Lawyers for President Trump asked the Supreme Court on Thursday to lift a nationwide pause imposed on the president’s order ending birthright citizenship for the children of undocumented immigrants and foreign residents.
The move represents the first time the legal wrangling over the president’s order to end birthright citizenship has reached the Supreme Court. If the Trump administration succeeds, the policy could immediately go into effect in some parts of the country.
Three federal courts, in Massachusetts, Maryland and Washington State, had issued directives temporarily pausing the order, which was signed by Mr. Trump on his first day in office and declared that citizenship would be denied to babies who do not have at least one parent who is a U.S. citizen or legal permanent resident. That would include children born to people who crossed into the country without permission.
The Trump administration’s emergency applications are aimed at pushing back on nationwide injunctions, judicial orders that can block a policy or action from being enforced throughout the entire country, rather than just on the parties involved in the litigation. The tool has been used during Democratic and Republican administrations, and a debate over such injunctions has simmered for years.
In applications to the court, Sarah M. Harris, the acting solicitor general, called the government’s request a “modest” one to limit the pause to “parties actually within the courts’ power.”
The three emergency applications list 22 states and the District of Columbia as parties to the lawsuits.
“Universal injunctions have reached epidemic proportions since the start of the current administration,” Ms. Harris wrote.
A series of Mr. Trump’s initial policy moves have been blocked nationally by judges who have imposed similar broad injunctions while suits challenging their legality are considered.
Legal experts say a decision by the justices to unravel nationwide injunctions could have implications for an array of legal challenges to Mr. Trump’s actions. So far, federal judges have issued nationwide injunctions blocking the firing of federal workers, the freezing of federal funding and the relocation of transgender women in federal prisons to men’s housing.
The legal system could be overwhelmed if federal judges no longer had the power to temporarily pause a policy nationwide while litigation proceeded through the lower courts, said Amanda Frost, a law professor at the University of Virginia who has written extensively about nationwide injunctions.
That is because people affected by the policy in states not already involved in challenging the Trump administration would likely bring individual legal challenges. Such an approach could add thousands of cases to the court system, Ms. Frost added, and not everyone affected by the policy would have the means to bring a challenge.
“You’re asking each and every one of those families to bring a suit,” Ms. Frost said. “For a year or two or three while a case is making its way to the Supreme Court, lots of individuals may suffer.”
Critics of nationwide injunctions say the broad scope of the measures has led to increased politicization of the courts because judges issue emergency rulings before the merits of cases have been heard.
“The universal relief cases are pushing the courts to act fast,” said Samuel L. Bray, a Notre Dame law professor.
Mr. Bray said the legality of nationwide injunctions has come before the Supreme Court repeatedly over the past 10 years, but the justices have not weighed in directly. He said that he viewed the birthright citizenship case as “an unusually good vehicle” for the court to decide on such injunctions.
Some of the justices have expressed skepticism on nationwide injunctions, but it is not clear whether they will take up the case as an emergency matter. Even if they reject the Trump administration’s emergency requests, the court could eventually decide to take up the dispute and weigh in on the more central question of whether birthright citizenship is guaranteed in the Constitution, once the lawsuits have made their way through appeals courts.
Birthright citizenship has long been considered a foundational principle of the United States. The 14th Amendment, ratified after the Civil War, states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” are Americans. In the landmark 1898 case of United States v. Wong Kim Ark, the Supreme Court affirmed the guarantee of automatic citizenship for nearly all children born in the country. Since then, courts have upheld that expansive interpretation.
But a small group of legal scholars, including John Eastman, a lawyer known for drafting a plan to block certification of the 2020 presidential election, has pushed for a reinterpretation of the Wong Kim Ark case. Mr. Trump and his allies argue that the 14th Amendment should never have been interpreted to give citizenship to everyone born in the country. They point to a phrase in the 14th Amendment that limits birthright citizenship to those “subject to the jurisdiction” of the United States.
So far, that argument has not fared well in the courts. A federal judge in Seattle called Mr. Trump’s executive order “blatantly unconstitutional.”
