By Andrew Chung
(Reuters) -One of President Donald Trump’s most contentious policies – his attempt to restrict automatic birthright citizenship – arrives at the U.S. Supreme Court this week with an unusual twist: The justices may focus on something else entirely.
Federal judges in Washington state, Massachusetts and Maryland issued orders blocking Trump’s January executive order nationwide, finding the directive likely violated language in the U.S. Constitution concerning citizenship for babies born in the United States.
But through an emergency filing, Trump’s administration has focused the Supreme Court’s attention not on the legality of the action by the Republican president but rather on the permissibility of the actions by the three judges – whether federal judges should have the power to issue broad orders that block challenged polices on a nationwide, or “universal,” basis.
The administration asked the court to narrow the injunctions to let the government enforce Trump’s directive – part of his hardline approach to immigration – to the greatest extent possible while the legal fight over the policy plays out.
The court may do so “without considering the underlying merits” of Trump’s action, the administration asserted.
That approach would set up the possibility of the court, which has as a 6-3 conservative majority, allowing broad enforcement of the policy without assessing whether or not it is legal.
The matter came to the court on a compressed timeline and with minimal written briefing.
The way the court is considering the case “seems quite strange,” said Alan Trammell, a professor at Washington and Lee University School of Law in Virginia, because “even though the substantive question of birthright citizenship technically isn’t before the court, it still looms large.”
“It concerns one of the most important provisions of the Constitution and implicates a raging political debate,” Trammell said.
Trump’s order, signed on his first day back in office, directed federal agencies to refuse to recognize the citizenship of U.S.-born children who do not have at least one parent who is an American citizen or lawful permanent resident.
Trump’s order was challenged by Democratic attorneys general from 22 states as well as individual pregnant immigrants and advocacy groups. The plaintiffs have said the directive violates a right enshrined in the U.S. Constitution’s 14th Amendment, which was ratified in 1868 and long has been understood to confer citizenship to virtually anyone born in the United States.
Trammell noted that the administration has not contested whether the injunctions should have been issued, asking the justices only to scale back their nationwide effect to protect just the plaintiffs in the cases.
“The situation would be very odd indeed if the court concluded that the plaintiffs’ view of the merits is correct, yet gave only the individual plaintiffs the benefit of that ruling,” Trammell said.
‘BIRTH TOURISM’
The 14th Amendment states that 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.”
The administration contends that the 14th Amendment does not extend to immigrants who are in the country illegally or even to immigrants whose presence is lawful but temporary, such as university students or those on work visas.
Automatic birthright citizenship does not reflect the best reading of the 14th Amendment and it encourages “birth tourism” by expectant mothers traveling the United States to give birth and secure citizenship for their children, the administration argued in court filings.
At the Supreme Court, the administration has targeted only the universal scope of the injunctions, content to leave them in place to protect only the people who sued as well as the residents of the 22 states, assuming the Supreme Court finds that these states have the necessary legal standing to bring their cases. That outcome would let Trump’s order go into effect in the 28 states that did not sue, aside from any plaintiffs from those states.
The Justice Department said the issuance of broad judicial injunctions has bedeviled administrations of both parties, Republican and Democratic, and must be urgently rectified by the Supreme Court. Trump himself on March 20 called the situation “toxic” and urged the Supreme Court to act.
Since Trump returned to office, many of his numerous executive orders and other initiatives have been impeded by judges, including through universal injunctions.
“The need for this court’s intervention has become urgent as universal injunctions have reached tsunami levels,” the Justice Department said in a written filing.
If the justices agree to scale back the judicial blocks, it could lead to a nation geographically fractured between places where babies are born with automatic citizenship and places where they are not, the plaintiffs said.
“An infant would be a United States citizen and full member of society if born in New Jersey, but a deportable noncitizen if born in Tennessee,” the plaintiffs in the Maryland case told the justices.
IDAHO TRANSGENDER CASE
The Justice Department has cited the Supreme Court’s action in a case last year to back up its request to narrow the injunctions. In that case, called Labrador v. Poe, Idaho asked the justices to let the state enforce a Republican-backed ban on gender-affirming care for transgender minors after a federal judge blocked it as unconstitutional.
The Supreme Court, over the dissent of its three liberal members, granted Idaho’s request that the statewide injunction be pared back to cover only the transgender plaintiffs who actually sued.
The scope of an injunction is significant, the Justice Department told the Supreme Court, and ensuring that lower courts do not act beyond their limited judicial power “is just as critical as merits review,” meaning an assessment of an action’s legality.
A Justice Department spokesperson did not respond to a request for comment.
Some legal experts said the cases differ for numerous reasons. For instance, they said, the Idaho case involved one state, not a presidential executive order applying nationally.
Even though the administration has made the dispute primarily about universal injunctions, some court observers have said the justices could decide to rule on the legality of Trump’s order anyway.
It is unusual for the court “to be considering an emergency application in this context,” University of Chicago law professor William Baude said.
“Because of that, we won’t know what the court is going to focus on until the oral arguments start,” Baude added.
(Reporting by Andrew Chung; Editing by Will Dunham)
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