Supreme Court tackles birthright citizenship case injunctions

San Francisco Chronicle​

2 days ago

The U.S. Supreme Court spent more than two hours Thursday hearing arguments on President Donald Trump's attempt to deny citizenship to U.S.-born children of undocumented immigrants without ever discussing whether the U.S. Constitution grants birthright citizenship, as the court decided in 1898. Instead, the justices debated whether individual judges could block Trump's order nationwide, as three judges have already done.
'We survived until the 1960s without universal injunctions,' said Justice Clarence Thomas, the court's most outspoken opponent of allowing lower-court judges who decide that a policy is unconstitutional to block it nationwide.
Justice Brett Kavanaugh, another member of the court's conservative majority, observed that U.S. District Court orders halting presidential policies can remain in place for a year or more before reaching the Supreme Court. 'Presidents want to get things done,' he said.
The justices appeared to be divided on the issue, with several conservatives expressing concerns about wide-ranging injunctions issued by federal judges while members of the court's liberal minority said such orders may be necessary to protect vulnerable populations such as immigrant families. A few justices kept their opinions to themselves.
Solicitor General D. John Sauer, the Trump administration's lawyer, urged the court to narrow or lift the lower-court orders but put off any arguments on the legality of birthright citizenship.
'The merits argument we are presenting to lower courts,' Sauer said, is that 'the original meaning of the (Constitution's) citizenship clause extended citizenship to descendants of former slaves, not to children of those who were unlawfully in the United States.'
That is not what the court said in the 1898 case of Wong Kim Ark, who was born in San Francisco to parents who had emigrated from China. The court upheld his U.S. citizenship based on the 14th Amendment, which was adopted in 1868 after the Civil War and grants citizenship to 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.'
'The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,' the justices said in a 6-2 ruling. The only stated exceptions are the children born to foreign diplomats or to soldiers of invading armies.
The Supreme Court reaffirmed the ruling in 1982 and 1985, in decisions that approved citizenship for U.S.-born children of undocumented immigrants.
'The president cannot rewrite the Constitution and contradict the Supreme Court's own holdings with the stroke of a pen,' California Attorney General Rob Bonta, and colleagues from 18 other states that challenged Trump's action, said in a statement after the hearing.
Trump issued an executive order after taking office in January declaring an end to birthright citizenship for children born to undocumented immigrants and to parents temporarily visiting the United States. Federal judges in Washington state, Maryland and Massachusetts have ordered a nationwide halt to his order in lawsuits by Democratic-controlled states and the city of San Francisco and by immigrant-rights advocates.
The issue in Thursday's hearing, and in other cases pending before the Supreme Court, is the scope of U.S. District Court judges' authority to block executive orders they consider unconstitutional.
Allowing individual judges to issue nationwide injunctions 'encourages rampant court-shopping,' said Sauer, urging the court to allow only individuals who filed the suits to benefit from the rulings while they are being appealed. He also disputed the lower-court decisions that the states could show they were harmed by Trump's order and therefore had the right to challenge it on behalf of their residents.
That was disputed by Justice Ketanji Brown Jackson, one of the court's three liberal members.
'When the (judge) says, 'Follow the law,' everybody in the world who is hurt by your not following the law benefits,' regardless of whether they filed the original lawsuit, she told Sauer. 'We are just doing what courts do, just telling institutions they have to stop doing something unlawful.'
The states' lawyer, New Jersey Solicitor General Jeremy Feigenbaum, said, 'Our country has never allowed citizenship to vary based on the state in which one resides.' Unless the injunctions were applied nationally while the case was pending, he said, children and their families would rapidly migrate to states that recognized their citizenship, driving up costs and causing instability.
But that only means that 'the practical problem would not be solved' by granting states legal standing to sue, said Justice Samuel Alito, another member of the court's conservative majority. And Kavanaugh said immigrant families could file class action lawsuits on behalf of those affected by the policy, rather than relying on nationwide injunctions.
The cases are Trump v. Casa Inc., 24A884; Trump v. Washington, 24A885; and Trump v. New Jersey, 24A886. A ruling is due by the end of June.