The NPR Politics Podcast - SCOTUS Hears Birthright Citizenship Case

Episode Date: May 15, 2025

On his first day in office, President Trump signed an executive order to prevent children born in the U.S. to parents in the country without legal authorization from obtaining citizenship. On his second day in office, lawsuits were filed to block the order, citing the 14th Amendment's citizenship clause. The Supreme Court heard arguments in the case today, and we break down what happened. This episode: political correspondent Sarah McCammon, political correspondent Susan Davis, and national justice correspondent Carrie Johnson.The podcast is produced by Bria Suggs and edited by Casey Morell. Our executive producer is Muthoni Muturi.Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

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This podcast was recorded at 1.50 PM Eastern time on Thursday, May 15th, 2025. Things may have changed by the time you hear this, like we'll have graduated from college! Woo! Awesome! Such a good feeling. And thank you for your service. Teachers are so important. Hey there, it's the NPR Politics Podcast. I'm Sarah McCammon. I cover politics. I'm Susan Davis. I also cover politics. And I'm Kerry Johnson. I cover the Justice Department. All persons born or naturalized in the United

States and subject to the jurisdiction thereof are citizens of the United States. Those are the words of the 14th Amendment to the U.S. Constitution. And today on the pod, arguments before the U.S. Supreme Court could determine whether this remains true. Sue, I want to start there. What is birthright citizenship and what is the Trump administration trying to do? Sue Levy-Siegel Birthright citizenship is spelled out plain as day as the 14th Amendment to the Constitution, which essentially says practically all persons, there are a few minor exceptions to the law, but practically anyone born on US soil has

the right, the birthright to citizenship..S. soil has the right, the birthright to citizenship. Now, Donald Trump has long taken issue with this. He campaigned on it. He doesn't support it. Trump does not believe that children born to parents who are in the U.S. without legal authorization to be here should be granted citizenship at birth. And on his first day in office, one of his first acts was an executive order essentially ending birthright citizenship, saying that if you are born in this country to parents who neither can claim any right to legal status or citizenship, that you are no longer automatically given that right. Now, the issue before the court today wasn't necessarily the constitutional

rightness or wrongness of that executive order, but the matter by which he did it and the court's ability to stop him. Cari, who's fighting the Trump administration on this? Within 24 hours of this executive order on January 20th, the state of Washington weighed in with a lawsuit and this case came to the Supreme Court as part of three separate legal disputes involving 22 states all in all, two immigrant rights groups and a number of expectant parents who had a huge stake in this case because their babies could possibly be born stateless if this order went into effect. And so what we heard today was the Solicitor General, John Sauer, arguing for the Trump

administration. Sauer, you may remember, actually argued as Trump's private lawyer in that big immunity case last term. And then the Solicitor General for the state of New Jersey and a lawyer from Georgetown Law Center arguing on behalf of states, the expectant parents, and the immigrant rights groups. And as Sue just mentioned, this case isn't just about birthright citizenship. That's the central issue here.

But it's also about an issue that sounds a little technical, but is really very central to the question of balance of power between the president and the courts. We're talking about something known as universal injunctions. Carrie, what are those and how do they come into the case? Universal injunctions are sometimes also called nationwide injunctions. And what they are basically is the ability of a single federal judge around the country to block something the administration wants to do and for it to take effect across the entire country.

It's something that presidents from both parties have been complaining about at least since the George W. Bush era. It's something that justice departments from both political parties have really resisted. And we're kind of now in, according to the Trump administration, epidemic proportions because in just over four months, there have been 40 nationwide injunctions against things Trump wants to do in office. And yeah, to that point, I mean, Sue, there's been bipartisan concern about this practice of nationwide injunctions, hasn't there? There is, and I also learned something before the court today listening to these arguments

because in our lifetimes, these injunctions seem almost commonplace. We're used to these happening under modern presidents. But in an exchange, I believe it was between John Sauer and Justice Clarence Thomas, he was asking him about the rise in the use of these. And Sauer argued that they really started to become more of a feature of American judicial life in the 1960s. And they've just increasingly creeped up over time. But you're right Sarah, presidents in both parties have used executive orders to try to enact law and presidents of both parties have been handcuffed by lower courts that have used these injunctions to say you can't do that. Two recent examples under President Biden when he tried to do a student loan forgiveness program, the courts blocked that from

going into place. Under President Barack Obama he tried to change national immigration laws and there was injunctions put on that and the court ultimately threw it out. So I think in some ways Trump is benefiting, right? Like there's now been a long established precedent of executives being irritated at the use of these injunctions. And I think some sympathy, at least we heard today from some of the the justices that look like these injunctions can be very powerful and does give singular justices an ability to make law, I think someone put it, from sea to shining sea. Well, on the one hand, they are a check on executive power, right?

