Birthright Citizenship Debate Erupts as Supreme Court Arguments Near

President Trump’s efforts to upend the conventional understanding of birthright citizenship heads to the Supreme Court this week, the first time in his second term that the justices will consider a major administrative action from the bench.

The justices won’t be directly addressing the constitutionality of Trump’s order blocking automatic citizenship for children born on U.S. soil to noncitizens, for now. The administration has so far only asked the justices to narrow the nationwide reach of several district judges’ injunctions, contending they went too far.

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The order has been challenged in 10 different lawsuits, several of which are now before the Supreme Court on its emergency docket.

In a rare move for an emergency appeal, the justices on Thursday will hold oral arguments on the matter of nationwide injunctions before deciding whether lower courts can issue such injunctions when ruling against Trump’s order.

But looming in the background is the major debate over the 14th Amendment’s Citizenship Clause, a dispute contested across the political spectrum, including in conservative legal circles, that could ultimately reach the high court.

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“When they finally consider this question, the justices will find that the case for Mr. Trump’s order is stronger than his critics realize,” wrote University of Minnesota law professor Ilan Wurman and Georgetown University law professor Randy Barnett.

Proponents of Trump’s plan have zeroed in on a qualification in the Citizenship Clause that narrows birthright citizenship to children born in the U.S. who are “subject to the jurisdiction thereof.”

That exception has traditionally been interpreted to exclude foreign diplomats’ children, foreign enemies in hostile occupation or Native American children subject to tribal laws. But some say the children of noncitizens fall under that umbrella, too.

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U.S. Circuit Judge James Ho, a member of the conservative-leaning 5th U.S. Circuit Court of Appeals, who is seen as a possible Supreme Court nominee if a vacancy arises during Trump’s term, seemingly shifted his views on the subject after insisting that the widely accepted view of birthright citizenship is the right one.

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{snip} But in an interview with conservative law professor Josh Blackman in November, days after Trump was elected president, the judge walked back his position.

“No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” he said.

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