The U.S. Supreme Court on Thursday heard arguments in a case involving President Donald Trump’s executive order that could revoke birthright citizenship from children of some undocumented immigrant parents, an issue being watched closely by educators and policymakers.
The unusual May argument—two weeks after the court’s regular arguments ended for the 2024-25 term—was largely focused on the legal question the administration brought to the court in an emergency application: whether federal district judges have the power to issue nationwide injunctions blocking federal policies they believe are unlawful.
Three such judges have blocked Trump’s Jan. 20 order, ruling that it is likely unconstitutional because the Supreme Court has already ruled that being born on U.S. soil conveys citizenship based on language in the 14th Amendment.
But during the two-and-a-half-hour argument in Trump v. CASA, there was a good bit of discussion about the underlying issue of birthright citizenship, what advocates kept referring to as the “peek at the merits” that judges must sometimes undertake in deciding on injunctions to block a policy at an early stage of litigation.
“As far as I see it, this order violates four Supreme Court precedents,” said Justice Sonia Sotomayor, mentioning the 1898 case of United States v. Wong Kim Ark, which held that a child born within the United States was a citizen even though his parents were “subjects of the Emperor of China” and were ineligible for U.S. citizenship themselves. (She summarized the holdings of the other three opinions she had in mind but didn’t name them.)
U.S. Solicitor General D. John Sauer reiterated some of the merits arguments the administration is making in support of the executive order.
“This order reflects the original meaning of the 14th Amendment, which guaranteed citizenship to the children of former slaves, not to illegal aliens or temporary visitors,” he said. “The merits arguments we are presenting to the lower courts are compelling.”
Justice Elena Kagan, without explicitly stating disagreement but sounding skeptical, asked Sauer, “Let’s just assume you’re dead wrong. How do we get to that result? Does every single person that is affected by this EO have to bring their own suit?”
Sauer said class actions or individual lawsuits would be the appropriate ways to challenge the executive order.
Not even the court’s conservative members spoke up in defense of the Trump executive order. But several seemed skeptical of universal injunctions in general and the ones blocking this particular order.
“Let’s put out of our minds the merits of this and just look at the abstract question of universal injunctions,” Justice Samuel A. Alito Jr. said. “The practical problem is that there are 680 [federal] district court judges,” all of whom are “vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want.’”
Several justices, including Clarence Thomas, Alito, and Neil M. Gorsuch, have criticized universal injunctions in opinions in recent years. Thomas said in a 2018 opinion that they prevent “legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”
Local governments warn of potential loss in education funding
The implications of the birthright citizenship order for education are a bit murky. Most legal experts believe that the Supreme Court’s 1982 decision in Plyler v. Doe, which held that a state could not withhold funding from school districts that enrolled undocumented immigrant children, guarantees those children the right to attend public schools regardless of their own citizenship status or their parents’ immigration status.
One friend-of-the-court brief filed by local governments and officials from at least 20 states in opposition to Trump’s order argue that if it is allowed to take effect, there would be several direct harms to states and school districts. For example, some federal education aid under the Individuals with Disabilities Education Act is based on students’ eligibility for Medicaid, which is only available to those with U.S. citizenship, says the brief.
“Under the [executive] order, school districts would lose this funding for impacted students,” says the local governments’ brief, which was signed by several members of various school boards across the country.
“Additionally, policies hostile to immigrants deter parents from sending their children to school due to fear of deportation or other concern for their families,” the brief adds. “When that happens, schools lose attendance-based federal funding.”
Besides the underlying legal issue of birthright citizenship, the question of nationwide injunctions may be relevant for education policy as Trump has issued numerous executive orders and other actions related to issues such as diversity, equity, and inclusion policies in schools and policies affecting transgender students. Many of those have been challenged in court, though only one or two of the education policies are currently being blocked by a universal injunction.
Opponents of the president’s executive order, including 23 Democratic-leaning states and immigrant-rights groups such as CASA, along with individual plaintiffs, argued that nationwide injunctions are sometimes appropriate.
Kelsi B. Corkran, the lawyer representing CASA and the individual plaintiffs, noted two landmark Supreme Court education precedents that marked the court’s approval of two early forms of nationwide injunctions.
One was Pierce v. Society of Sisters, which struck down an Oregon law requiring public school attendance and providing the early foundation to parents’ rights to send their children to private schools. The other was West Virginia State Board of Education v. Barnette, which struck down compulsory flag salutes and participation in the Pledge of Allegiance.
Jeremy M. Feigenbaum, the solicitor general of New Jersey, who argued for the 23 states opposing the Trump order, said that 127 years of Supreme Court precedent, as well as decades of executive branch action and two congressional immigration laws that have codified birthright citizenship, all support a universal injunction blocking the order.
“Given that strength of the merits and the settled precedent, combined with our nature of harm, I don’t think this is a close case for why we need national relief to remedy our injuries,” he said.
A decision is expected by late June or early July.
