President Donald Trump is asking the Supreme Court to revive his controversial policy to deny birthright citizenship to children born in the U.S. to undocumented immigrants and to visitors on short-term visas.
In petitions submitted to the high court on Friday, Solicitor General D. John Sauer asked the justices to hear arguments on the issue early next year, which would likely lead to a ruling by June.
If the high court acquiesces in that schedule, it would effectively highlight Trump’s anti-birthright citizenship drive months before the Congressional midterm elections that will be pivotal for Trump to keep carrying out his agenda.
A ruling in the president’s favor would be a major victory for his immigration agenda, while a defeat would allow him to blame the justices for blocking one of his key priorities.
Trump expressed urgency on the issue by signing an anti-birthright executive order on his first day back in office in January, but it has never been implemented because four federal judges hearing lawsuits over the effort ruled that it clearly violates the 14th Amendment and longstanding Supreme Court precedent.
“The Citizenship Clause of the Fourteenth Amendment was adopted to grant citizenship to freed slaves and their children, not to the children of illegal aliens, birth tourists, and temporary visitors,” Sauer wrote. “The plain text of the Clause requires more than birth on U.S. soil alone.”
However, all the district court judges to consider the issue in recent months rejected that position, often in withering terms. They pointed to a broad legal consensus that nearly everyone born in the U.S. acquires citizenship automatically at birth. The leading Supreme Court case on the issue, Wong Kim Ark v. U.S., held that a child born in the U.S. to parents from China was entitled to U.S. citizenship.
The Trump administration brought several birthright citizenship cases to the Supreme Court earlier this year, but only to ask the justices to use them as a vehicle to narrow the practice of individual federal judges issuing nationwide injunctions to block federal government policies. The high court granted that request in a 6-3 ruling in June, but did not opine on whether the underlying Trump policy is constitutional.
Sauer’s request is unusual because only one federal appeals court has ruled so far on the Trump policy. In July, a panel of the San Francisco-based 9th Circuit Court of Appeals voted, 2-1, to uphold a lower court judge’s injunction against the administration. The dissenting appeals judge said the states involved in that lawsuit lacked legal standing to bring the case, but he did not defend the constitutionality of Trump’s move.
The other appeals courts set to consider the issue have not yet ruled. The Supreme Court typically waits for multiple rulings and often takes up an issue only when the appeals court decisions conflict.
One of the lawsuits the administration is asking the justices to hear was filed in Seattle by the states of Washington, Arizona, Illinois and Oregon. The other was filed in New Hampshire by the American Civil Liberties Union on behalf of several immigrant parents.
Sauer’s petitions urge the court to take up the issue “this Term,” although he appears to be requesting a decision from the justices in the next one, which begins in just over a week.
The justices are set to meet Monday for their long conference, where they consider petitions that piled up during their summer break. However, the administration’s request that the court consider reviving the birthright policy won’t be on the justices’ official agenda for over a month because challengers to the policy are entitled to offer their views.
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