'The whole pie': Trump team attempts novel legal strategy to subvert birthright citizenship

WASHINGTON — The Trump administration is asking the Supreme Court to curtail a lower court’s ability to issue a national injunction, hatching a novel legal strategy in its bid to radically revise a bedrock American principle: birthright citizenship.

Instead of asking the Supreme Court to directly rule on the constitutionality of granting U.S.-born children automatic citizenship, the Department of Justice requested this week that lower courts be barred from blocking Trump’s executive order limiting birthright citizenship on a national scale.

So far, three federal judges have issued overlapping injunctions to block Trump’s executive order which aims to keep the children of visa holders and undocumented immigrants from being American by birth.

In a March 13 filing to the Supreme Court, the Trump administration said that in an ideal world, the existing injunctions would apply to only the individuals who sued the federal government in a personal capacity. But they are also open to the court blocking the order on a more limited scale. For example, limiting the injunctions to the states and organizations that have participated in the lawsuits alongside the individuals.

“They’re giving the court five or six different ways to help them. But they are asking for the whole pie and they will settle for whatever they can get,” said Brian Green, a Colorado-based immigration attorney.

The issue at play

Assistant Professor Haiyun Damon-Feng at Cardozo School of Law told the Miami Herald that that the Trump administration might be banking on some Supreme Court Justices having previously signaled skepticism about the validity of nationwide injunctions as a remedy in general. She said it would be an “odd result” if the Supreme Court allowed the Trump administration to apply a potentially unconstitutional executive order to some people and not others. Federal Judge John Coughenour, a Reagan appointee who issued one of the nationwide injunctions out of Seattle, described the executive order as “blatantly unconstitutional.”

Nationwide injunctions are court orders that block the federal government from enforcing policies across the entire country, not just for the individuals who sue. The Trump administration argues that these injunctions amount to judicial overreach, preventing the executive branch from implementing its policies.

“Universal injunctions compromise the Executive Branch’s ability to carry out its functions,” Justice Department attorney Sarah Harris wrote in her application to the Supreme Court, characterizing the nationwide blocks as having reached “epidemic proportions” since Trump’s return to the presidency.

Put simply, the Trump administration wants the nation’s highest court — which Trump has had an outsize impact in shaping — to weigh in on a cornerstone tenet of U.S. immigration policies.

Critics, however, maintain that these injunctions are necessary to prevent unconstitutional actions from taking effect nationwide. Federal judges addressing Trump policies issued 15 universal injunctions or temporary restraining orders last month.

Should the Supreme Court rule in favor of Trump, that could weaken lower courts’ ability to block executive actions on a range of other future policies — on healthcare, the environment or antitrust issues — and dramatically reshape the balance of power between the judiciary and the executive branch.

“It could be a reimagining of the court’s authority in service of a robustly powerful executive branch,” said Damon-Feng.

What Trump is asking for

If the high court limits nationwide injunctions, Trump’s policy could go into effect in areas where lawsuits have not yet been filed, creating a patchwork of enforcement issues across the country. This could lead to widespread legal uncertainty and a waterfall of litigation — which might be the unspoken aim of the Trump legal team.

Such a development could have sweeping implications in a state like Florida, where the federal government found that over half a million residents are undocumented. Other estimates put that number close to 1 million. And researchers have also found that roughly 280,000 children live with at least one undocumented relative, in many cases a parent.

Green, the immigration attorney from Colorado, said it’s “probably not tenable” under the U.S. Constitution for babies to be born in one state to get U.S. citizenship automatically and not in other states. However, he noted that people could end up in limbo while awaiting a final decision.

“Maybe they can’t travel for a couple of years, or they can’t get proof of citizenship,” he said. “And that’s the most vital thing we have as U.S. citizens. The ability to be protected under laws and vote. So I would hate to see people’s rights be abridged while all the sausage making goes on for a couple of years.”

Long deemed a fundamental American right

On his first day in office, Trump issued an executive order to exclude the children of undocumented immigrants and temporary visa holders from being Americans. The move breaks away from long-standing precedent that all babies born in the United States are automatically U.S. citizens, with the exception of the children of diplomats.

At the turn of the century, President Grover Cleveland indirectly challenged birthright citizenship during his administration by attempting to deny a U.S.-born citizen of Chinese descent to come back to the U.S.. That triggered the landmark Supreme Court U.S. vs Wong Kim Ark case in 1898, which firmly established the principle of birthright citizenship under the 14th Amendment, a precedent that’s been unchanged for more than 125 years.

“The history of the 14th amendment, taken in conjunction with the long-standing and undisturbed ruling in 1898 are very clear,” said Damon-Feng.

But Trump is arguing that undocumented parents and temporary visa holders are not subject to U.S. jurisdiction, making their newborns ineligible for birthright citizenship. He ordered federal agencies to withhold passports and other official documents from them. He said during his campaign it would serve as a deterrent to irregular immigration.

The executive order has sparked outrage amid advocates and lawyers who say it’s an attack on the very principles upon which the United States was founded. Over a dozen states and and multiple immigrants- and civil-rights groups have sued the Trump administration in several jurisdictions, including in the district courts that issued the injunctions Trump is challenging.

In one ruling from last month blocking the order in Boston, Judge Leo Sorokin said that the “Constitution confers birthright citizenship broadly,” including to the children Trump wanted to exclude from receiving citizenship.

Legal experts in the United States largely agree with this interpretation. However, some conservative scholars — sometimes characterized as on the fringes of American legal scholarship — affirm that the Trump administration could make a winning case to limit birthright citizenship.

The effort to redefine the 14th Amendment reflects a growing push among Trump-minded Republicans to challenge long-standing interpretations of constitutional rights and reshape U.S. immigration law. But while public opinion has swayed towards Trump on border security and deportations, polling shows that a majority of Americans disapprove of the president’s position on modifying birthright citizenship, with a recent Pew survey measuring 56% opposed to his executive order and just 43% in favor.

“It’s never been about the status of your parents,” said Damon-Feng. “The constitutional argument in favor of birthright citizenship is quite strong.”