Supreme Court debates Trump's efforts to limit birthright citizenship

WASHINGTON − The Supreme Court on May 15 wrestled with whether to let President Donald Trump broadly enforce his changes to birthright citizenship as courts consider whether those changes are constitutional.

The justices seemed to pose tougher questions to the Trump administration's lawyers than to lawyers for the states and immigrants’ rights advocates challenging Trump’s executive order.

But they also probed whether there’s an alternative to the national injunctions that district courts have issued, which put the order on hold while it’s being litigated.

Chief Justice John Roberts noted that the court can quickly take up the underlying issue of whether Trump's order banning birthright citizenship is constitutional.

“Is there any reason, in this case, we would not be able to act expeditiously?” he asked Solicitor General John Sauer.

Justice Elena Kagan said the government was trying to avoid a high court ruling on constitutionality while denying citizenship to children born to parents who are undocumented immigrants.

“You just keep on losing in the lower courts,” she told Sauer. “What’s supposed to happen to prevent that?”

Federal district judges across the United States have ruled the policy will likely be found unconstitutional when it's fully litigated, so, in the meantime, while the case plays out in court, Trump cannot enforce it.

The Trump administration argues the executive order he signed on his first day back in office can only be paused for the people who are challenging the president's executive order.

The states, immigrants' rights groups and expectant parents who successfully sought national injunctions say they're the only way to prevent a chaotic patchwork of citizenship rules across the country.

How the high court rules will affect not only whether birthright citizenship will be curtailed at least temporarily, but also whether it will be harder for judges to pause other Trump initiatives.

Here's a summary of updates, as they happened.

State Attorneys General confident after oral arguments

New Jersey Attorney General Matthew Platkin said he was confident the justices would side with his team of Democratic attorneys general, even after the justices posed prickly procedural questions.

“We’ve been consistent as states on this,” Platkin said. “We have said for years that universal Injunctions should be held to limited circumstances. But clearly, those limited circumstances include a case where the president, with a Sharpie, rewrites the 14th Amendment.”William Tong, attorney general of Connecticut, said the issue is personal to him and other children of immigrants.“For the last couple of hours, we talked about, we discussed, we debated, really important legal questions, constitutional questions,” Tong said. “But I just want to refocus on how personal this issue is.”– Savannah Kuchar

Sauer: Fix for national injunctions 'extremely urgent'

Solicitor General John Sauer urged the Supreme Court not to tinker with limits on nationwide injunctions because of the flood of 40 blocks federal judges around the country have placed on the Trump administration policies during its first four months.

“That is an extremely urgent question,” Sauer said.

He said principles of limiting the injunctions “have all proven to be completely ineffective in slowing the essentially slaughter, flood or cascade of universal injunctions that we see in these cases.”

Sauer also argued in his summation that the government could eventually win its case to bar birthright citizenship for children of undocumented immigrants.

“The suggestion that our position on the merits is weak is profoundly mistaken,” Sauer said.

– Bart Jansen

Alito: Can justices rule on injunction without considering birthright?

Justice Samuel Alito asked the lawyer for 16 individuals fighting the Trump policy whether the justices could decide the case about nationwide injunctions without making up their minds about whether birthright citizenship should continue.

“I think that we would be very eager to do supplemental briefing on that,” said lawyer Kelsi Corkran. “We couldn’t because we keep winning,” she said, to laughter in the courtroom.

Alito said she wasn’t answering his question. Corkran then said the underlying birthright issue is embedded in whether there is a block on Trump’s policy.

“I think it’s very difficult, if not impossible, for the court to provide meaningful… analysis without taking into account the fact that the government is asking the court to allow it to ignore this court’s precedent, to ignore a duly enacted statute and upend 100 years of executive branch practice,” Corkran said.

– Bart Jansen

Patchwork could make some states magnets for giving birth

Justice Elena Kagan said if the high court ruling creates a patchwork of citizenship policies among states, some states could become magnets, as a place for migrants who are pregnant to give birth.

“It strikes me as completely obvious,” Kagan said.

New Jersey Solicitor General Jeremy Feigenbaum said that is part of why the high court should issue a nationwide court ruling. Beyond the temporary injunctions that have blocked Trump’s policy, Feigenbaum argued the justices should look at the merits of the case because the president seeks to deny citizenship to children who don't have at least one parent who is a citizen or legal permanent resident.

Feigenbaum said the Supreme Court upheld birthright citizenship in 1898 and Congress codified the policy in 1940 and 1952.

“I don’t think this is a close case for why we need national relief,” Feigenbaum said.

