WASHINGTON − President Donald Trump, in an emergency request Thursday, asked the Supreme Court to allow restrictions to birthright citizenship to take effect for some people as challenges to his executive order are litigated.
Multiple judges in separate cases across the U.S. blocked the order from going into effect and appeals courts have declined to lift the holds.
The Justice Department asked the Supreme Court to limit the scope of the pauses to specific challengers and to allow the administration to develop guidance on how it would implement Trump‘s directive if it is upheld.
The first federal judge to issue an opinion, U.S. District Judge John Coughenour in Seattle, called Trump’s order “blatantly unconstitutional.”
However, Trump says he believes the Supreme Court justices will agree that he can take the step as part of his effort to bolster security along the southern U.S. border. The president wants to end automatic citizenship for children born in the U.S. if neither of their parents is lawfully in the U.S.
Democratic state attorneys general, immigrant rights advocates and others challenging the order argue the Supreme Court made it clear in 1898 that the 14th Amendment’s citizenship clause guarantees children born in the U.S. the right to automatic citizenship regardless of their parents’ immigration status.
The Trump administration maintains the constitutional amendment was intended to help formerly enslaved people after the Emancipation Proclamation and doesn’t cover children of people who entered the country without proper authorization.
The Justice Department argued that the holds put on Trump’s policy are too broad and should not apply to “all 50 states and to millions of aliens across the country.”
“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” Sarah Harris, the acting solicitor general, told the court.
Last month, a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals − a trio of jurists appointed by former presidents Jimmy Carter, George W. Bush and Trump − denied Trump’s request that the hold on his order be largely lifted. Instead, the court set an expedited hearing schedule for the underlying issues to be debated in June.
U.S. Circuit Judge Danielle Forest, appointed by Trump during his first term, wrote in a separate concurrence that the administration hadn’t shown why earlier intervention was needed. She noted it’s routine for executive actions to be challenged in court, “particularly where a new policy is a significant shift from prior understanding and practice.”
“A controversy, yes. Even an important controversy, yes,” Forest wrote. “An emergency, not necessarily.”
When issues of significant public importance and political controversy are decided hours after legal briefs are filed, she added, “we should not be surprised if the public questions whether we are politicians in disguise.”
Appeals courts in Boston and in Richmond, Va., also rejected the administration’s request to limit the holds.
The Justice Department described its emergency ask to the Supreme Court as “modest relief” that would “correct the district courts’ massive remedial foul.”
