The Supreme Court has appeared skeptical of President Donald Trump executive order limiting birthright citizenship, a sign the justices could strike down a key element of his immigration agenda.
A majority of the court seemed unconvinced the US should stop granting citizenship to children of undocumented immigrants and some temporary US visitors.
The administration has argued that limiting birthright citizenship is necessary to rein in illegal immigration. Opponents argue it would upend more than a century of precedent and unravel a cornerstone of US immigration law.
Trump attended the oral arguments on Wednesday, a rare move by a sitting president that underscored the case’s high stakes.
A defeat for the Republican president would mark a second straight setback at the high court, following the decision last month that invalidated his global tariffs. A win would help Trump deliver on his pledge to reshape America’s immigration policies.
During more than two hours of arguments, US Solicitor General John Sauer sought to convince the justices that the 14th Amendment – which establishes birthright citizenship and was extended to formerly enslaved people – and subsequent court rulings and laws passed by Congress all mistakenly expanded birthright citizenship.
Chief Justice John Roberts, a key swing vote on the court, questioned Trump’s authority to exclude children of undocumented immigrants from receiving US citizenship.
“I’m not quite sure how you can get to that big group,” Roberts said.
The oral arguments turned on a key clause in the 14th Amendment, which grants citizenship to all people born or naturalized in the US who are “subject to the jurisdiction thereof”.
Sauer argued that the clause should only apply to the children of foreign diplomats and a few other limited groups.
Parents who are in the country illegally when their children are born have “allegiance” to their home countries and therefore don’t fall under the jurisdiction of US law, he said.
“Jurisdiction means allegiance,” Sauer said. Citing a previous court opinion, he later argued that “permanent residence and domicile decides [citizenship]. That’s what the court should be bound by.”
But several justices said that interpretation would fundamentally reshape how Americans and people worldwide understand the US birthright citizenship process.
Justice Elena Kagan said the administration was seeking to undo a legal tradition of birthright citizenship that dates back to English common law.
“What the 14th Amendment did was accept that tradition and not attempt to put any limitations on it. That was the clear rationale,” the liberal justice said.
Several justices also pointed to the 1898 Supreme Court ruling, United States Wong Kim Ark, the landmark decision that upheld birthright citizenship in the case of a child born to Chinese immigrants living in the US.
Cecillia Wang, an ACLU attorney representing the plaintiffs in court on Wednesday, used the decision to argue that Trump’s executive order should be overturned.
“If we agree with you how to read Wong Kim Ark, then you win,” Justice Brett Kavanaugh said. “That could be just a short opinion.”
Also Read: Judge blocks Trump birthright citizenship order
Whether the court ultimately issues a broad or narrow opinion remains to be seen. The difference between a sweeping ruling on constitutional grounds versus a more tailored opinion on statutory grounds is a critical one, legal experts said.
The justices could choose to focus on a 1952 law passed by Congress that codified birthright citizenship and not wade into the larger constitutional debate, said Stephen Yale-Loehr, an immigration law expert.
“The court does not like to rule on constitutional issues if it doesn’t have to,” Yale-Loehr said. “The court could argue that the Trump executive order is invalid on statutory grounds.”
The justices are expected to issue their decision in June.
It would be the first major immigration case decided by the court on its merits since Trump started his second term.
The court has taken up other immigration cases, but has so far sent them back to lower courts for further review.
Trump’s push to end birthright citizenship is one part of his larger immigration crackdown.
But it’s nevertheless a longtime goal of many on the right, and something Trump has supported since his first term in office.
A victory in this case would help Trump make the case that he is delivering on his campaign pledge to limit illegal immigration.
A loss would be a setback to Trump’s immigration agenda.
But it would also represent a larger blow to his efforts to aggressively expand executive power since returning to office.
The ruling in February overturning Trump’s sweeping global tariffs showed that the justices are not willing to give Trump a blank cheque to bypass Congress and the courts.
Trump signaled his interest in the case by attending arguments on Wednesday.
Critics said his appearance was an improper effort to influence the court on a decision with major repercussions for his domestic policy.
“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” Trump said incorrectly on social media after leaving the court.
Speaking at a White House Easter luncheon later on Wednesday, Trump said birthright citizenship was passed after the Civil War “for the babies of slaves”.
Challenging the administration’s efforts to dismantle birthright citizenship, the legal principle guaranteed by the 14th Amendment argued that, babies born in the United States are U.S. citizens highlighting how Trump’s executive order flouts the Constitution’s dictates, longstanding Supreme Court precedent, a statute passed by Congress, and fundamental American values.
Courts have uniformly blocked the Trump administration from implementing the executive order. A Supreme Court decision is expected by the end of June or early July.
BBC
