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Jack Birle


NextImg:DOJ asks Supreme Court to review birthright citizenship order

The Trump administration has filed a pair of petitions to the Supreme Court asking the justices to hear appeals on its birthright citizenship order, cases which could add to the growing list of questions related to President Donald Trump‘s actions that the high court will consider in its upcoming term.

The two petitions appeared on the Supreme Court’s public docket Monday, after being filed late Friday, and they urged the justices to take appeals in both cases, which were brought by Democrat-led states and a group of people who could be affected by Trump’s order.

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The question presented to the high court in both petitions centers around the president’s January executive order claiming birthright citizenship under the 14th amendment does not include children born on U.S. soil to parents who are in the country illegally or on a temporary basis, such as on a visa. The order, which would not be retroactive, states that if one of the parents is a permanent resident or U.S. citizen at the time of the child’s birth, then he or she would get citizenship at birth. The Supreme Court has been asked to determine if the executive order is lawful under the 14th Amendment.

“The issues in this petition are unquestionably cert-worthy,” the DOJ’s petition said, urging the high court to take up the case. “The government has a compelling interest in ensuring that American citizenship—the privilege that allows us to choose our political leaders—is granted only to those who are lawfully entitled to it.”

“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,” the filing added.

The two appeals come in Trump v. Washington and Trump v. Barbara, with the DOJ submitting its Barbara petition before the case has worked its way through the lower courts. In the Washington case, various states sued the Trump administration to block the order, succeeding in both the district court and the appeals court, while in the Barbara case, a class action suit was successfully brought to halt the order in federal district court in New Hampshire, but has not made its way through a federal appeals court.

The Justice Department has asked the Supreme Court to grant both cases for review simultaneously because the states in the Washington case may lack the standing to bring the lawsuit against the order, as the lone dissenting judge in the appeals court ruling found. The DOJ argues both cases should be heard so that the merits of the executive order can come before the justices.

“If the Court grants review in only Washington, therefore, threshold obstacles could prevent it from reaching the merits. At a minimum, the Court would need to expend judicial resources resolving a contested question of Article III standing. Granting certiorari before judgment in Barbara would avoid those concerns. This Court may reach the merits of a case so long as at least one party before it has standing,” the filing said.

Should the justices agree to hear the cases, it would mark the second time Trump’s birthright citizenship order would make its way to the Supreme Court. Earlier this year, the birthright citizenship order was the vehicle for the Supreme Court’s review of universal injunctions in Trump v. CASA, which limited the power of lower courts to issue universal injunctions while not yet ruling on the merits of the executive order.

If granted for plenary review, the pair of cases about Trump’s birthright citizenship order would join other cases challenging Trump actions that the Supreme Court has already teed up for review in their upcoming term.

The Supreme Court will hear a pair of consolidated challenges to Trump’s sweeping “Liberation Day” tariffs, which include the “reciprocal tariffs” on dozens of countries worldwide and the targeted tariffs on Mexico, Canada, and China, over their alleged role in the fentanyl crisis.

The question presented to the high court asks if the International Emergency Economic Powers Act allows the president to implement tariffs, as Trump asserted when creating the “Liberation Day” tariffs. The high court will hear oral arguments for that pair of cases on Nov. 5.

WHO LOSES LEGAL STATUS IF TRUMP’S BIRTHRIGHT CITIZENSHIP AND DEPORTATION AGENDA SUCCEEDS?

The other key Trump action to which the justices will hear a challenge is the president’s firings of independent agency heads, including FTC commissioner Rebecca Slaughter. The Supreme Court agreed to hear the DOJ appeal of Slaughter’s firing before it worked its way through the lower courts, after the case became the third challenge to independent agency leader firings to make it on the high court’s emergency docket.

The Supreme Court will look at whether to overrule its 1935 ruling in Humphrey’s Executor v. United States, which found a president could not fire an FTC commissioner at his discretion and could only fire him “for cause,” as outlined in the law passed by Congress authorizing the creation of the FTC. The high court has set a briefing schedule aligned for oral arguments in December.