I mean, that's sort of what they're intended to be. Sure, by design. On the other hand, it's one judge, one federal judge, essentially making a ruling that applies to everyone across the country. One of the challenges or one of the concerns that came up in these arguments was the fact that you could end up with a patchwork policy, right? You could have different rules in different places without a nationwide injunction. I mean, explain how that works, Keri.

So what's going on here is that justices who are appointed by presidents of both political parties have been on record over time in court writings and in speeches of being kind of disgusted with nationwide injunctions. You can really disagree with the ability of one judge in some part of the country to set policy for the entire country. The challenge here, Sarah, is that it's clashing in this case with the facts and the precedent, precedent going back 127 years with respect to birthright citizenship. There could hardly be a more fundamental right than that. And this is maybe not the best case for the Supreme Court to make a point

about universal injunctions. And a lot of what we heard today over two and a half hours of oral argument was the justices arguing with each other in themselves and the advocates about where to draw a line. And I don't think we got a lot of clear answers about what they're going to do, but there was a lot of push and pull over how they could respect people's fundamental rights and their ability to bring cases without causing chaos across the country and frustrating a president's legitimate agenda items. There was a lot of these questions about how you could even implement a patchwork system

like that. And there was a really good exchange between Justice Kavanaugh and John Sauer, where he was talking about where babies are born. A lot of states are porous, in the words of the New Jersey Solicitor General. The example they use is a lot of people who live in South Jersey will go to Children's Hospital in Pennsylvania to have their babies. And Kavanaugh is kind of pressing him on this point. On the day after it goes into effect, it's just a very practical question how it's going

to 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 two 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-1 visa, which would exclude kind of the birthright citizenship in that country. For all the newborns? Is that how that's going to work? Again, we don't know because the agencies were never given the opportunity to formulate the guidance.

They would have 30 days. They're only going to have 30 days to do this. You think they can get it together in time? That's what the executive order instructs them to do, and hopefully they will do so. Now keep in mind, if this executive order were to go into place, it would take effect in 30 days. That is an incredibly short period of time to try to implement a policy that would basically upend American life.

Has the Trump administration given any indication about how they would resolve these significant questions that would seem to arise if different jurisdictions have different rules about who is a citizen? No, and I would say that part of what the administration has taken issue with with this injunction is the fact that it has also blocked the administration from even taking any steps within the Department of Homeland Security or the State Department to implement that kind of guidance

of how they think that this would play out if it were allowed to be implemented. It's time for a break. We'll have more in just a moment. And we're back. So we were just talking about a lot of the uncertainty that this case sort of injects into the whole immigration system,

particularly for people who may be expecting babies, people without documentation. Carrie, what did the lawyers argue would be the harms for those people who are currently in the country and expecting a child and uncertain how this is going to unfold? You know, if you get rid of these universal injunctions, one possibility that the Trump administration seems to want to have happen is that everyone would have to go to court and sue. And that's extremely challenging. Not everybody can find a lawyer. Some of these people may be afraid to come forward because of the consequences that could happen because of their immigration status. And Justice Katanji Brown Jackson

kind of pointed to this issue. She called it a catch me if you can problem. The real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a catch me if you can kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.

And we heard the argument, I think, that essentially requires people to sort of raise a flag and say, look at me, right, by going to court and raising this issue. Yeah. And there's other harm than that. We heard those harms basically discussed at great length by Jeremy Feigenbaum. He's the Solicitor General for the state of New Jersey, and he was basically the guy making the argument for all the states who sued over this birthright citizenship order. Feigenbaum basically said, this is going to cost states tens of millions

of dollars in administrative costs to try to figure out how to respond. It's going to upend the way that birth certificates operate now, and it's really going to be a huge mess for states to figure out. He also said that this would be the first time since the Civil War that citizenship would stop at a state border. So how could it be that if you happen to be born in New Jersey, you're a citizen, but if you happen to be born across the border in Pennsylvania, you're not? That just doesn't make any sense for such a fundamental right, he said. You know, immigration, as we've said many times on this podcast, was such a major issue

in the campaign. Trump promised to crack down on undocumented immigrants, on illegal immigration, and he's taken a number of very significant actions since taking office. So ending birthright citizenship was one of those, one of the things he promised to do. But does he have public support on this issue? Yeah, I mean, this was shocking, but not a surprise, right? Like, Donald Trump campaigned on this very issue of ending birthright citizenship, and he won an election. So you can see from the president's standpoint that he should be empowered to do something like this.

