Questions about the oral argument on Thursday in the birthright citizenship controversy? We have answers.
On May 15, the Supreme Court is scheduled to hear oral arguments regarding the federal government’s efforts in order to implement President Trump’s Executive Order ending birthright citizenship, which guarantees citizenship to almost everyone born in the United States. The dispute is one of those relatively rare proceedings which came before the justices in an emergency appeal, on the so-called shadow docket. Only to be set for oral arguments. Here is more information on the dispute and upcoming oral arguments.
What are the justices actually considering on Thursday?
Though the dispute comes to the justices through challenges to Trump’s effort to end birthright citizenship, the primary issue before the court on Thursday is whether lower-court judges can issue what are known as universal injunctions to block an order nationwide. A federal judge, or several, can issue a universal order to prevent the government from enforcing a law, policy, or executive order anywhere in the United States. The Trump administration, who has been blocked from enforcing many of these injunctions over the past few months, claims that this practice is unconstitutional.
In almost all cases where the Supreme Court has heard oral arguments, it is after the losing party filed a petition of review, also known as a certiorari. The petition starts with a “question” – a question that the party wants the justices to consider. Unless the Supreme Court says otherwise, the question is before the justices.
In these cases, however, the Trump administration didn’t file a petition for judicial review. Instead, it filed an emergency application to partially block the orders issued in Maryland, Massachusetts, or Washington by district courts. The applications do not ask any questions, and the then-Acting Attorney General Sarah Harris, the government’s top Supreme Court lawyer, who filed them, described them as a “modest” request to limit the district courts’ orders rather than address the “important constitutional issues” raised by Trump’s executive order on citizenship by birthright. The justices can, of course take the discussion in Thursday’s argument anywhere they want. How many cases are there in total?
There will be three cases heard by the court on Thursday. Trump v. CASA was filed by immigrants’ right groups and several pregnant Maryland women; Trump v. Washington was filed in Seattle by four states; and Trump V. New Jersey in Massachusetts by 18 states, Washington D.C., and San Francisco. What happened in the lower court?
President Donald Trump started the events that led to Thursday’s arguments on Jan. 20 when he signed a executive order ending birthright citizen. The order, originally scheduled to take effect on February 19, would have prevented children born in the United States from automatically acquiring U.S. citizenship, if their parents had been in the country illegally, or temporarily, such as on a student or work visa. The 14th Amendment, adopted in 1868, incorporated birthright citizenship into the Constitution. The 14th Amendment established citizenship for Black people with the words “all persons naturalized or born in the United States.” This included former enslaved individuals freed during the Civil War, who were denied this right by the Supreme Court in its notorious 1857 Dred Scott v. Sandford decision. In federal courts across the country, several different challenges were filed against Trump’s order. In Seattle, four states – Washington Arizona Illinois and Oregon – filed a lawsuit which was later combined with another lawsuit filed by a number of expectant mothers. The order was declared “blatantly illegal” by Senior U.S. district judge John Coughenour. A federal appeals Court in San Francisco denied the government’s request that Coughenour’s injunction be put on hold, except for the individual plaintiffs. In Maryland, five women who are pregnant and fear their children won’t be eligible to become citizens of the United States, as well as two immigration rights groups with hundreds of thousands members filed a lawsuit. District Judge Deborah Boardman became the second judge on February 5 to prevent the government from enforcing Trump’s executive order. She said that “no court in the nation” has ever endorsed the interpretation of the president.
A federal appels court in Richmond Virginia declined to partially block Boardman’s ruling. Paul Niemayer, one of the judges who dissented, called the government’s request “modest”.
In Massachusetts, a group consisting of 18 states, two cities and New Jersey also went to court. U.S. District judge Leo Sorokin issued a nationwide injunction to prevent the enforcement of the executive orders. A federal appeals in Boston refused to partially pause Sorokin’s ruling. How did these cases reach the Supreme Court?
On the 13th of March, Harris went to the Supreme Court and asked the justices to partially halt each of the three orders made by Coughenour Boardman and Sorokin. She argued that instead of halting Trump’s executive order nationwide, district judges should be allowed to only block enforcement in respect of individual challengers and members of groups challenging the order who are named in the complaint. If the states have the legal right to sue, then the residents of those states should also be allowed to do so. Harris wrote that the Trump administration should be allowed to develop guidelines on how it would implement its executive order.
