“What do hospitals do with a newborn?” Justice Brett Kavanaugh asked a Trump administration attorney. “What do states do with a newborn?”
The U.S. Supreme Court on Thursday expressed concern about the implications of letting President Donald Trump enforce an executive order that would eliminate birthright citizenship in the United States.
According to NBC News, the court recently agreed to review several of the administration’s emergency requests. Among the government’s most significant priorities is preventing lower federal courts—such as district courts and appellate panels—from enacting and enforcing nationwide injunctions.
In more than two hours of oral arguments, the justices debated whether there could be any feasible way to limit the number of nationwide injunctions against various Trump administration policies, rules, and reversals.
However, while the justices appeared somewhat open to the idea of curtailing the power of lower courts, a majority so far seem inclined to believe that a nationwide injunction is justifiable with respect to birthright citizenship-related litigation.
NBC News notes that about 22 states, led by the attorneys general of Washington state and New Jersey, are currently suing the Trump administration over the birthright citizenship order.
During oral arguments, New Jersey Solicitor General Jeremy Feigenbaum said that states need a nationwide injunction, given the clear impracticality of imposing citizenship-related restrictions in some parts of the country but not in others.
Feigenbaum said that, absent the judiciary’s intervention, there will “chaos on the ground where people’s citizenship turns on and off when you cross state lines.”
New Jersey alone has at least 6,000 babies who were born elsewhere. If the Trump administration’s request is granted, the state would most likely have to launch investigations to determine if infants born elsewhere are entitled to citizenship, and, by extension, a multitude of federal benefits and assistance programs.
Two of the court’s conservative, Trump-appointed justices—Neil Gorsuch and Amy Coney Barrett—both indicated that they were open and sympathetic to Feigenbaum’s arguments.
Speaking to Solicitor General D. John Sauer, who is representing the Trump administration, Justice Gorsuch wondered aloud why families in other states shouldn’t be entitled to the protection offered by a nationwide injunction.
“Why wouldn’t they be entitled to an injunction of the scope of the one that has currently been entered?” Gorsuch asked.
In response, Sauer claimed that such an argument could be used to justify nationwide injunctions in almost any instance. This prompted Gorsuch again to push back, particularly in the context of a case that could upend a longstanding constitutional right.
“What do you say, though, to the suggestion, [Solicitor] General, that in this particular case, those patchwork problems for, frankly, the government as well as for plaintiffs, justify broader relief?” he asked.
Conservative Justice Brett Kavanaugh, another Trump appointee, also asked Sauer how hospitals should be expected to handle situations where a baby’s legal status is unclear.
“What do hospitals do with a newborn?” he asked. “What do states do with a newborn?”
Kavanaugh also seemed skeptical that the Trump administration would be able to come up with a workable plan in the 30 days that it gave the federal government to restrict and eliminate birthright citizenship.
“You think they can get together in time?” he asked.
The only justices who seem persuaded by the administration’s arguments are Justices Samuel Alito and Clarence Thomas, both conservatives who have come under scrutiny in recent years for failing to disclose high-value gifts and services from wealthy businesspeople.
“The practical problem is that there are 680 district court judges, and they are dedicated and they are scholarly, and I’m not impugning their motives in any way,” Alito said. “But you know, sometimes they’re wrong, and all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want.”
The court, notes NBC News, has yet to address the bigger question of whether Trump’s executive order is inherently unconstitutional or otherwise unlawful.
The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, doesn’t appear to permit the type of action that Trump is trying to push, with the amendment’s very first section making what appears to be a rather unambiguous statement:
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Sources
Supreme Court appears skeptical of allowing Trump to implement birthright citizenship plan
Supreme Court Hears High-Stakes Case on Birthright Citizenship and Federal Courts’ Power
Supreme Court hears historic arguments on birthright citizenship
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