And I do think that broadly on the issue of immigration, a tougher stance on illegal immigration or all matters of immigration for that matter, I think Donald Trump believes he won this election running on that. So I think that they do feel like they are on strong political ground. But what has been interesting is that when Donald Trump had such a clear advantage on the question of immigration before the election, since taking office and since taking such high profile actions towards reducing illegal immigration, his polling has gone completely downward. And we're seeing that across polling, including in our own most recent NPR Ipsos poll out today, that showed that just a third

of Americans support ending birthright citizenship. A majority of Americans do not support this action. And you're also seeing those polling attitudes start to shift on how the president has been handling deportations. In many cases, people are being deprived due process rights or people who are here legally have been detained or deported. So I think that the president sort of won the argument in the election, but the execution of how he is doing this is causing a lot of consternation in the country. And again, we are only four months into his term. And so seeing such a sharp downward trajectory does indicate that the president might be

moving at a pace that is faster and maybe more dramatic than the country is prepared for. There's so much at stake in this case. Carrie, from what you heard from the justices, did they signal how they're thinking about these issues? really I'm talking about the conservative justices? I think this is a really hard problem, right? I mean, many of the justices, maybe even most of them have real beef with this issue of universal injunctions. The problem is when you graft those complaints against the facts of this case and the substance of this birthright issue, it gets very difficult in part because, you

know, this all stems from the 14th Amendment. There was an 1898 Supreme Court case about a baby boy born in San Francisco to Chinese parents and then a 1940 statute and then just precedent upon precedent upon precedent. And so there seem to be fair agreement among the justices that they have questions about the legality of what Trump wants to do with birthright issues, but it's not clear at all how they're going to land on these injunctions. And if they want to limit the number of times that a single district judge can make policy for the whole country or at least put the president's policy on pause, it's hard to figure out how they can draw a fence around that.

And one answer that came from Kelsey Corcoran from Georgetown who was arguing for the immigrant rights groups and the expectant moms is that maybe you allow these nationwide injunctions in cases where a fundamental constitutional right is at issue here and in cases like the New Jersey Solicitor General was arguing where states have a huge stake both in terms of how much money they're going to receive under Medicaid and in children's insurance plans and how much of a huge burden it would be to end the entire system by which they recognize the birth of babies.

How does this play out from here? The court's expected to rule at some point. You know, many of the justices asked, including Chief Justice John Roberts and I think Neil Gorsuch as well, when and how the merits of this case, the substance of the birthright issue would ever get to the Supreme Court if they just decided narrowly on their preliminary injunctions now. And the people arguing on behalf of immigrants wanted the court to grapple with the substance. It's not at all clear that they're gonna be able to do that in a timely fashion. And so typically, decisions by the court come out in late June or early July before they take

a summer break. If they decide to go small, we might see something much sooner. And if they decide to try to craft or develop or draw those lines and borders, it might take them till the end of the term. It's just hard to say right now. It's hard to say too because, and believe me, I am not the Supreme Court expert, but even to a layman's ear, two of the justices, Amy Coney Barrett and Brett Kavanaugh, seem to be quite skeptical about some of the arguments the government was making. And to also further co-opt NPR legal affairs correspondent, Nina Totenberg, like listening to the totality of it, I think sometimes with cases, it seems pretty clear which way the court's leaning. And in this

one, it just seems really complicated. And it'll be very curious to see how narrow or broad this court wants to make about a statement about this issue of injunctions and when and how they can be used. And in the meantime, a lot of questions for a lot of people who will be directly affected by the outcome. We'll leave it there for today. I'm Sarah McCammon. I cover politics. I'm Susan Davis. I also cover politics. And I'm Carrie Johnson. I cover the Justice Department. And thank you for listening to the NPR Politics Podcast.