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The US Supreme Court wrestled on Thursday over Donald Trump's attempt to broadly enforce his executive order to restrict birthright citizenship, a move that would affect thousands of babies born each year as the Republican president seeks a major shift in how the US Constitution has long been understood.
The court's conservative justices, who hold a 6-3 majority, seemed willing to limit the ability of lower courts to issue nationwide, or "universal," injunctions, as federal judges in Maryland, Washington and Massachusetts did to block Trump's directive. None of the justices, however, signalled an endorsement of Trump's order and some of the liberals said it violates the Constitution and the court's own precedents.
The justices heard more than two hours of arguments in the administration's emergency request to scale back the injunctions blocking Trump's directive, which is a key part of his hardline approach toward immigration. Three judges found that Trump's order likely violates the Constitution's 14th Amendment citizenship language, according to Reuters.
Trump signed his order on January 20, his first day back in office. It directed federal agencies to refuse to recognise the citizenship of US-born children who do not have at least one parent who is an American citizen or lawful permanent resident, also known as a "green card" holder.
Liberal Justice Sonia Sotomayor said she believes Trump's order violates multiple Supreme Court precedents concerning citizenship. Sotomayor said the court should weigh the order's legality "if we are worried about those thousands of children who are going to be born without citizenship papers that could render them stateless" and leave them ineligible for government benefits.
More than 150,000 newborns would be denied citizenship annually if Trump's order takes effect, according to the plaintiffs who challenged the directive, including the Democratic attorneys general of 22 states as well as immigrant rights advocates and pregnant immigrants.
The case is unusual in that the administration has used it to argue that federal judges lack the authority to issue universal injunctions, and has asked the justices to rule that way and enforce Trump's directive even without weighing its legal merits. US Solicitor General D. John Sauer, arguing for the administration, focused on this issue, calling the increasing use by judges of universal injunctions a "pathology."
In potentially restricting the ability of lower courts to issue universal injunctions in certain instances, the conservative justices raised the idea of requiring plaintiffs to funnel claims seeking broader relief into class-action lawsuits, which are filed on behalf of a group of people who suffer similar legal injuries.
Complicating matters, some justices-conservatives and liberals alike-also seemed reticent to rule without further delving into the underlying legal merits of Trump's directive. It remained uncertain whether the court would order further briefing, which would further delay resolution of the case.
Conservative Justice Samuel Alito asked Kelsi Corkran, a lawyer for some of the plaintiffs, "Should we decide or make up our minds on the underlying birthright citizenship question without briefing and argument and deliberation?"
Corkran said the justices should take up the case specifically on the merits of Trump's order, adding, "The government is asking the court to allow it to ignore this court's precedents ... and to upend 100 years of executive branch practice."
The plaintiffs argued that Trump's directive violated the 14th Amendment, which long has been understood to confer citizenship on almost anyone born on US soil. It was ratified in 1868 in the aftermath of the Civil War that ended slavery in the United States.
The 14th Amendment's citizenship clause states that all "persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
The administration contends that this citizenship language does not extend to immigrants in the country illegally or immigrants whose presence is lawful but temporary, such as university students or those on work visas.