An executive order that the Republican president signed on his first day back in office in January would restrict birthright citizenship - a far-reaching plan that three federal judges, questioning its constitutionality, quickly halted nationwide through so-called “universal” injunctions.
“I do not expect the president’s executive order on birthright citizenship will ever go into effect,“ said Samuel Bray, a Notre Dame Law School professor and a prominent critic of universal injunctions whose work the court’s majority cited extensively in Friday’s ruling. Trump’s executive order directs federal agencies to refuse to recognize the citizenship of children born in the United States who do not have at least one parent who is an American citizen or lawful permanent resident, also called a “green card” holder.
The directive remains blocked while lower courts reconsider the scope of their injunctions, and the Supreme Court said it cannot take effect for 30 days, a window that gives the challengers time to seek further protection from those courts. The court’s six conservative justices delivered the majority ruling, granting Trump’s request to narrow the injunctions issued by the judges in Maryland, Washington and Massachusetts. Its three liberal members dissented.
A HOST OF POLICIES
In the birthright citizenship dispute, the ruling left open the potential for individual plaintiffs to seek relief beyond themselves through class action lawsuits targeting a policy that would upend the long-held understanding that the Constitution confers citizenship on virtually anyone born on U.S. soil.
“Given that the birthright-citizenship executive order is unconstitutional, I expect courts will grant those preliminary injunctions, and they will be affirmed on appeal,“ Bray said.
“I think in terms of the scope of the relief that we’ll ultimately get, there is no difference,“ said William Powell, one of the lawyers for the Maryland plaintiffs. “We’re going to be able to get protection through the class action for everyone in the country whose baby could potentially be covered by the executive order, assuming we succeed.”
STATES CHALLENGE DIRECTIVE
George Mason University constitutional law expert Ilya Somin said the practical consequences of the ruling will depend on various issues not decided so far by the Supreme Court.
New Jersey Attorney General Matthew Platkin, a Democrat who helped lead the case brought in Massachusetts, disagreed with the ruling but sketched out a path forward on Friday. The ruling, Platkin said in a statement, “recognized that nationwide orders can be appropriate to protect the plaintiffs themselves from harm - which is true, and has always been true, in our case.”
Legal experts said they expect a lot of legal maneuvering in lower courts in the weeks ahead, and the challengers still face an uphill battle.
Meanwhile, the 30-day clock is ticking. If the challengers are unsuccessful going forward, Trump’s order could apply in some parts of the country, but not others.
“The ruling is set to go into effect 30 days from now and leaves families in states across the country in deep uncertainty about whether their children will be born as U.S. citizens,“ said Elora Mukherjee, director of Columbia Law School’s immigrants’ rights clinic.
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