Supreme Court agrees to decide if Trump may end birthright citizenship

By John Fritze, CNN

(CNN) — The Supreme Court agreed Friday to decide if President Donald Trump’s attempt to end birthright citizenship with an executive order is constitutional, offering the justices an opportunity to revisit what has widely been considered settled law since the 19th Century.

By granting the appeal, the court is directly taking on the merits of a controversy that it largely avoided earlier this year, when it sided with Trump on technical grounds dealing with how the challenges to the policy were handled by lower courts.

Cecillia Wang, national legal director for the American Civil Liberties Union said the organization looks forward to the Supreme Court “putting this issue to rest once and for all.”

“The federal courts have unanimously held that President Trump’s executive order is contrary to the Constitution, a Supreme Court decision from 1898, and a law enacted by Congress,” she added.

Though the legal theories advanced by the Trump administration’s appeal have long been considered fringe even by many conservatives, the case will nevertheless draw considerable public focus to the Supreme Court term that began this fall. It is yet another test of the court’s willingness to embrace a boundary-pushing legal argument from the White House.

A ruling for Trump would upend a longstanding tenet of constitutional and American immigration law and may have significant practical implications for US citizens who may face new hurdles documenting newborns.

The court will hear arguments next year and will likely hand down a decision by the end of June.

“There is perhaps no single issue, from the beginning of this administration, on which President Trump has been more wrong than his attempt to narrow birthright citizenship by executive order,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“Whether because it violates the relevant statutes; the Fourteenth Amendment itself; or the Supreme Court’s authoritative 1898 interpretation of that constitutional provision, the bottom line is the same,” he added. “And although the Court sided with Trump earlier this summer when he asked it to narrow injunctions against the policy, now that it’s back on the merits, there’s every reason to believe that even this Court will rule against him; the real question is likely to be on which of the multiple possible grounds.”

Two decades after the 14th Amendment was ratified in 1868, the Supreme Court ruled in US v. Wong Kim Ark that people born in the United States – in that case, the son of Chinese immigrants – are entitled to US citizenship, with a few narrow exceptions. But the Trump administration argued in its appeal that the precedent has long been misunderstood.

Despite the understanding of the citizenship clause enshrined in the 1898 opinion, the Trump administration told the Supreme Court in its appeals that notion was “mistaken” and that the view had “destructive consequences.” Trump has made ending birthright citizenship a key part of his immigration agenda.

“The citizenship clause of the Fourteenth Amendment was adopted to grant citizenship to newly freed slaves and their children – not to the children of temporary visitors or illegal aliens,” Solicitor General D. John Sauer, the administration’s top appellate attorney, told the Supreme Court in the appeal.

While the Supreme Court handed down an important decision in June that touched on Trump’s birthright citizenship order, that case was focused on a more procedural question of how much power lower courts had to stop a policy implemented by a president. A 6-3 majority of the court essentially limited – but did not completely eliminate – the power of courts to block such policies.

After the Supreme Court’s decision, Trump’s birthright policy was quickly blocked again by courts using other methods and has never gone into effect.

Lower courts, made up of both conservative and liberal judges, have all sided against the administration’s order.

“Their case amounts to little more than a jumble of historical misstatements, inapposite citations, newly manufactured doctrines, and – more than anything else – policy preferences,” the American Civil Liberties Union and other groups representing the individual plaintiffs, told the Supreme Court this year.

The court agreed to hear arguments in a case from a judge in New Hampshire that barred enforcement of Trump’s order against any babies who would be impacted by the policy in a class-action lawsuit brought by the ACLU.

But it did not take up a separate case that came from the San Francisco-based 9th US Circuit Court of Appeals. That upheld a Seattle judge’s ruling blocking Trump’s policy nationwide in a case brought by a group of Democratic-led states.

The difference likely has to do with who was suing: The 9th Circuit case involved a question of whether states had standing to sue over the policy.

Signed by Trump on January 20, the executive order, titled, “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP,” said that the federal government will not “issue documents recognizing United States citizenship” to any children born on American soil to parents who were in the country unlawfully or were in the states lawfully but temporarily.

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