On his first day in office, President Trump issued an executive order intended to end birthright citizenship, a foundational principle that grants U.S. citizenship to all children born on U.S. soil. That right has been enshrined in the Constitution for more than 160 years.
Lawsuits challenging the directive were swiftly filed, and judges in several states issued nationwide injunctions to stop the order from going into effect. But on Friday, the Supreme Court sided largely with the Trump administration. Though it did not rule on the constitutionality of the executive order on birthright citizenship, it did reject the nationwide injunctions that had blocked the order — clearing the way for it to be applied, at least temporarily, in a majority of states.
That leaves a lot of questions. Will babies born to undocumented immigrants in some states be entitled to citizenship, but not in others? Can children born to such parents in states where the order is in effect be deported? Will a new court challenge start the argument all over again?
Nothing is certain. But here’s a look at how the next chapter of the debate is likely to unfold.
Do the birthright citizenship restrictions now take immediate effect?
No. Immigrant rights groups and 22 states, all with Democratic leadership, had sued over the birthright citizenship order, and three federal district courts vacated the policy. Among those states were Arizona, California, Maryland, New York, North Carolina and Washington. Challengers in those states will most likely try again.
In 28 states that had not challenged the order, such as Arkansas, Mississippi, North Dakota and Texas, the order can go into effect. But the Supreme Court imposed a 30-day delay before that can happen, leaving time for any new legal maneuvers.
What’s next for the legal challenges?
While the Supreme Court rejected the ability of a single federal judge to block enforcement of a presidential order across the country, the justices did carve out other legal pathways for those trying to challenge an executive order such as the birthright citizenship measure.
One of them, they suggested, might be a class-action lawsuit, in which a group of plaintiffs is certified to represent a large class of people who are similarly affected and have standing to sue together.
Already on Friday, plaintiffs were revising their legal challenges as class-action lawsuits. But before they can even begin to raise the merits of their constitutional challenge, a judge must approve the “class.” The 30-day delay imposed by the Supreme Court gives lawyers time for legal regrouping — but not much.
“The court decision today means that unless a court certifies a class action within the next 30 days, the Trump administration can start to implement its repeal of birthright citizenship,” said Stephen Yale-Loehr, an immigration scholar at Cornell Law School.
Some immigrant advocacy groups have asked a federal judge in Maryland for an emergency block, and they have also refiled their lawsuit seeking class-action certification to include every pregnant woman or every child born to a family lacking permanent legal status, regardless of where they live.
The A.C.L.U., along with other civil-rights groups, also promptly filed a new lawsuit seeking class-action certification.
“The Constitution guarantees birthright citizenship, and no procedural ruling will stop us from fighting to uphold that promise,” said Tianna Mays, legal director for Democracy Defenders Fund. “Our plaintiffs, and millions of families across this country, deserve clarity, stability and justice. We look forward to making our case in court again.”
Will there now be stateless babies born in the United States?
Babies born to immigrants without full legal status in the 28 states where there was no challenge to the executive order could be deprived of U.S. citizenship, raising concerns that a month from now, if Mr. Trump’s order goes into effect, there could be newborns who are stateless and vulnerable to deportation.
Some babies would be able to acquire the foreign citizenship of their parents, if their country of origin allows that. However, if they were born to parents from countries that do not recognize derivative citizenship through a parent, the babies could end up stateless. Among countries that allow derivative citizenship are Mexico, Brazil and Poland.
If a baby is born in a state that supports the Trump administration in opposing birthright citizenship, such as Texas, the child would not be eligible for a U.S. passport, nor for health and social benefits available only to citizens.
Would babies born to undocumented parents be deportable?
On Friday, Attorney General Pam Bondi evaded questions about who would be responsible for vetting citizenship under Mr. Trump’s policy and whether medical professionals would be responsible for verifying the citizenship of new parents.
“This is all pending litigation,” Ms. Bondi said, predicting that such questions would be decided in the court’s next term.
Several legal scholars have said that the children’s ability to remain in the country would most likely be tied to the immigration status of their parents. For example, if a child was born to two parents who were undocumented, the government could decide to deport all of them if it had a basis for deporting the parents.
“I don’t see the government going after babies, to try to deport babies independently of their parents,” said Cristina Rodriguez, a professor at Yale Law School. “What will matter is the status of the parents, in which case there is no bar for removing the babies along with parents.”
Would babies born to parents on temporary visas be deportable?
Under Mr. Trump’s order, children of people on visas to study and work in the United States would also be ineligible for automatic citizenship.
For example, babies born to a parent on a temporary work visa, such as the skilled-worker H-1B, would be deprived of U.S. citizenship.
It is possible that these babies would inherit their parents’ status as temporary legal immigrants. That would make it complicated, or impossible, for them to obtain benefits, but they would be unlikely to be deported.
“They just won’t get birth certificates,” Ms. Rodriguez said.
What if the Supreme Court eventually invalidates the birthright citizenship order?
Depending on how the new cases are decided, it is possible that thousands of children born in the next few months will not have automatic U.S. citizenship, even if the Trump administration ultimately loses its bid to win the Supreme Court’s constitutional endorsement of the order.
It is possible that those children could be retroactively granted citizenship, several legal analysts said, but that would require a bureaucratic process.
“Practically, it could be a gigantic hassle, and there could be significant consequences,” Ms. Rodriguez said. “Families could have been deported and children deprived of lifesaving medical care.”
Many other issues remain unclear, such as what would happen to split families in which some children are born to undocumented parents who later become legal residents and have additional children — who would qualify for citizenship even under Mr. Trump’s order.
“The practical problems of ending birthright citizenship are both huge and unpredictable,” Mr. Yale-Loehr said.
Zolan Kanno-Youngs contributed reporting.
Miriam Jordan reports from a grass roots perspective on immigrants and their impact on the demographics, society and economy of the United States.
The post What the Supreme Court’s Ruling Will Mean for Birthright Citizenship appeared first on New York Times.
