Justices to Weigh Birthright Citizenship-Related Injunctions, But Won’t Consider Underlying Issue

The Supreme Court will hear oral arguments Thursday in a case that stems from President Donald Trump’s order on birthright citizenship. But the court won’t be ruling on the constitutionality of Trump’s executive order, but rather on the issue of nationwide injunctions.  

“This case is not about the underlying merits,” GianCarlo Canaparo, a Heritage Foundation senior legal fellow, said on a call with reporters last week, adding that the acting U.S. solicitor general was very strategic in asking the Supreme Court to look at the nationwide injunctions issue, instead of the merits of the broader case.  

On his first day in office, Trump signed an executive order limiting the interpretation of birthright citizenship.  

Historically, the 14^th Amendment, 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,” has been interpreted to mean anyone born within the borders of the U.S. is a citizen. But Trump’s executive order focuses on the phrase “subject to the jurisdiction thereof,” and holds that those born to parents who are not in the U.S. legally are not subject to U.S. jurisdiction and are therefore not legal citizens.  

Almost immediately after Trump signed the order, lawsuits were filed to block it. Three courts have now issued nationwide injunctions on the order, meaning the courts ruled that not only can the order not be enforced against the parties who brought the lawsuit, nor against anyone else in the nation.  

For years, there has been debate among legal experts as to whether nationwide injunctions are lawful or not, and now the Supreme Court has the opportunity to provide a definitive answer.  

If the Supreme Court rules that lower courts don’t have the authority to issue nationwide injunctions, then Trump’s order preventing automatic citizenship to babies born to parents who are illegal aliens in the U.S. would go into effect in areas of the country where courts have not ruled to block the order.  

Amy Swearer, another senior legal fellow at The Heritage Foundation, says the legal case that looks at the constitutionality of Trump’s executive order on birthright citizenship is likely “going to be a much longer drawn-out legal battle.”  

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