– Bart Jansen

Barrett asks if there are other ways to help states

Justice Amy Coney Barrett asked if there’s a way to stop states from being adversely affected without a universal injunction.

Jeremy Feigenbaum, New Jersey’s solicitor general, said if the Justice Department wants to suggest alternatives, it must raise them in the lower courts. And that has to include an explanation of how their alternative would work practically and legally.

– Maureen Groppe

Alito questions nationwide injunctions from individual judges

Justice Samuel Alito asked a lawyer for the states challenging the Trump policy to focus on nationwide injunctions, in which one of the 680 federal district judges, "who are monarchs of their realm," could issue an order binding the entire country.

“They are dedicated and they are scholarly, and I’m not impugning their motives in any way, but you know, sometimes they are wrong,” Alito said. “All Article 3 judges are vulnerable to an occupational disease, which is the disease of thinking ‘I am right and I can do whatever I want.’”

– Bart Jansen

Democrats take protest podium

A handful of Democratic lawmakers stopped by to share remarks with protesters outside the Supreme Court, including former House Speaker Nancy Pelosi.“For the children, si se puede,” Pelosi told the crowd, setting off cheers from some in the crowd. Yes, it can be done.Others in the crowd expressed their displeasure with Democrats in Congress, following Pelosi and her security as she exited the protest, chanting “Do your job.”– Savannah Kuchar

New Jersey solicitor general warns of 'unprecedented chaos'

Jeremy Feigenbaum, New Jersey’s solicitor general, who is arguing on behalf of states challenging the executive order ending birthright citizenship, said there are no alternatives to universal injunctions that would help states in this case.

States, he noted to the justices, can’t file class action suits.

“I don’t see how it can be the answer for us,” he said.

And states face serious burdens when administering benefits and programs under the executive order, Feigenbaum argued. Federal law, for example, requires states to verify citizenship for Medicaid benefits.

Letting it go into effect would produce “unprecedented chaos,” he said.

“We genuinely don’t know how this could possibly work on the ground,” he said.

–Maureen Groppe

Brown says nationwide injunctions spur government action

Justice Ketanji Brown Jackson said that universal injunctions force the government to appeal cases faster when policies are blocked.

“That’s actually what we would want,” Jackson said.

Solicitor General John Sauer said the high court should only consider complicated cases after they have percolated through district and appeals courts.

“Percolation of novel, sensitive constitutional issues is a merit of our system,” Sauer said. “It is not a bad feature of the system.”

– Bart Jansen

Attorney for New Jersey highlights unanswered administrative questions

Jeremy Feigenbaum, New Jersey’s solicitor general, said in his opening remarks that the nation has never allowed citizenship to vary by state. That would happen if the Supreme Court said Trump’s policy were on hold only in the states that challenged it.

The result, he said, would raise serious and unanswered administrative questions for both the federal government and the states.

And the Justice Department’s argument that courts need more time to consider whether Trump’s order is constitutional overlooks the fact that the Supreme Court has already weighed in on this.

– Maureen Groppe

Sauer says government could refuse to obey appeals court decisions

Justice Amy Coney Barrett asked whether the government would obey an appeals court ruling or ignore it before the Supreme Court decides a thorny case.

“You resisted Justice Kagan when she asked you whether the government would obey within the 2nd Circuit a precedent,” Coney Barrett said.

Solicitor General John Sauer refused to categorically say the government would obey an appeals court ruling in the states where it applied. He said there could be cases where the government is trying to get an appeals decision overruled.

“Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice,” Sauer said. “We generally respect circuit precedent, but not necessarily in every case.”

– Bart Jansen

Barrett questions why the administration didn’t ask the court to rule on constitutionality

Justice Amy Coney Barrett pressed Solicitor General John Sauer on why the administration didn’t ask the Supreme Court to decide whether Trump’s order was constitutional.

Sauer said the case illustrated “fast and furious” decision-making by courts, and that Trump’s executive order required more time for courts to assess.

When Barrett pointed out that the government had asked the Supreme Court to leap ahead and decide the underlying issue in other cases, Sauer said those were more clear-cut situations.

And here, he emphasized, it’s “imperative” that the court address what happens to the order as it's being fully litigated.

– Maureen Groppe

Kavanaugh asks what happens if order goes into effect

Justice Brett Kavanaugh asked about the practical effects of the executive order going into effect if the Supreme Court sides with the administration.

What do hospitals and states do with newborns the next day? he asked.

Solicitor General John Saur said federal officials would have to figure that out.

“How?” Kavanaugh asked. “You think they can get it together in time?”

