What’s next for birthright citizenship after Supreme Court limits nationwide injunctions
The Supreme Court on Friday handed down a highly-anticipated ruling involving President Donald Trump’s Day 1 executive order to effectively end birthright citizenship.
But many questions remain about how such an order would be carried out on a practical level.
And while the court’s conservative majority limited nationwide injunctions issued by federal judges against the order, the court did not rule on whether the order itself is constitutional.
Still, the decision could lead to a radical reshaping of a legal right to citizenship that’s been long guaranteed by the 14th Amendment — at least in the short term.
Effective immediately, the administration can begin planning for how it would implement an end to birthright citizenship.
Trump’s order itself has a 30-day grace period before taking effect, meaning right now there is no change to birthright citizenship and children born everywhere in the country are still U.S. citizens.
Regulations will need to be drafted and specifics of such an order still need to be addressed: for example, will every pregnant woman in America now need to go to the hospital with a passport or birth certificate?
The White House on Friday had no clear answers when pressed for specifics.
Federal district courts in Maryland, Massachusetts and New Hampshire will soon have to revisit nationwide injunctions issued there in light of the court’s decision and tailor or narrow them to apply only to the plaintiffs who brought these cases.
The plaintiffs were 22 states, immigrant advocacy groups and a number of pregnant noncitizen women.
Challengers to Trump’s executive order will continue to litigate the order on the merits. No court has directly considered the constitutionality of the executive order, though three lower courts have said it would appear to plainly violate the 14th Amendment and there are three longstanding Supreme Court precedents unambiguously upholding birthright citizenship.
But for the remaining 28 states that have not sued, Trump’s attempts to end birthright citizenship could go into effect in as soon as 30 days.
Challengers can and will also fight broad implementation in other ways as it moves forward.
On Friday, one group filed a class action lawsuit seeking broad protection of all noncitizen pregnant women, even those who are not plaintiffs.
In a concurring opinion, Justice Brett Kavanaugh indicated plaintiffs might also be able to challenge the administration’s citizenship regulations, once issued, under the Administrative Procedures Act.
Attorney General Pam Bondi, though, struggled on Friday to address how exactly administration is planning to implement Trump’s order.
Asked who would be tasked with vetting citizenship (for example, whether it would be nurses or doctors as babies are being born) Bondi only responded: “This is all pending litigation.”
Another reporter asked Bondi, “If you have an undocumented baby, would that baby then be an enforcement priority?”
“The violent criminals in our country are the priority,” Bondi deflected.
What’s next for nationwide injunctions?
More broadly, the administration will likely seek to roll back nationwide injunctions blocking Trump policies in other cases.
Those hearings and decisions will play out in the coming weeks.
“These injunctions have blocked our policies from tariffs to military readiness to immigration to foreign affairs, fraud, abuse and many other issues,” Bondi said on Friday. “The judges have tried to seize the executive branch’s power and they cannot do that. No longer.”
President Trump said similarly as he celebrated the ruling.
“So, thanks to this decision, we can now promptly filed to proceed with these numerous policies and those that have been wrongly enjoined on a nationwide basis, including birthright citizenship, ending sanctuary city funding, suspending refugee resettlement, freezing unnecessary funding, stopping federal taxpayers from paying for transgender surgeries and numerous other priorities of the American people,” the president said.