It was one of US President Donald Trump’s most ambitious executive orders, and it came just hours after he took office for his second term: ending the United States’ policy of birthright citizenship that has lasted for more than a century.
And just three days after Trump issued the order, a federal judge in Washington state blocked the decree from going into effect. In the months that followed, two other federal judges joined in issuing nationwide injunctions.
On Thursday, the issue will reach the US Supreme Court, with the 6-3 conservative dominated bench set to hear oral arguments in the case. What the court decides could be transformative.
Proponents have long argued that the practice of granting citizenship to all those born on US soil is woven into the national fabric.
American Civil Liberties Union executive director Anthony Romero did not mince words in January, when he called Trump’s order a “reckless and ruthless repudiation of American values”, destined to create a “permanent subclass of people born in the US who are denied full rights as Americans”.
Meanwhile, a smaller but vocal contingency, empowered by Trump, has maintained that the practice is based on faulty constitutional interpretation and serves as an incentive for undocumented migration. The Trump administration has called it “birth tourism”.
Here’s what to expect from Thursday’s hearing:
What time will it start?
The hearing will start at 9am local (14:00 GMT).
What is at stake?
The most fundamental question that could be answered by the top court is whether birthright citizenship will be allowed to continue.
Proponents point to the US Constitution’s 14th Amendment, ratified in 1868, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”.
A subsequent 1898 Supreme Court case, United States v Wong Kim Ark, interpreted the language as applying to all immigrants, creating a precedent that has since stood.
Some studies estimate that about 150,000 immigrant infants are born with citizenship every year under the policy.
The Trump administration, in contrast, has embraced the theory that babies born to noncitizens are not “subject to the jurisdiction” of the US, and therefore are not constitutionally guaranteed citizenship.
Speaking to reporters in April, Trump described a scenario of “tourists coming in and touching a piece of sand and then all of a sudden, there’s citizenship”. He has embraced the theory that the 14th Amendment was meant to apply only to former slaves, and not newly arriving immigrants
At the time, Trump predicted it would be “easy” to win the case based on that logic.
Could the outcome be more complicated?
Yes. The Trump administration has taken a strategically unique tack in the case.
In their emergency filing to the Supreme Court, they have focused on the actions of the three judges who blocked Trump’s order from going into effect nationwide.
They argue the orders extend beyond the judges’ authorities and should only apply to the plaintiffs or jurisdictions directly connected to Trump’s executive order.
Theoretically, the Supreme Court could rule on whether the judges can issue nationwide injunctions, without ruling on whether birthright citizenship is, in fact, protected by the Constitution.
For example, if the justices rule that the lower judges exceeded their power, but do not make a determination on the constitutional merits of birthright citizenship, the executive order would only be blocked in the 22 states that successfully challenged Trump’s order.
Attorneys General in those states had challenged the order in a joint lawsuit, with a federal judge in Massachusetts ruling in their favour in February.
Birthright citizenship would effectively be banned in 28 other states unless they also successfully challenge the order or until the Supreme Court makes a future ruling.
The possibility has split legal scholars, with some arguing it is unlikely the Supreme Court would make the narrower decision on the scope of the lower judges’ power without also ruling on the underlying constitutional merits of birthright citizenship.
Could the ruling extend beyond birthright citizenship?
Yes. If the justices do decide to only address the scope of the lower judges’ power, the implications could extend far beyond the birthright citizenship question.
It would also apply to several other Trump executive orders that have been blocked by a federal judge’s national injunction, also called “universal injunctions”. Those include several Trump executive orders seeking to unilaterally transform the federal government, the military, and how funding is disbursed to states, to name a few.
In a written filing in the birthright citizenship case, the Department of Justice pointed to the wider implications, saying the need for the Supreme Court’s “intervention has become urgent as universal injunctions have reached tsunami levels”.
Meanwhile, the plaintiffs in the Maryland case that successfully challenged Trump’s birthright order said doing away with national injunctions would create different tiers of rights depending on an individual’s geographical location.
“An infant would be a United States citizen and full member of society if born in New Jersey, but a deportable noncitizen if born in Tennessee,” they wrote in a court filing.