– Maureen Groppe

Kagan: Trump will ‘keep on losing’ on barring birthright citizenship

Justice Elena Kagan predicted the government would continue to avoid a high court ruling while denying citizenship to children born to parents who are undocumented immigrants, while multiple cases are litigated.

“If I were in your shoes, there’s no way I would approach the Supreme Court with this case,” Kagan said. “You just keep on losing in the lower courts. What’s supposed to happen to prevent that?”

Sauer said he “respectfully disagreed with that forecast on the merits,” but said other litigants could bring more cases.

“We have only had snap judgments,” Sauer said. “Our arguments are compelling.”

– Bart Jansen

Sotomayor asks about deciding the underlying constitutional question

Justice Sonia Sotomayor asked why the Supreme Court shouldn’t just decide now whether Trump’s executive order is constitutional.

Solicitor General John Sauer said that would leap ahead of the usual process of having lower courts grapple with the issue before the Supreme Court weighs in. The benefit of that is having the issue fully aired before a final judgment, he said.

When Sotomayor said the lower courts have been unanimous in their view that the executive order is likely unconstitutional, Sauer said the judges have been making “snap judgments.”

– Maureen Groppe

Roberts says Supreme Court can move ‘expeditiously’

In a direct rebuttal to Kagan, Chief Justice John Roberts suggested the Supreme Court could act faster than the five years she said it could take to reach decisions.

“We’ve been able to move much more expeditiously,” Roberts said, noting a decision in the TikTok case took only a month. “Is there any reason in this case we would not be able to act expeditiously?”

“Absolutely not,” Sauer replied.

–Bart Jansen

Kagan says high court rulings could take years without temporary blocks on policies

Justice Elena Kagan argued it could take five years for the Supreme Court to reach a decision in the birthright case, which would leave confusion in the meantime if Trump’s policy weren’t blocked while the case was litigated.

“How else are we going to get to the right result here, which is one by assumption that the (executive order) is illegal?” Kagan asked.

“That would be a profoundly wrong result,” Solicitor General John Sauer replied.

– Bart Jansen

Justice Thomas says universal injunctions used to be uncommon

Justice Clarence Thomas, who has been critical of universal injunctions, tried to emphasize that they don’t have a long history.

“We survived until the 1960s without universal injunctions,” he said.

– Maureen Groppe

Crowd of immigrant rights advocates amasses in front of the Court

The crowd in front of the Supreme Court has swelled in size since justices began arguments in the case related to Trump’s birthright citizenship challenge.Protesters with microphones led chants of “mighty mighty immigrants” and “si se puede.”Shanta Driver, an immigrant rights lawyer and national chair of the advocacy group By  Any Means Necessary, said that if justices side with the Trump administration in this case, there would be an untenable patchwork of citizenship laws between states.“This would mean abandoning having a national standard, which is what the 14th Amendment is,” Driver said.And, she added, a decision in favor of President Trump’s order would be a regression for the country.“It is going back to the time before the Civil War,” Driver said. “And what we're talking about is instead of victimizing and brutalizing slaves, victimizing and brutalizing immigrant communities and individuals in those communities.”– Savannah Kuchar

Gorsuch asks about patchwork system of citizenship

Justice Neil Gorsuch asked about the concern that narrowing the injunction would leave a patchwork system of citizenship across the country.

Solicitor General John Sauer said that’s a problem for the administration to deal with, not a reason to keep the national injunction in place.

When asked about other options for broad rulings, Sauer said challengers can try filing a class action lawsuit. But he wouldn’t concede that the challengers could do so in this case.

– Maureen Groppe

Brown Jackson questioned how courts help multiple victims with only one litigant

Justice Ketanji Brown Jackson asked whether a court could order a manufacturer to stop the pollution harming just one person who filed a lawsuit or to halt the pollution for a broader range of neighbors.

“In many, many, many circumstances we have not required the court to limit their relief to a particular plaintiff,” she said.

Sauer said more plaintiffs could file lawsuits or judges could order relief for a broader class of people harmed.

“It is a feature, not a bug of Article 3 that the courts grant relief for the people in front of them,” Sauer said.

– Bart Jansen

Roberts probes uses of national injunctions

Chief Justice John Roberts brought up racial gerrymandering, one of the examples the challengers have given for why courts need to be able to issue orders with broad remedies.

Roberts asked Solicitor General John Sauer how racial gerrymandering would be addressed without universal injunctions. When a court decides that the boundaries of a congressional district were improperly drawn, that affects everyone in the state, he said.

Sauder said court decisions may have collateral consequences. But that’s different from letting judges intentionally stop policies from affecting anyone.

