Conservative justices object to how lower courts are blocking Trump, but birthright citizenship case presents deeper issues

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — The Trump administration came to the Supreme Court on Thursday with what it called a “modest” request in its effort to end the constitutional right of birthright citizenship.

Yet over two-and-a-half hours of arguments, the ramifications of President Donald Trump’s gambit appeared anything but modest.

Justice Sonia Sotomayor, a liberal, voiced concern for “thousands of children who are going to be born without citizenship papers that could render them stateless.”

And some justices on both sides of the ideological divide appeared wary of the Trump administration request to immediately lift court orders preventing it from enforcing his executive order anywhere in the United States – yet wait months to confront the merits of his reversal of the 14th Amendment’s birthright promise.

“The president is violating an established – not just one but, by my count, four established Supreme Court precedents,” Sotomayor said.

Justice Amy Coney Barrett, a conservative, observed that the government often brings cases that challenge a lower court’s procedural move as well as the underlying constitutional issue.

“I understand it’s a separate question,” she said, “but there are plenty of times that the government comes to us and asks for both.” And, perhaps reflecting the reason Trump’s lawyers have not pressed for quick consideration of his order dissolving birthright citizenship, Barrett added, “So this one isn’t clear cut on the merits from the government?”

Solicitor General D. John Sauer acknowledged that the Trump order signed on January 20 raised a “novel” legal argument. It would deny US citizenship, and relevant passports and other documents, to children born to parents who are in the country unlawfully or on a temporary status, such as student visas.

Trump’s lawyers contend US district court judges should be prevented from widely blocking the policy as lawsuits are ongoing and before its constitutionality is ultimately resolved. Yet, the administration also has argued that the justices themselves should wait to take up the merits of the matter.

Those dual arguments left some justices frustrated Thursday, even those receptive to curtailing the power of individual US district court judges who halt administration initiatives nationwide.

Any decision diminishing the authority of lower court judges to check a president’s agenda would necessarily be a boost to Trump. Several of his moves to slash the federal workforce, restrict funding and overhaul immigration policy have been blocked by US district court judges wielding nationwide injunctions.

The initiative against birthright citizenship arises from the administration’s broader anti-immigrant effort and is crucial, Trump lawyers argued in filings, “for securing the border.”

‘Let’s assume you’re dead wrong’

Appealing a series of court decisions that blocked Trump’s plan nationwide, his lawyers have asked the court to amend the orders so that they cover only the particular individuals and groups that brought the lawsuits. That would allow Trump to enforce his initiative against children born to non-citizens in wide swaths of the country.

Liberal Justice Elena Kagan highlighted the risk of allowing an arguably unconstitutional policy to take effect in many parts of the country.

“Let’s assume you’re dead wrong,” on the constitutionality of the underlying order against birthright citizenship, Kagan said, positing that it would eventually be struck down. “Does every single person that is affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is … the rule that we’ve historically applied?”

Justice Neil Gorsuch echoed interest in swiftly resolving the larger constitutional question, although he has long argued for an end to the kind of “nationwide injunctions” lower court judges imposed to block the Trump policy.

“How do you suggest we reach this case on the merits expeditiously?” Gorsuch asked Sauer.

“We think this case is one that cries out for percolation, that the court should allow lower courts to address the merits issue multiple times,” Sauer said, adding that three regional US appellate courts are currently receiving filings on the constitutional issue.

For his part, Chief Justice John Roberts seemed unconcerned about possibly protracted litigation. “We’ve been able to move much more expeditiously,” he said, noting that the justices fast-tracked a dispute over federal legislation to shut down TikTok earlier this year.

Roberts suggested that as lower court decisions over Trump’s birthright citizenship order were appealed up the rungs of the federal judiciary, “this court can issue a decision, and it will bind everything else.”

Addressing Sauer, Roberts said, “Is there any reason in this particular litigation that we would be unable to act expeditiously?”

“Absolutely not, Mr. Chief Justice,” Sauer said.

Supreme Court’s precedent dates to 1898

The Supreme Court is dominated by conservatives, 6-3, and the majority has been open to expansive executive power. Several justices have also chafed at US district court orders that target presidential initiatives and sweep widely beyond the individual parties to the case.

Department of Justice officials say such nationwide orders have “reached epidemic proportions.”

Yet, the presidential policy at the heart of Thursday’s case involves a longstanding American guarantee embodied in the 14th Amendment, that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

The amendment, ratified in 1868, has been reinforced by Supreme Court precedent that dates to 1898. That case was brought by Wong Kim Ark, born in the US of Chinese nationals, and it stands for the proposition that the 14th Amendment guarantees citizenship for anyone born or naturalized here unless their parents fall under such narrow exceptions as foreign diplomats or soldiers of invading armies.

New Jersey Solicitor General Jeremy Feigenbaum, representing 22 states challenging the Trump administration, told the justices its approach would mean citizenship could “turn on and off when someone crosses state lines” and moved between places where the Trump order was enforced or blocked.

Justice Brett Kavanaugh drilled down on a separate practical consequence of the administration’s plan, pressing Sauer on how quickly the administration, if it prevailed, might implement its order within the 30-day “ramp-up period.”

“What do hospitals do with a newborn, what do states do with a newborn?” Kavanaugh asked, regarding citizenship-related documents. As Sauer offered vague answers about federal officials who would “figure it out,” Kavanaugh expressed frustration.

But Kavanaugh also homed in, as the other conservatives did, on whether lower court judges have unjustly curbed executive power.

Kavanaugh, who worked in the White House under former President George W. Bush, spoke approvingly of why a president might try to extend his executive authority.

“Why? It seems why might be it’s harder to get legislation through Congress, particularly with the filibuster rule,” said Kavanaugh. “Presidents want to get things done with good intentions. The executive branches that work for those presidents push hard, when they can’t get new authority, to stretch or use the existing authority. They’ve been pushing, understandably, all with good intentions. All the presidents, both parties, right, with good intentions.”

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