Charleston, South Carolina – The Trump administration is taking its efforts to redefine birthright citizenship to the Supreme Court, a move that the South Carolina attorney general believes will provide needed clarity on how to interpret the constitutional provision.
The administration filed emergency applications with the Supreme Court on Thursday, seeking to impose some restrictions on birthright citizenship while legal challenges to President Trump’s Jan. 20 order are pending.
District judges in Maryland, Massachusetts, and Washington have temporarily blocked the order that would end birthright citizenship nationwide.
The administration wants the Supreme Court to narrow those decisions, claiming that individual judges lack the authority to impose nationwide injunctions.
The administration instead wants the justices to let Trump’s plan take effect for everyone except the few people and groups who sued, claiming that the states lack the legal right, or standing, to challenge the executive order.
As a fallback, the administration requested “at a minimum” the ability to make public announcements about how they intend to implement the policy if it is eventually allowed to go into effect.
The 14th Amendment guarantees that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The amendment, ratified after the Civil War, sought to grant citizenship to formerly enslaved people.
In a landmark Supreme Court case decades later, the court ruled that birthright citizenship applies to anyone born in the United States, regardless of their parents’ nationality or immigration status.
In their complaint challenging Trump’s executive order on January 21, the attorneys general of 22 states cited that decision.
“More than 125 years ago, the Supreme Court confirmed that this entitles a child born in the United States to noncitizen parents to automatic citizenship,” the authors wrote. Congress codified this understanding in the Immigration and Nationality Act (8 U.S.C. § 1401).” And the Executive Branch has long acknowledged that any attempt to deny citizenship to children based on their parents’ citizenship or immigration status is “unquestionably unconstitutional.”
However, some, such as South Carolina Attorney General Alan Wilson, argue that the 14th Amendment has been misinterpreted over time and that the Framers never intended for it to be universally applicable.
“It has been misinterpreted over the last 160 years to incentivize the ridiculous notion that somebody can come to the United States in the dead of night, drop a child like an anchor — like a boat drops an anchor — and all of the sudden they have been bestowed citizenship henceforth, evermore,” Wilson said during a news segment on March 17.
“It’s a nonsensical argument that birthright citizenship should bestow upon people the same rights as people who were born here by people who were lawfully present,” according to him.
Wilson joined 18 Republican-led states in filing a brief in the United States Court of Appeals defending Trump’s executive order.
“This case isn’t about whether birthright citizenship is guaranteed by our Constitution. They wrote, “It is.” “Instead, the proper framing of this case asks where the limits of birthright citizenship end.”
Wilson said Monday that he thinks the Supreme Court could answer that question.
“This executive order has created a vehicle for us to go to the Supreme Court to get clarity on this issue,” he told reporters. “I think that they could rule in our favor, and I’m hopeful that they will.”