–Maureen Groppe

Sotomayor says Trump injunction argument ‘makes no sense’

Justice Sonia Sotomayor said Trump’s argument that federal courts can’t order nationwide injunctions beyond the litigants of specific cases would mean even the Supreme Court couldn’t make such orders.

“That makes no sense whatsoever,” Sotomayor said. “What are we buying into?”

Sauer said lower courts could order remedies for specific litigants and potentially seek broader impact through a class action.

– Bart Jansen

Sauer argues nationwide injunctions encourage ‘forum shopping’

Solicitor General John Sauer told the justices that Trump’s order restored the meaning of the 14th Amendment, but federal courts then unfairly blocked the policy nationwide.

Sauer said judges in 40 lawsuits against Trump policies have ordered nationwide injunctions, including 35 in five districts. Sauer argued that litigants choose districts where they think they can win, and then rulings spread unjustifiably nationwide.

“This is a bipartisan problem that has now spanned the last five presidential administrations,” Sauer said. “They encourage rampant forum shopping.”

– Bart Jansen

Would Trump’s executive order apply retroactively?

Trump directed government agencies to stop issuing or accepting documents recognizing the citizenship of children born in the U.S. to parents who are not authorized to be in the country or are here temporarily. That part of the order would apply only to those born 30 days after Trump signed the order.

But lawyers for the immigrant rights groups challenging the order say there’s no time limit on the order’s redefinition of birthright citizenship.

The government could say that U.S. birth certificates no longer serve as proof of citizenship, even if they were issued more than a century ago, they told the Supreme Court in a filing.

“A 70-year-old could show up to vote, or to renew a passport, or to adjust Social Security benefits, only to be told she was never a citizen,” they wrote. “The government does nothing to disclaim these possibilities.”

– Maureen Groppe

Protesters gather for marquee birthright arguments

Dozens of protesters gathered outside the Supreme Court in anticipation of arguments this morning.Several held signs with statements such as, “American Born Children are American Children” and “Defend the Constitution,” in support of birthright citizenship and language in the 14th Amendment.

There appear to be no counter protesters among the crowd standing in front of the white marble steps.– Savannah Kuchar

Which countries have birthright citizenship?

Birthright citizenship was baked into the United States Constitution, challenged in the 1800s and reaffirmed by the Supreme Court. Countries in the Americas largely followed the United States' example, which bucked the restrictions enshrined in Europe, Africa and Asia.

Every country in North America and South America – except Colombia and the Dominican Republic – provides birthright citizenship to any person born within its borders, according to World Population Review, which created a map of birthright citizenship around the globe.

Colombia offers birthright citizenship as long as one parent is a citizen or legal resident; the Dominican Republic restricted birthright citizenship in a way that excludes the children of Haitian migrant workers.

European countries restrict birthright citizenship, including Spain, Italy, France and Germany, as do India, Iran and Sudan, among others, according to World Population Review.

“Granting citizenship to all children born in a country’s territory became more common in the Americas,” according to an American Immigration Council report on birthright citizenship. “After the founding of the United States, other countries in the Western Hemisphere also adopted unrestricted birthplace-based citizenship.”

– Lauren Villagran

Birthright argument, once at fringe, takes spotlight

The debate at the heart of the case – questioning the 150-year constitutional principle that children born in the United States are citizens – has long been thought a fringe argument.

But it has grabbed the spotlight under President Donald Trump’s executive order, with a nudge from one of the lawyers charged with helping him try to overturn the 2020 election.

The 14th Amendment, ratified after the Civil War in 1868, declared: “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 Supreme Court upheld the amendment in 1898, in the case of a man born in San Francisco to Chinese parents.But John Eastman, a lawyer at the conservative think tank Claremont Institute, has been arguing for more than 20 years that the high court’s decision was narrower than most people think.

The amendment was never intended to cover the children of diplomats. Eastman contends the 1898 Supreme Court decision confirmed citizenship only to the children of parents living permanently in the U.S., not children of non-citizens temporarily in the country.

Trump’s order would bar the government from recognizing the citizenship of children born to two undocumented immigrants.

Eastman, who was charged in Arizona and Georgia with trying to help Trump overturn the 2020 election, filed his argument about birthright citizenship in a 2004 Supreme case and again in this case. Eastman argued that lower courts approving the citizenship of undocumented migrants or temporary visitors were “patently erroneous.”

“This Court has never held that the children born on U.S. soil to temporary visitors or illegal aliens are automatic citizens,” Eastman wrote.– Bart Jansen

Birthright order is part of Trump’s broader immigration crackdown

President Donald Trump’s order on the first day of his second term to limit birthright citizenship was just one part of his strategy to strengthen border security.

