Law: The battle over birthright citizenship

A woman holds her baby as a crowd gathers outside the Supreme Court in protests against Trump's policy to end birthright citizenship

President Trump is hoping that a "bit of legal chicanery" will let him shred birthright citizenship

(Image credit: Matt McClain / The Washington Post via Getty Images)

President Trump is hoping that "a bit of legal chicanery" will let him shred birthright citizenship, said Stephen I. Vladeck in The New York Times. Three federal judges have barred the administration from enforcing his January executive order, which—in a clear violation of the 14th Amendment—would deny U.S. citizenship to the children of undocumented migrants. But during oral arguments at the Supreme Court last week, administration lawyers didn't ask the justices to rule Trump's order legal. Instead, they asked the high court to scrap "the use of nationwide injunctions." If the justices agree, lower courts would be able to block government agents only from acting against individual plaintiffs. Such a ruling would mean that, as this case progresses, children born to immigrants could be denied citizenship for any number of reasons, including "the status of their parents' lawsuits." Meanwhile, nationwide freezes issued by judges on other Trump policies, such as the mass firings of government workers, would be voided.

The Constitution is clear that "all persons born or naturalized" in the U.S. are American citizens, said Dan McLaughlin in National Review. But there are "practical and jurisprudential arguments" against nationwide injunctions, as both liberal and conservative justices have long noted. Those orders "encourage forum shopping for favorable judges"— Republicans seeking out red-state judges under Democratic presidents and vice versa. They're also "asymmetrical." If the government wins nine times out of 10 on an issue, the "people who lost the first nine cases still get to win" if their one victory results in a policy being blocked across the country.

Executive overreach is the "actual problem here," said Adam Serwer in The Atlantic. Solicitor General D. John Sauer complained to the Supreme Court that nearly 40 injunctions have been issued against the administration to date; the Obama administration received 12 in eight years. But that's what happens when an "out-of-control" president "ignores constitutional restraints." The court seems to recognize the need to bolster those restraints, said Noah Feldman in Bloomberg. Conservative Justices Amy Coney Barrett and Neil Gorsuch both grilled Sauer on whether scrapping universal injunctions would let unlawful executive orders remain in effect and cause "real-world harm." That suggests the court will find a way to allow nationwide injunctions on the most "egregious executive actions"—and that the justices finally understand the importance of protecting "the rule of law from Trump's threat."