Trump asks Supreme Court to decide whether he can end birthright citizenship

By Devan Cole, John Fritze, CNN

(CNN) — The Trump administration asked the Supreme Court on Friday to review the constitutionality of President Donald Trump’s executive order seeking to end birthright citizenship, pushing the issue before the justices for the second time this year.

Despite more than a century of understanding that the 14th Amendment confers citizenship on people born in the United States, the Trump administration told the Supreme Court in an appeal that notion was “mistaken” and that the view became “pervasive, with destructive consequences.”

“The lower court’s decisions invalidated a policy of prime importance to the president and his administration in a manner that undermines our border security,” wrote Solicitor General D. John Sauer, the administration’s top appellate attorney. “Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people.”

CNN reviewed a copy of the appeal, which has not yet been docketed at the high court.

While the Supreme Court handed down an important decision in June that dealt with birthright citizenship, that case was technically focused on a more procedural question of how much power lower courts had to stop a policy implemented by a president. A 6-3 majority of the court essentially limited – but did not completely rule out – the power of courts to block those policies.

That decision sent states and individuals who were challenging Trump’s birthright order scrambling to file new cases to shut down the birthright policy through other means, including class-action lawsuits. The Supreme Court implicitly allowed those other types of nationwide blocks to continue.

A series of new rulings have continued to keep Trump’s policy on hold, and the administration is now asking the justices to take up those cases to settle the issue once and for all.

The administration has long expressed confidence that the high court would approve Trump’s policy. But it’s not entirely clear whether four justices will ultimately vote in favor of hearing the cases, as is required.

At issue are two of several lower-court rulings that have held up implementation of Trump’s policy since the high court’s more procedural ruling this summer. In July, a San Francisco-based federal appeals court upheld a Seattle judge’s ruling that blocked Trump’s policy nationwide in a case brought by a group of Democratic-led states.

A separate decision issued earlier that month by a judge in New Hampshire barred enforcement of Trump’s order against any babies who would be impacted by the policy in a class-action lawsuit brought by the American Civil Liberties Union.

The administration filed its appeal in both of those cases on Friday.

“The government has a compelling interest in ensuring that American citizenship – the privilege that allows us to choose our political leaders – is granted only to those who are lawfully entitled to it,” the administration wrote in those appeals.

The administration has in recent weeks appealed the ruling from New Hampshire to a Boston-based federal appeals court, but the intermediate court has not yet had a chance to weigh in on the matter.

“This executive order is illegal, full stop, and no amount of maneuvering from the administration is going to change that,” said Cody Wofsy, an ACLU attorney who argued the New Hampshire case. “We will continue to ensure that no baby’s citizenship is ever stripped away by this cruel and senseless order.”

A Justice Department spokesperson did not immediately respond to a request for comment.

Signed by Trump on January 20, the executive order, titled “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP,” said that the federal government will not “issue documents recognizing United States citizenship” to any children born on American soil to parents who were in the country unlawfully or were in the states lawfully but temporarily.

Three decades after the 14th Amendment was ratified in 1868, the Supreme Court ruled in US v. Wong Kim Ark that people born in the United States – in that case, the son of Chinese immigrants – are entitled to US citizenship, with a few narrow exceptions. But the administration argued in its appeal that the precedent has long been misunderstood.

The Wong Kim Ark decision recognized citizenship for people born in the United States who enjoyed “permanent domicil and residence” in the country, US Solicitor General Sauer argued.

“That limit,” Sauer wrote, “was central to the analysis.”

But those arguments have had no purchase in lower courts thus far.

The 9th Circuit said in a 2-1 ruling in July that Trump’s order contradicts the citizenship clause of the Constitution, Wong Kim Ark and decades of executive branch practice.

“The district court correctly concluded that the Executive Order’s proposed interpretation, denying citizenship to many persons born in the United States, is unconstitutional. We fully agree,” appeals court Judge Ronald Gould wrote for the majority.

This story has been updated with additional reporting.

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