On Day One of the second Trump administration, one of several executive orders signed by President Donald Trump addressed the issue of birthright citizenship. Titled “Protecting the Meaning and Value of American Citizenship,” the order asserts that:
[T]he Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
The order goes on to provide:
Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
GAME ON: Trump Takes a Hammer to Birthright Citizenship, Says ‘People Have Wanted This For Decades’
The ink hadn’t dried on President Trump’s Sharpie signature before the order was being challenged in court. Suits were filed by a host of challengers in Washington state, Maryland, and Massachusetts.
By Thursday of Trump’s first week in office, a federal judge in Washington issued a temporary restraining order (TRO) on the measure, blocking its effect nationwide, and later entered a preliminary injunction on the matter.
It Begins: 18 States Sue to Block Trump’s Birthright Citizenship Ban
BREAKING: Federal Judge Rules on Trump’s Birthright Citizenship Executive Order
The administration appealed and was, unsurprisingly, shot down by the Ninth Circuit Court of Appeals. A similar pattern followed for the Maryland and Massachusetts cases, with each court issuing a nationwide injunction as to the executive order.
Now, the administration is asking the Supreme Court to weigh in on the matter.
The Trump administration asked the Supreme Court on Thursday to intervene and allow a narrow version of his executive order banning birthright citizenship to move forward, challenging three nationwide injunctions brought in Maryland, Massachusetts and Washington state.
…
In the court filing Thursday, acting U.S. Solicitor General Sarah Harris said the courts had gone too far, and asked the Supreme Court justices to limit the scope of the rulings to cover only individuals directly impacted by the relevant courts.
“These cases – which involve challenges to the President’s January 20, 2025 Executive Order concerning birthright citizenship – raise important constitutional questions with major ramifications for securing the border,” Harris wrote.
“But at this stage, the government comes to this Court with a ‘modest’ request: while the parties litigate weighty merits questions, the Court should ‘restrict the scope’ of multiple preliminary injunctions that ‘purpor[t] to cover every person in the country,’ limiting those injunctions to parties actually within the courts’ power.”
On its face, the administration’s application for a partial stay simply asks the Supreme Court to narrow the scope of the injunctions as to birthright citizenship (rather than decide the merits of the argument at this juncture). But the application also seeks to strike at the heart of an even larger issue — the explosion of universal injunctions being issued in recent years.
The rationale is spelled out succinctly in the application’s next-to-last paragraph:
There are “more than 1,000 active and senior district court judges, sitting across 94 judicial districts.” DHS, 140 S. Ct. at 600-601 (Gorsuch, J., concurring). Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere. The sooner universal injunctions are “eliminated root and branch,” “the better.” Arizona, 40 F.4th at 398 (Sutton, C.J., concurring)
If nothing else, the Trump administration is prompting a thorough examination of the separation of powers and the scope of executive authority. We’ll, of course, continue to follow this case and provide any updates as they become available.
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