WASHINGTON (AP) — The Supreme Court will hold a closed session Friday on a high-profile issue: President Donald Trump's birthright citizenship order, declaring that children born to parents who are in the United States illegally or temporarily are not American citizens.
The justices could say as early as Monday whether they will hear Trump's appeal of lower court decisions that struck down the citizenship restrictions entirely. They have not taken effect anywhere in the United States.
If the court intervenes now, the case will be heard in the spring, with a final decision expected by early summer.
The birthright citizenship order, which Trump signed on the first day of his second term in the White House, is part of his administration's sweeping crackdown on immigration. Other actions included strengthening immigration controls in several cities and the first peacetime use of the 18th-century Foreign Enemies Act.
The administration has faced numerous lawsuits and the high court has given mixed signals in its emergency orders. Judges effectively ended the use of the Alien Enemies Act to quickly deport alleged Venezuelan gang members without court hearings and allowed the resumption of large-scale immigration stops in the Los Angeles area after a lower court blocked the practice of stopping people solely based on their race, language, job or location.
The justices are also considering the administration's emergency call for permission to deploy National Guard troops to the Chicago area for immigration enforcement efforts. The lower court indefinitely banned the posting.
Birthright citizenship is the first Trump immigration-related policy to reach the courts for final ruling. Trump's order would upend more than 125 years of understanding that the 14th Amendment to the Constitution grants citizenship to everyone born on American soil, with narrow exceptions for the children of foreign diplomats and children born to foreign occupying forces.
In a series of decisions, lower courts struck down the executive order as (or likely to be) unconstitutional, even after a Supreme Court ruling in late June limiting judges' use of nationwide injunctions.
While the Supreme Court has limited the use of nationwide injunctions, it has not ruled out other injunctions that could have nationwide effects, including in class actions and lawsuits brought by states. At the time, the justices had not decided whether the basic citizenship order was constitutional.
But all the lower courts that have considered the issue have found that Trump's order violates or is likely to violate the 14th Amendment, which was intended to guarantee citizenship to black people, including former slaves.
The administration is appealing two cases.
The 9th U.S. Circuit Court of Appeals in San Francisco ruled in July that a group of states suing over the ruling needed a nationwide injunction to prevent problems that could arise from birthright citizenship operating in some states and not others.
Also in July, a federal judge in New Hampshire blocked a citizenship order in a class-action lawsuit involving all affected children.
The American Civil Liberties Union, which is leading the legal team in the New Hampshire case, urged the court to reject the appeal because “the administration's arguments are so unpersuasive,” said ACLU attorney Cody Wofsey. “But if the court decides to hear the case, we are more than ready to accept Trump and win.”
Birthright citizenship automatically makes anyone born in the United States an American citizen, including children born to mothers in the country illegally, under longstanding rules. This right was enshrined shortly after the Civil War in the first sentence of the 14th Amendment.
The administration has said that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore have no right to citizenship.
“The lower court's decisions have invalidated policies of utmost importance to the President and his administration in ways that undermine the security of our borders,” Solicitor General D. John Sauer wrote in calling for the high court to review the case. “These decisions grant, without legal justification, the privilege of American citizenship to hundreds of thousands of unqualified people.”
