President Trump\u2019s 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. <\/p>\n\n\n\n
The justices won\u2019t be directly addressing the constitutionality of Trump\u2019s 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\u2019 injunctions, contending they went too far. <\/p>\n\n\n\n
But the case has already invigorated a debate on the legal right about whether the president\u2019s shake-up is valid. <\/p>\n\n\n\n
Trump suddenly disrupted the status quo on his first day back in office. He issued an executive order that would restrict birthright citizenship for children born on U.S. soil whose parents don\u2019t have permanent legal status. He promised such action on the campaign trail.<\/p>\n\n\n\n
The order has been challenged in 10 different lawsuits, several of which are now before the Supreme Court on its emergency docket. <\/p>\n\n\n\n
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\u2019s order.<\/p>\n\n\n\n
But looming in the background is the major debate<\/u><\/a> over the 14th Amendment\u2019s Citizenship Clause, a dispute contested across the political spectrum, including in conservative legal circles, that could ultimately reach the high court. <\/p>\n\n\n\n Most academic scholars have long espoused the view that birthright citizenship applies to nearly anyone born in the country, with few exceptions. <\/p>\n\n\n\n Within the conservative legal community, the debate has already come to the forefront in digesting Trump\u2019s order through a competing series of academic papers, legal blog posts and even live, in-person debates. <\/p>\n\n\n\n Two law professors raised the debate\u2019s profile in February when they signaled in a New York Times op-ed that Trump might emerge victorious if the Supreme Court weighed the matter. <\/p>\n\n\n\n \u201cWhen they finally consider this question, the justices will find that the case for Mr. Trump\u2019s order is stronger than his critics realize,\u201d wrote University of Minnesota law professor Ilan Wurman and Georgetown University law professor Randy Barnett. <\/p>\n\n\n\n Proponents of Trump\u2019s plan have zeroed in on a qualification in the Citizenship Clause that narrows birthright citizenship to children born in the U.S. who are \u201csubject to the jurisdiction thereof.\u201d <\/p>\n\n\n\n That exception has traditionally been interpreted to exclude <\/strong>foreign diplomats\u2019 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. <\/p>\n\n\n\n Kurt Lash, a law professor and constitutional scholar at the University of Richmond, made that case in a paper first published to the online research platform Social Science Research Network in February. His latest updates have included input and critiques from a broader group of legal minds. <\/p>\n\n\n\n He argues that children born to noncitizens today are \u201canalogous\u201d to Native Americans at the time of the 14th Amendment who did not recognize the United States\u2019s sovereign authority, positing that noncitizens intentionally entered the country without authorization and likewise refuse to \u201cformally present themselves\u201d to American authorities. <\/p>\n\n\n\n \u201cAlthough the children would have presumptive citizenship, that presumption would be rebutted by their birth into a familial context of refused or counter-allegiance to the American sovereign,\u201d he wrote. <\/p>\n\n\n\n The burst of support for narrowing birthright citizenship has drawn plenty of critics. <\/p>\n\n\n\n Evan Bernick, a law professor at Northern Illinois University who describes himself as an originalist, wrote in post<\/u><\/a> to the legal blog The Volokh Conspiracy that he expects Lash\u2019s paper to be the \u201cleading academic defense\u201d of the constitutional position set out in Trump\u2019s order. Then he proceeded to dismantle it. <\/p>\n\n\n\n Bernick argued that<\/u><\/a> Lash\u2019s analogy between noncitizen children and the children of Native Americans contains \u201cfatal shortcomings,\u201d pointing to the fact that the \u201creality\u201d faced by noncitizens and their children doesn\u2019t match that of Native Americans at the time. <\/p>\n\n\n\n He noted that Native Americans could not be sued, prosecuted or bound without treaty-based consent. That\u2019s not true for noncitizens and their children. <\/p>\n\n\n\n \u201cDenying the children of undocumented people citizenship subjects them to all that power without affording them any protection, contrary to the basic allegiance-protection framework that undergirds Lash\u2019s theory,\u201d he wrote. <\/p>\n\n\n\n Bernick and Wurman, the op-ed author, squared off on the topic at a Federalist Society event last month<\/u><\/a>, one of several in-person legal conferences where birthright citizenship has become a hot topic. <\/p>\n\n\n\n There, Bernick said the conventional wisdom about birthright citizenship is correct, and \u201cobviously so.\u201d Wurman \u2014 also an originalist \u2014 pushed back that the matter is \u201cplainly not\u201d settled. <\/p>\n\n\n\n Though opinions still differ between conservative legal scholars, minds have been changed as well. <\/p>\n\n\n\n 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\u2019s term, seemingly shifted his views on the subject after insisting that the widely accepted view of birthright citizenship is the right one. <\/p>\n\n\n\n \u201cBirthright citizenship is guaranteed by the Fourteenth Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,\u201d Ho wrote in a 2006 paper<\/u><\/a>. <\/p>\n\n\n\n Ho, himself a Taiwanese immigrant, advanced those views for years, including in a 2011 Wall Street Journal op-ed<\/u><\/a>. But in an interview<\/u><\/a> with conservative law professor Josh Blackman in November, days after Trump was elected president, the judge walked back his position. <\/p>\n\n\n\n \u201cNo one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,\u201d he said. <\/p>\n\n\n\n Despite being hotly debated, these questions will not be directly before the justices on Thursday. <\/p>\n\n\n\n Instead, they are tasked with deciding whether lower courts can \u2014 as they\u2019ve done \u2014 issue nationwide injunctions when striking down Trump\u2019s order, as opposed to issuing relief to only those directly involved in litigation or living in states that sued the administration. <\/p>\n\n\n\n However, the appeal has opened Pandora\u2019s box. Dozens of states, lawmakers, scholars and advocacy groups weighed in with the court over whether the Constitution guarantees citizenship to the children of noncitizens born on U.S. soil. <\/p>\n\n\n\n \u201cThe President must participate in the political process and adhere to our constitutional structure, not simply ignore them,\u201d more than 180 Democratic lawmakers wrote in a friend-of-the-court brief, countering the government\u2019s stance. \u201cAnd unless and until Congress changes the laws, the President must follow them.\u201d <\/p>\n\n\n\n