Birthright citizenship reaches the Supreme Court. What鈥檚 at stake?
The U.S. Supreme Court will hear arguments this week in a case that is both unusual and potentially seismic in its consequences.
The 14th Amendment says that anyone born in the United States is automatically a citizen of this country 鈥� and has been settled law since the 19th century. President Donald Trump is seeking to put an asterisk on that amendment as part of his crackdown on immigration. But before then, the Trump administration is asking the justices to resolve an unusual procedural question in Trump v. CASA, Inc.
In three lawsuits challenging the Jan. 20 birthright citizenship executive order, lower courts have found it unconstitutional. All three issued nationwide injunctions stopping it from taking effect. In what they have described as a 鈥渕odest鈥� request, Trump administration lawyers are asking the Supreme Court to narrow the injunctions to the individuals and states involved in what is now one combined case.
Why We Wrote This
On Thursday, the Supreme Court will hear oral arguments in a case asking whether an executive order must be applied uniformly across the United States.
In effect, the justices are being asked to allow the birthright citizenship order to take effect in parts of the country but not others. The case could transform the power of the judiciary, as laid out in Article III of the Constitution. More immediately, it also carries profound consequences for immigrants in the U.S.
The order would reinterpret birthright citizenship as it applies to individuals 鈥渟ubject to the jurisdiction鈥� of the U.S. The administration defines this as excluding babies born to parents in the country unlawfully or temporarily. The justices will ultimately be the deciders of the order鈥檚 constitutionality. But this initial foray also has the potential for real-world consequences.
鈥淐itizenship is one of those areas where we just haven鈥檛 seen different rules in different places,鈥� says Nicole Hallett, director of the Immigrants鈥� Rights Clinic at the University of Chicago Law School.
鈥淭here鈥檚 some skepticism on the court around nationwide injunctions,鈥� adds Professor Hallett. 鈥淏ut I don鈥檛 see how the court could side with the Trump administration without creating chaos and confusion.鈥�
Different versions of the Constitution for different states?
Judges have issued numerous nationwide injunctions pausing Trump administration policies in the past four months 鈥� something some Trump supporters have said shouldn鈥檛 be allowed. (They felt differently during the Biden administration, funneling 聽through Amarillo, Texas, presided over by a lone, conservative judge appointed by Mr. Trump during his first term.)
The birthright citizenship order is, some legal experts say, a textbook example of when a nationwide injunction is justified. While it鈥檚 hotly debated whether an individual judge should have the power to make law affecting the whole country, even on a temporary basis, the Constitution is by definition the supreme law of every state. The framers created the Supreme Court in part to ensure that that law across the country. If the high court allows the order to take partial effect, different federal courts would effectively be subject to different versions of the Constitution depending on their location.
What does it mean to be 鈥渟tateless鈥�?
Narrowing the Constitution鈥檚 birthright citizenship clause would also have real-world consequences. Parents who are unlawfully or temporarily present in the country would be most affected, experts say. In theory, though, every new parent could have to verify their immigration status under new criteria when applying for government documents or benefits for their children. It would likely be up to civil servants to make these new determinations.
The Trump administration that it is unable to create 鈥減ublic guidance about how [executive agencies] would implement鈥� the order because of the nationwide injunctions.
Counter to the administration鈥檚 goals, some researchers say, enacting Mr. Trump鈥檚 order would actually swell the unauthorized population. If the order is enacted, that group could be 40% larger in 2075 than it would be under the current interpretation of birthright citizenship, according to by the Migration Policy Institute. The think tank estimates there were 13.7 million unauthorized immigrants as of mid-2023.
In the most extreme scenarios, critics say, the order could grow the population of 鈥溾�� individuals 鈥� who have no citizenship in any country 鈥� in the U.S.聽For them, obtaining an ID isn鈥檛 guaranteed, though they also can鈥檛 be easily deported.
The U.S. is not a signatory to United Nations聽. Neither does U.S. law define statelessness. That also means there is no structure through which stateless people can directly obtain a permanent legal status. Democratic lawmakers have tried, and failed, to.
According to one , in the absence of federal data, roughly 218,000 U.S. residents were potentially stateless, or at risk of becoming stateless, as of 2017. United Stateless, a human rights advocacy group, says reinterpreting birthright citizenship would create more stateless people.
鈥淢ost stateless people don鈥檛 have any documents. They don鈥檛 have any legal identity,鈥� says Samantha Sitterley, staff attorney at United Stateless.
If the federal government is going to, overnight, bar automatic U.S. citizenship for a new group of children, she says, 鈥淚t seems like there has to be some kind of structure in place.鈥�
To date, statelessness in the U.S. has tended to result from a mix of issues, including geopolitical change and quirks in American immigration law.
Karina Ambartsoumian-Clough, who lives in New Jersey, left the Soviet Union as a young girl in the 1990s with her parents. They sought asylum in the U.S., which was denied. Her country of birth no longer exists, and she says the country that replaced her birthplace, Ukraine, doesn鈥檛 recognize her as a citizen.
Ms. Ambartsoumian-Clough, executive director of United Stateless, recounts struggling to navigate American life when she became an adult.
鈥淚 couldn鈥檛 get a driver鈥檚 license. I couldn鈥檛 get a state ID. I didn鈥檛 have a passport,鈥� she says. 鈥淚 became completely undocumented. Not just in this country, but to the entire world.鈥�
The Deferred Action for Childhood Arrivals program, created in 2012, allowed her to access a driver鈥檚 license and work permit. And a dozen years after marrying a U.S. citizen, she鈥檚 now a green-card holder, which offers her a path to naturalization. Yet she still remains stateless and unable to leave the country.
鈥淲e need to ring the alarm,鈥� she says, referring to the birthright citizenship order. It鈥檚 going to 鈥渃reate children born in this country that have to experience this agony.鈥�
Not everyone believes the birthright citizenship order would have such a dramatic effect, however. Many countries offer citizenship through parentage. So, many children who would no longer be eligible for U.S. citizenship should be eligible for citizenship elsewhere, says Andrew Arthur, resident fellow in law and policy and the Center for Immigration Studies, which advocates for a more restrictive U.S. immigration system.
鈥淭here are a number of logistical issues that would come with a restrictive interpretation of the 14th Amendment,鈥� he says. 鈥淏ut I don鈥檛 really think that [statelessness] would be one.鈥� However, he adds, Congress could step in and 鈥済ive those individuals status.鈥�
New hoops for new parents
Besides a potential increase in stateless individuals, narrowing the definition of birthright citizenship would have other practical consequences, experts say.
Without a federal birth registry, state and local governments are, at the moment, primarily responsible for handling the documentation required when infants are born. Federal agencies rely on that information when issuing Social Security numbers and passports.
The added bureaucracy could increase the time and financial burden on new parents in the U.S.
The narrower definition of birthright citizenship could cost new parents, at a minimum, about $3,000 per child, according to聽聽by attorney Margaret Stock. Her estimate is based on the current cost to file a citizenship-certification , along with legal fees.
鈥淭he system is not set up for this, for people to be undocumented at the moment of their birth,鈥� says Ms. Stock, whose practice is focused on immigration and citizenship law. Worst-case scenarios she envisions include immigration authorities trying to detain and deport babies, which could dissuade would-be workers from coming to the U.S.
The justices will hear arguments on May 15. A decision is expected by the end of June.