Other Trump orders that are being challenged in court include:

• Invoking the 1798 Alien Enemies Act to hasten the deportation of alleged members of gangs declared foreign terrorists.
• Ending temporary programs that allow work permits and protection from deportation for migrants from Cuba, Haiti, Nicaragua and Venezuela.
• Overhauling asylum cases, with applicants no longer allowed to await their decisions in the U.S.

In the Supreme Court case, Trump ordered the government not to recognize the citizenship of children born to undocumented immigrant parents. Lower courts have blocked the order thus far, but the justices could decide whether nationwide injunctions of this sort are justified and whether his order is legally sound.

“It had nothing to do with Illegal Immigration for people wanting to SCAM our Country, from all parts of the World, which they have done for many years,” Trump wrote on social media May 15.

– Bart Jansen

Trump urges Supreme Court to limit birthright citizenship

President Donald Trump alerted his followers on social media on May 15 about the Supreme Court case, saying the constitutional amendment he seeks to limit was never intended to grant citizenship to people temporarily in the country.

“Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!” Trump wrote.

Trump wrote that the amendment ratified in 1868 was intended to apply only to "the BABIES OF SLAVES." Despite a 150-year tradition of granting citizenship to everyone born in the United States, Trump said it was never intended for the children of undocumented immigrants or temporary visitors.

“It had nothing to do with Illegal Immigration for people wanting to SCAM our Country, from all parts of the World, which they have done for many years,” Trump wrote.

– Bart Jansen

Who is arguing the case for those challenging Trump's executive order?

Jeremy Feigenbaum, New Jersey’s solicitor general, is representing the states challenging Trump’s executive order. Feigenbaum clerked for Justice Elena Kagan.

Kelsi Corkran, the Supreme Court director at Georgetown’s Institute for Constitutional Advocacy and Protection, is arguing on behalf of expectant mothers and immigrants’ rights groups. Corkran clerked for Justice Ruth Bader Ginsburg.

– Maureen Groppe

Who is arguing the case for the Trump administration?

Solicitor General John Sauer, the government’s top lawyer on Supreme Court matters, is representing the Trump administration.

Sauer, who clerked for the late Justice Antonin Scalia, is a former federal prosecutor and former solicitor general of Missouri.

He represented Trump in last year’s blockbuster case about presidential immunity.

– Maureen Groppe

Have the justices addressed national injunctions before?

Some Supreme Court justices have expressed displeasure with universal injunctions, especially Justice Neil Gorsuch, one of the court’s six conservative justices.

Five years ago, Gorsuch called them “unworkable” and said it had become apparent his colleagues must address them.

“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them,” he wrote in 2020 after the court blocked an injunction against a Trump-era immigration policy.

During public remarks in 2022, Justice Elena Kagan – one of the court’s three liberal justices − spoke out against sweeping injunctions and the ability of challengers to find one friendly judge to issue such an order.

“In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas,” she said. “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”

– Maureen Groppe

How common are national injunctions?

Legal scholars say national injunctions began to plague both Democratic and Republican presidents beginning in 2015 when Texas sued the Obama administration to stop an expansion of a program protecting young immigrants from deportation if they were brought to the United States illegally as children.

That was one of a dozen nationwide injunctions President Barack Obama faced during his presidency, according to a 2024 Harvard Law Review article.

President Joe Biden dealt with 14 through his first three years, including a Texas judge’s order blocking his requirement that federal workers be vaccinated for COVID-19.

Trump, however, faced 64 injunctions during his first term. And judges have been issuing injunctions at a pace to surpass that as courts deal with the more than 200 lawsuits that have been filed against the administration.

– Maureen Groppe

Why are today's oral arguments unusual?

It’s rare for the Supreme Court to hear oral arguments on emergency requests, which are usually decided after the justices consider limited written arguments.

They've done so only four times since 1971.

Oral arguments not only give the justices a chance to question both sides but also enable the public to get a sense of how they’re considering the case.

And the justices’ decision is expected to be explained more fully than the orders they issue on most emergency requests.

– Maureen Groppe

How has the Trump administration fared before the Supreme Court?

A divided Supreme Court gave Trump a big win on May 6, ruling that the administration can enforce the president’s ban on transgender people serving in the military while court challenges continue.

The majority did not explain their decision or touch on whether they are receptive to the administration’s complaints about national injunctions.

In other emergency filings, the court sided with the administration after federal judges ordered probationary workers to be rehired and teacher training grants to be resumed.

But a 5-4 majority said the administration had to pay foreign aid groups for work already completed.

And in a deportation case, the court said migrants had to use a different procedure to challenge their deportations, but also said the administration had to give them an opportunity to do so.  

– Maureen Groppe