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The Justice Department is asking the Supreme Court to settle the constitutionality of President Trump’s executive order restricting birthright citizenship.
It brings the battle back to the court just months after its 6-3 conservative majority sided with the administration by ruling that judges could not issue universal injunctions blocking the birthright citizenship order nationwide.
That decision did not address the constitutionality of Trump’s directive. Friday’s petitions tee up the question, urging the justices to bless the president’s upending of the conventional interpretation of the 14th Amendment.
“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. Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people,” Solicitor General D. John Sauer wrote.
The petitions have not yet been docketed, but The Hill reviewed copies provided by the Justice Department.
Signed on Trump’s first day in office, his executive order curbs birthright citizenship for children born on U.S. soil if they don’t have at least one parent with permanent legal status.
Every court that has directly confronted its constitutionality has found it violates the 14th Amendment’s guarantee of birthright citizenship, which has long been held to include only narrow exceptions, like for the children of diplomats and enemy invaders.
Friday’s filing marks the second time the administration has brought the legal battle to the Supreme Court.
In late June, the court agreed to wipe several universal injunctions that judges had issued blocking Trump’s executive order nationwide, saying those orders swept too far.
But the high court still left the door open for nationwide orders in some cases, including via class action lawsuits. Plaintiffs have since convinced several judges to do so, keeping Trump’s order from going into effect anywhere.
The administration is appealing two such cases to the Supreme Court.
The Justice Department seeks review of a Seattle-based appeals panel’s ruling in July that sided with a group of Democratic-led states and blocked Trump’s order nationwide. The administration is also appealing a similar order from a judge in New Hampshire issued in response to a lawsuit filed by the American Civil Liberties Union.
The Justice Department wants the justices to take the case up for their upcoming term, so a decision can land by next summer.
The Supreme Court has regularly sided with the Trump administration in emergency appeals, but it has yet to fully resolve a challenge to a major administration policy on its normal, merits docket.
Taking up the birthright citizenship order would add to arguments already scheduled this fall on the legality of Trump’s tariffs and his ability to fire independent agency leaders without cause.