WASHINGTON (CN) — Democratic states and immigrant advocates told the Supreme Court on Friday that the Trump administration wouldn’t be harmed by following over a century of established law, pushing the justices to reject the president’s emergency appeal to end birthright citizenship for certain children of immigrants.
“Being directed to follow the law as it has been universally understood for over 125 years is not an emergency warranting the extraordinary remedy of a stay,” a group of states led by Washington wrote.
Moreover, advocacy groups for immigrants said the bid to end birthright citizenship violated the country’s ethos.
“The order conflicts with the bedrock principle that ours is ‘a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.’” CASA, an advocacy group, wrote.
Last month, President Donald Trump asked the justices to enforce a limited version of his Day 1 order unilaterally ending the long-recognized right after three lower courts put nationwide pauses on the policy. The administration proposed restricting the injunctions to the plaintiffs suing the administration.
Washington state lambasted the patchwork solution, arguing that it would jeopardize some newborns’ citizenship.
“That unworkable rule would leave tens of thousands of infants born on U.S. soil undocumented, subject to removal or detention, and many stateless, even though they have done nothing wrong,” the states wrote.
CASA and the Asylum Seeker Advocacy Project represent over 800,000 members across all 50 states. The groups said universal relief was the only solution that protected all of its members.
“Requiring newborns covered by the executive order to show that their parents are members of CASA or ASAP to obtain the benefits of the injunction would impose an enormous burden on expecting parents, membership organizations, government employees at all levels, and hospital staff,” the groups wrote. “Those determining a baby’s citizenship status would be tasked with confirming parentage, the citizenship or immigration status of both parents, and membership in specific organizations.”
Birthright citizenship was enacted to repudiate Dred Scott v. Sandford. The infamous 1857 Supreme Court decision legalized slavery and denied the legality of Black citizenship. After the Civil War, however, the 14th Amendment declared that “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.”
Trump’s “Protecting the Meaning and Value of American Citizenship” executive order aimed to limit citizenship rights to people born to one or more parents who are already U.S. citizens. The novel reading of the right argues that people in the country illegally or temporarily are not “subject to the jurisdiction” of the United States.
Trump’s executive order has been unilaterally blocked by the lower courts.
At the Supreme Court, Trump brushed aside those claims to focus on what his administration sees as judicial encroachment on the executive branch.
“Whatever this court’s views of the lawfulness of the citizenship order, universal injunctions are plainly inappropriate means of redressing any harms to respondents,” Trump wrote in his emergency appeal.
The states, however, pleaded with the justices to rein in Trump’s use of emergency appeals after losing in the lower courts. Trump has two other emergency applications before the justices seeking to restart deportation flights, prevent the funding of teacher grants and avoid reinstating federal government employees.
“If this court steps in when the applicant is so plainly wrong on the law, there will be no end to stay applications and claims of emergency, undermining the proper role and stature of this court,” the states wrote.
On birthright citizenship alone, the Justice Department filed three concurrent emergency appeals challenging nationwide injunctions from Maryland, Massachusetts and Washington.
Trump argued that the rulings prevented him from enforcing the country’s immigration laws, but Washington state said the pause protects the citizenship for U.S.-born children who have never crossed the border.
“Even if the federal government fears ‘birth tourism’ (about which it offered no evidence to the district court), it is not the federal government’s policies or beliefs that reign supreme over this land — it is the Constitution,” the states wrote.
The federal government will file a reply, and then the Supreme Court could issue an order at any time.