The Birthright Citizenship Cases

The justices won’t decide whether a Trump proclamation stripping birthright citizenship is lawful. But they could decide to make it far harder to challenge.

Photo of Trump signing an executive order. Eric Lee / New York Times

Birthright citizenship is up for discussion at the Supreme Court, but not in the way you might think.

One of the first and most sweeping executive orders Trump issued concerned so-called “birthright” citizenship. Ever since the 14th Amendment to our Constitution was ratified, overturning the infamous Dred Scott case that held that slaves could never become U.S. citizens, it has been established law that anyone born in the U.S. is automatically a citizen.

For the pure textualists out there, the language is clear. The 14th Amendment states right up top, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….”

Using this language, in the late 1800s, the Supreme Court ruled that a Chinese American, who was not born of foreign diplomats and therefore was subject to our laws, could not be denied re-entry to the country under the Chinese Exclusion Act. He was born here and therefore a U.S. citizen, end of story.

Still, lawyers on the far right, led by John Eastman of the Claremont Institute (yes, that John Eastman, who wrote the January 6 coup memo and is facing disbarment and state indictments over it) still believe we can and should revisit the question. And today, SCOTUS is set to review a set of consolidated birthright citizenship cases, each of which, unsurprisingly, went against the Trump administration.

So why take up these new cases at all? Should we be freaking out that SCOTUS is even talking about efforts to eliminate birthright citizenship?

We can breathe a bit easier knowing that this Supreme Court isn’t actually considering whether to eliminate it. The government appealed these adverse rulings on a far more limited question by launching a collateral attack upon nationwide injunctions. It is using these cases as a way to bring that question before the justices.

In a nutshell, the Trump administration is sick of single judges doing their constitutionally assigned jobs and putting a stop to its worst excesses. So it’s trying to weaken the power of the judiciary by limiting how far the rulings of federal judges can go by asking the Supreme Court to strip them of their power to issue nationwide injunctions.

This puts us into some deep legal weeds, so let me try to hack through them for you.

Birthright citizenship as a national question

Trump’s executive orders apply nationally. After all, they are issued from the top executive in the nation. His birthright citizenship order on January 20, 2025 was no exception. Here was the announced change in policy:

[N]o department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

This policy applied everywhere, to everyone. It affected all states and all localities in the country.

Plaintiffs challenged the new policy immediately. They filed three different cases in three different jurisdictions. When they each headed to court to challenge the order, there was an immediate question for judges to decide: Was nationwide relief appropriate, or should any rulings only apply to the named plaintiffs in their jurisdictions?

As the New York Times summarized, the plaintiffs in these cases were 22 Democratic-led states (whose official state documents recognizing citizenship would be rejected if the order were to stand); immigrant advocacy groups; and several pregnant women who feared their children would be denied citizenship.

Three different federal judges hit pause on Trump’s order, temporarily blocking its enforcement nationwide while litigation moved forward. In March, the Trump administration appealed, asking SCOTUS to lift the blocks but on the narrow grounds that nationwide injunctions should not be permitted.

To enjoin, or not to enjoin, nationwide?

The current practice and understanding in our legal system is that nationwide injunctions are within the lawful power of federal courts to issue. After all, the availability of nationwide injunctions is how the courts desegregated our schools and stopped racial gerrymandering.

The current administration is being hammered by nationwide injunctions against its many illegal and unconstitutional policies, from its bans on trans medical care to its deportation of migrants under bogus claims that we’re being “invaded.” The White House is eager to halt the practice so it can get as many of its policies into effect for as long as possible—and continue to get away with the worst behavior in places with the worst judges.

Speaking of the worst judges, conservatives were okay with nationwide injunctions when it was a single radical Texas judge revoking FDA approval of abortion medication. But these same conservatives balk when judges issue nationwide injunctions against Trump’s illegal executive orders.

The chief hypocrite here is Justice Neil Gorsuch. He has been a vocal critic of nationwide injunctions, calling them out in a separate opinion in 2020 as “patently unworkable” rulings that are “sowing chaos”—meaning, taking up time on the Supreme Court’s docket. Yet he and his pals Justices Alito and Thomas seem only to care about such rulings where they go against Republican presidents. Where were these complaints when judges enjoined President Biden’s policies nationwide?

Playing whack-a-district

The judicial system’s recent experience with Trump’s executive order under the Alien Enemies Act is instructive. The record demonstrates what can happen when no nationwide standards apply to very big questions.

Let’s refresh our collective memory. The Department of Homeland Security deported—and continues to seek to deport—people simply accused of being members of the “Tren de Aragua” gang, on grounds that they are an invasion force working with the Maduro government in Venezuela.

That’s bonkers, and our own intelligence said it was untrue. Director of National Intelligence Tulsi Gabbard fired two people at the National Intelligence Council over that report for not falling in line with Trump. But there’s still a presidential proclamation actually making this unsupportable claim, so here we are.

Judge James Boasberg, to no one’s surprise, had his doubts. He issued a temporary nationwide injunction against further deportations (which the government initially ignored). Eventually the case went all the way up to the Supreme Court. I’m simplifying, but here’s the basic gist: All would-be deportees are indeed entitled to a hearing before deportation (that’s the due process requirement, which drew unanimous support), but the Court split when it came to what kind of action each would-be deportee would have to bring and where.

The conservative majority held 5-4 that the action would have to be a “habeas” petition (meaning a formal request to release someone being held in custody), and importantly that it would have to be brought in the jurisdiction where the person was being held.

This unfortunate and not very well thought-out ruling resulted in exactly what you might expect: The government began to play “whack-a-district” by moving migrants and then holding them in places where it believed habeas petitions would be less successful. This was akin to how litigants “forum shop” hoping for a sympathetic judge to hear their case.

The government then did the same with student activists who were detained for supporting the Palestinian cause in Gaza.

There’s a reason the government keeps sending people to Texas and Louisiana for detention: Habeas petitions face conservative judges there, and above these judges on appeal lies the Fifth Circuit, the most radical appellate court in the country.

As Professor Steve Vladeck explained, the misguided ruling from SCOTUS created quite a mess. What began as a clean suit before a single judge under the Administrative Procedures Act, on behalf of a nationwide set of plaintiffs who were all subject to Trump’s proclamation on the Alien Enemies Act, turned into a jumbled patchwork of cases:

Thus, instead of having one lawsuit producing one clear set of judicial directives for the government to follow, we’ve had two sets of things happening at the same time: First, separate lawsuits had to be brought in each district in which [Alien Enemies Act] detainees are being held; and second, until each and every one of those district courts issued even temporary relief, nothing was stopping the Trump administration from using the [Alien Enemies Act] to remove individuals held in those districts—again, even though no court had yet ruled on whether the proclamation was lawful on its face.

Are you watching this, Justice Gorsuch? Talk about “sowing chaos.”

The justices hearing the birthright citizenship cases will grapple with the pros and cons of nationwide injunctions. And they will likely try to fashion some new rule that weighs the benefits of nationwide relief against the risk that too much power rests in the hands of a single judge whom litigants could target with their most important cases—just as we saw with Judge Kacsmaryk in Texas in the abortion medication cases.

But if you think about it, the birthright cases aren’t particularly great hills to die on for conservatives. If they want to overturn the longstanding practice of nationwide injunctions, they should have probably picked an example where the law is less settled and where the consequences of limited rulings are less pronounced.

After all, if any rulings must always only apply in one district to one set of plaintiffs, then in the birthright citizenship cases people could be treated as U.S. citizens in one state where a court has ruled, but not in others where no case has yet been filed.

And to use Justice Gorsuch’s phrase, that’s also “patently unworkable.”