On the 17th of April, the Supreme Court announced it would hear the dispute’s oral arguments on May 15, just two weeks after its normal last oral argument for the term. It is unusual for the Supreme Court to hear arguments outside of their normal schedule. Although we do not know the exact reasoning, it is likely that some justices did not want the case to be argued in the fall. What is the main argument of the Trump administration?
The Trump administration’s filings (which are virtually identical) acknowledge that the challenges to birthright citizenship “raise important constitutional questions with major ramifications for securing the border.” But its focus in the filings is not on whether Trump’s executive order violates the Constitution, but rather on the district courts’ use of universal injunctions.
The Constitution, the Trump administration argues, does not give federal judges the power to issue universal injunctions. The government argues that federal judges are only allowed to issue judgments or orders regarding the rights of litigants in a case. The Trump administration claims that these types of universal injunctions “have reached epidemic proportions” since the beginning of Trump’s second tenure. It states that federal trial courts have issued more temporary restraining and universal injunctions “during the month of February 2025” than during the first three years under the Biden administration. The government suggests that people who are affected by an executive order could file a class-action lawsuit challenging the order, and seek temporary relief on behalf of the entire class. The government argues that this avoids the asymmetric stakes that come with nationwide injunctions. A ruling in a group action “binds all members of the class,” but losing a bid for a nationwide order “doesn’t stop others from trying to get it again.”
What are the other arguments that the Trump administration makes?
The Trump Administration addresses the issue of citizenship briefly. It contends that the Constitution clause that states that anyone “born or naturalized” in The government insists that people born in the United States must be “subject” to the jurisdiction of the United States. This hinges on whether or not someone “owes loyalty to, and is entitled protection from, United States.” It’s not enough, the government insists to simply require someone to follow U.S. laws to guarantee citizenship. The Trump administration argues that children whose parents have been in the United States temporarily or without proper documentation are not “subject to the political jurisdiction” of the United States. This is defined by the Trump administration as owing allegiance rather than being required to obey U.S. law. I covered the history of the birthright citizenship in the Supreme Court in February. The government claims that the states who are challenging the order don’t have standing to sue. The lower courts ruled that children born in another state could travel to the challenged states. However, the challenger states would have to pay for medical care and social services as the children would no longer be eligible for federal assistance. The government counters that the states have not provided any evidence that such a “speculative series of events” would be likely to occur, much less that they would happen before the dispute is resolved. The government also says that states cannot make claims on behalf their residents. What do the challengers have to say? The challengers argue that the Supreme Court has no right to comment on whether universal injunctions can ever be appropriate (or always ineffective). They say that what matters is whether these orders are appropriate in this case, which they insist they are. First, they argue that the government hasn’t shown that it would be permanently harmed without the district court’s orders being put on hold. This is one of the criteria courts use to decide whether or not to grant temporary relief. The Washington challengers say that the nationwide injunctions “preserve a status quo which has existed for over a century and the federal government does not suffer any harm, much less irreparable damage, by continuing to adhere to long-established laws while the appeals progress.” Furthermore, the states led New Jersey, stress that the appeals in each case are moving quickly, with arguments scheduled as early as the Ninth Circuit on June 4. The Washington challengers say that there is no chance the Supreme Court will grant review and reverse. The states, led by New Jersey, say that the emergency docket should not be used to ask for permission to violate the Court’s precedents.
This is a case where a universal order is needed to provide relief to all the challengers. The Washington challengers note that if injunctions are limited to only the states that have challenged the executive order and residents from one of those states give birth in another state, or residents of a non-challenging state move to one of those challenging states, then the Washington challengers warn that the states will suffer the same irreparable injury to their sovereign and financial interests as if no injunction was in place. The Maryland challengers argue that if this were true, the courts would not have been able to grant remedies for school segregation and racial discrimination. They argue that state and local governments would have to develop new systems for verifying citizenship at significant cost, “and anxious parents will be caught in between.”
