturalization to “free white persons
.”
The 6-2 majority opinion in the Wong Kim Ark case, authored by Justice Horace Gray, declared that, under the Fourteenth Amendment, Ark was a United States citizen.
Click Here to Read the Full Text of Pres. Trump’s Executive Order
Trump’s Executive Order establishes that “it is the policy of the United States” that citizenship shall not be granted to those whose “mother was unlawfully present in the United States and [whose] father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
Birthright citizenship would also not be extended to those whose “mother’s presence in the United States was lawful but temporary, and [whose] father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
This clause of the Executive Order would likely impact the ability of children born to those with pending asylum claims, as well as those who are in the United States on temporary work, student or tourist visas, to obtain birthright citizenship.
If the United States Supreme Court accepts the DOJ’s petitions next term, a ruling on the constitutionality of the President’s birthright citizenship Executive Order may come next summer.
Should the Court decide to take up the case, oral arguments would likely take place in late winter or early spring.
Already on the Supreme Court’s docket this fall are cases pertaining to the President’s tariffs and the legality of without-cause firings of independent agency leaders.
