Consider This from NPR - Birthright citizenship goes to the Supreme Court

Episode Date: May 15, 2025

President Trump's order that would end automatic citizenship for the children of many categories of immigrants has been blocked from going into effect by three separate federal judges. Those injunctions have been upheld by three separate appeals courts.So Thursday's case at the Supreme Court was really about two questions: Whether the constitution guarantees birthright citizenship and whether judges can issue nationwide injunctions against federal policies.University of Virginia law professor Amanda Frost, author of the book You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers, followed the arguments and breaks down clues that point to the Justices' thinking.For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

President Trump has been thinking about birthright citizenship for a long time. He debated Bill O'Reilly about it during a Fox News interview back in 2015, early in his first presidential campaign. And O'Reilly brought up an obvious hurdle, the 14th Amendment. Because the 14th Amendment says if you're born here, you're an American and you can't kick Americans out. Birthright citizenship is constitutionally guaranteed. To most legal scholars, it's a settled issue.

Trump disagreed. Bill, I think you're wrong about the 14th Amendment. He argued that the kids of non-citizens who traveled to the U.S. to give birth did not have the constitutional right to American citizenship. O'Reilly pushed back forcefully. I can quote it. You want me to quote you the amendment? If you were born here, you're an American. Period.

Period. But there are many lawyers, many lawyers are saying that's not the way it is. O'Reilly said you'd have to get the Constitution amended. Trump said he'd rather test the idea in court. So file a suit, O'Reilly said. We're going to test it out. That's going to happen, Bill. A decade later, the question is before the Supreme Court.

This next order relates to the definition of birthright citizenship under the 14th Amendment of the United States. On the first day of his second term, Trump signed an executive order blocking automatic citizenship to the children of immigrants who are not legal permanent residents. That's a good one. Birthright. That's a big one. Birthright. That's a big one. The policy was quickly challenged in court.

A federal judge put it on hold. And in April. A short time ago, the Supreme Court agreed to hear oral arguments in the case about ending birthright citizenship. Well, you're just telling me that for the first time. I am so happy. Consider this. The Supreme Court is now in a position to redefine who gets to be an American

and shape the power of federal courts to check the president. From NPR, I'm Ari Shapiro. It's Consider This from NPR. Three federal appeals courts have so far upheld injunctions that prevent Trump's birthright citizenship order from taking effect. So the case the Supreme Court heard Thursday is really about two things, whether the Constitution guarantees birthright citizenship and whether a judge can issue a nationwide injunction. Amanda Frost is a professor of constitutional law at the University of Virginia, where she teaches classes on citizenship law. She listened to today's

oral arguments and joined me to talk about it. Well, Topline, what stood out to you from the two plus hours of arguments today? Yeah, so it was clear that a number of the justices are very concerned about this nationwide injunction. That is, when a district court issues an injunction that bars the executive branch from applying its policies to anyone, not just the plaintiffs in the case, and that it was not going to be focused

on the constitutionality of the executive order. And indeed, that's what came to pass. Although the constitutional questions did come up occasionally, the focus was on the scope of the injunction. But it was equally obvious that even some of the more conservative justices like Barrett and Kavanaugh are worried

about what would happen without nationwide injunctions, especially in light of a president who's issued so many executive orders making radical changes to the law. So less about the birthright citizenship question, more about what sounds like a technical question, nationwide injunctions from judges. Can you explain why a decision that kind of punted

on birthright citizenship, but address nationwide injunctions could be so consequential, it could have a huge impact? Yes, the nationwide injunction question is vital not just to the birthright citizenship litigation, but to a large number of this president and previous president's executive branch policies. There's now 40 nationwide injunctions in place against President Trump's executive branch policies and of course he's issued 150 executive orders, which partly explains that policy.

So this is relevant to many cases, not just birthright citizenship. And we should say during the Biden administration, there were conservative judges who issued nationwide injunctions against a more liberal president's executive orders. Yes. I mean, Biden's student loan forgiveness policy, which was a sweeping change in law, quite controversial, and it was put on hold by a nationwide injunction, as was President Obama's changes to immigration law. So the judges are by a nationwide injunction, as was President Obama's changes to immigration law. So the judges are skeptical of nationwide injunctions.

At the same time, they expressed a lot of concern about what would happen if that judicial authority is eliminated. Tell us about what they're concerned about here. Yeah, I mean, this case is all about the lag time or delay between when litigation is filed, challenging, for example, this birthright citizenship executive branch order,

till when it's finally decided, which could be three or four years later. And so the justices both want to limit nationwide injunctions, and yet they recognize the chaos that could ensue if something like this birthright citizenship executive order went into effect for three or four years. Explain what that could look like in that hypothetical scenario.

Yes, and I thought that the plaintiff's lawyers did an excellent job of explaining this to the justices, because it would mean that all 3.6 million children, on average, born every year in the United States, their parents would have to scramble to prove their citizenship. It would no longer be good enough to show the child's birth certificate.

And it would cause chaos and confusion, as the lawyers for the plaintiffs argued. And Justice Brett Kavanaugh seemed particularly taken by that point. He kept asking Solicitor General Dean John Sauer how this would work. What do hospitals do with a newborn? What do states do with a newborn? I don't think they do anything different.

What the executive order says in Section 2 is that federal officials do not accept documents that have the wrong designation of citizenship from people who are subject to the executive order. How are they going to know that? The states can continue to, the federal officials will have to figure that out. How? So you can imagine a number of ways that the federal officials could. Such as? Such as they could require a showing of documentation showing legal presence in the country.

For a temporary visitor, for example, they could see whether they're on a B of documentation, showing legal presence in the country. For a temporary visitor, for example, they could see whether they're on a B-1 visa, which would exclude kind of the birthright citizenship in that context. For all the newborns, is that how it's gonna work? Again, we don't know. And I don't think you got the answers you wanted. This is the most conservative Supreme Court in decades

with a six justice super majority of right-leaning justices. And yet even within the conservative movement, the 14th Amendment guarantee of birthright citizenship was never a seriously debated question until recently. How did we get here? Danielle Pletka Oh, that's a good question. I mean, this is something President Trump did raise in his first term in office, although he didn't ever issue such an executive order. He promised it. It was on his campaign website as a campaign promise.

He delivered day one. He's adopted some fairly fringe theories to support this executive order, but so far it's lost in every court to have addressed it, including by judges appointed by Republican presidents, President Reagan. One of his appointees called it blatantly unconstitutional. So judging from the questions that we heard from the court today, it sounds like your assumption is we may not get a blockbuster ruling on the 14th Amendment guarantee of birthright citizenship, but do you have a sense of where they might come down on this question of whether a judge can issue a nationwide injunction? Yeah, they're very unlikely to address the substantive constitutional question, although

they may hint at their resolution of it. In terms of where they're going to come out on this really important question of whether lower courts can issue injunctions that bar policies from going into effect across the nation, I think the justices are going to want to either establish a limiting principle, that is, try to prevent these injunctions from being appropriate or issued in every case potentially. And they also are going to try to push these cases into the class action device, that is the ability of a plaintiff to try to certify a class. So I think they're going to try to adopt a rule that encourages class actions in the place of nationwide injunctions and or limits nationwide injunctions.

And we are expecting that decision decision whichever way the justices rule later this summer. That is law professor Amanda Frost, author of the book You Are Not American, Citizenship Stripping from Dred Scott to the Dreamers. Thank you. Thank you. This episode was produced by Michael Levitt and Connor Donovan. It was edited by Tinbeat Ermias. Our executive producer is Sammy Yenigan. It was edited by Tinbeat Ermias. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Ari Shapiro.