What are the other arguments made by the challengers? They emphasize that the 14th Amendment guarantees citizenship to all those born in the United States who are “subject to its jurisdiction” – a fact that has been recognized by the Supreme Court and the federal government for many years. This includes virtually all children born here, regardless of their parents’ immigration status. The Washington challengers argue that, despite the federal government’s efforts to narrow the meaning of “subject to jurisdiction,” “the group of U.S. born individuals not subject to jurisdiction of the United States” is both small and well defined. For example, the Washington challengers write, “the group… of U.S. born individuals who are not subject to jurisdiction of the United States… is both extraordinarily limited and well defined.” This includes, for example, the children of foreign diplomats or foreign troops in the The states reject the Trump administration’s claim that they do not have standing to file their lawsuits. The Washington challengers tells the justices that “the unrebutted records” show that thousands of babies are born each year who will be affected by the executive order. The states say that without citizenship, they won’t be eligible for federally-funded health insurance and social service programs, such as Medicaid or foster care programs, that the state administers. The states claim that they will lose millions in federal funding each year, which is exactly the type of “direct financial injury” that would give them standing to file a lawsuit.
CASA, the Asylum Seeker Advocacy Project and the Government reject the claim that Boardman’s orders should only apply to the members of two groups identified by name on the documents in this case. They emphasize that The two groups 010010 They have been Elizabeth Prelog The Trump administration 010010 They claim that During the (A rule 010010 Critics say Critics claim Supporters of They cite Their supporters point These injun What do we 010010 In a Gorsuch called In an opinion
Amicus, or “friend of the court,” briefs are briefs filed by people or groups that are not part of the dispute before the court, but nonetheless seek to bring particular issues or perspectives to the court’s attention.
One brief in this case, by law professor Alan Morrison, urges the justices to deny the government’s request to pause the orders. He argues Morrison Morrison points 010010 If they are allowed, the state contends, “then every executive order, every law passed by Congress, and every action by the federal government becomes subject to complete and indefinite delay by any federal judge’s order.”
Where can I watch the oral argument?
Alas, although some federal appeals courts and the supreme courts in other countries (like Canada and the United Kingdom) provide a live video of their oral arguments, the U.S. Supreme Court does not. Since the CO You can access that livestream here.
SCOTUSblog will also be hosting a live blog of the oral arguments on May 15. We’ll We’ll The Trump administration This will be 010010 Jeremy Feigenbaum will represent the state of New Jersey and the local governments in this case. Kelsi Corkran will represent private individuals and immigration rights groups. She is the Supreme Court Director at Georgetown’s Institute for Constitutional Advocacy and Protection. All three lawyers were clerks for Supreme Court justices at one time: Feigenbaum was a clerk for Justice Elena Kagan; Corkran was a clerk for Justice Ruth Bader Ginsburg; and Sauer, for Justice Antonin Scalia. How long will the oral arguments last?
The Supreme Court officially allotted one hour to the oral arguments. It will probably last longer – perhaps even two or three hours.
Sauer is the first to speak. He will have the opportunity to speak for several minutes without interruption, and then he’ll be able to answer questions from the justices. This should take about 25 minutes. The justices then engage in what is called “round-robin” or “seriatim”, where each justice has a chance to ask a question, in order of seniority.
Feigenbaum will go next. He will have 15 minutes to answer questions and speak, followed by round-robin. The justices will then hear from Corkran who will also have 15 minute to speak and respond to questions, followed by round-robin questioning. Sauer will then have approximately five minutes to answer the questions asked by the justices to Feigenbaum and Corkran during their time at lectern. Normally, the justices do not interrupt this time. When will the justices make their decision?
Another great question and one that has no definitive answer. When the justices scheduled oral arguments for other cases on their emergency docket in the last few year, the timetables ranged from fairly quick to… not so quickly. Three years ago, the justices heard two emergency appeals that sought to block the Biden Administration’s vaccine mandates. The time between the filing of emergency appeals and the rulings by the justices, which were only six days following the oral arguments, was less than one month.
On a different note, during the 2023-24 session, it took more than nine months for the justices to act on a “emergency request” by a group states, led Ohio, to stop an Environmental Protection Agency rule that was intended to reduce air pollutants. The states filed the request on October 13, 2023. However, it wasn’t until late December when the justices scheduled oral arguments for the end of February. It was only in late June that the court issued its opinion. Here’s what we know: the court will almost certainly act upon the government’s request before its summer recess which usually begins around the end of June or beginning of July.
Posted in Emergency appeals and applications, Featured
Cases: Trump v. CASA, Inc., Trump v. Washington, Trump v. New Jersey
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Amy Howe
Questions about the oral argument on Thursday in the birthright citizenship controversy? We have some answers. ,
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