These pregnant moms eye Supreme Court’s birthright citizenship arguments with fear

Mónica got pregnant last year around the same time President Donald Trump was elected to a second term. And that is when her race against the calendar began. The Venezuelan national, who is in the United States legally but with temporary status, is terrified that Trump’s long-promised effort to curb birthright citizenship will be allowed to take effect before her baby boy is due in August – an outcome that could effectively leave him stateless. “There’s been a lot of fear,” the South Carolinian told CNN. “Every day it’s a new restriction, and we don’t know what will happen.” Mónica asked to be identified in this story by her first name because she is concerned about possible repercussions for speaking publicly about her situation. When the Supreme Court gathers Thursday to hear oral argument in a high-profile emergency appeal involving Trump’s birthright citizenship order, the justices will technically be considering a procedural question about whether lower courts overstepped their authority by blocking the president’s efforts nationwide. But the court’s answer to that question will have enormous on-the-ground consequences, even for people – like Mónica – who are in the United States legally. Allowing the administration to temporarily enforce the order Trump signed on his first day of his second term could set up a dynamic in which a baby born in New Jersey would be able to access a passport or obtain a Social Security number, but a child born into the same circumstances across the Delaware River in Pennsylvania could not. Or the court could rule in a way that allows Trump to enforce the order against all but a handful of individuals. For nearly 150 years, courts have understood the 14th Amendment’s text to guarantee citizenship to anyone “born or naturalized in the United States,” regardless of the immigration status of their parents. In a landmark 1898 decision, US v. Wong Kim Ark, the Supreme Court affirmed the idea that people born in the United States – in that case, the son of Chinese immigrants – were entitled to US citizenship, with a few narrow exceptions. But a small group of legal conservatives have for years focused on a second phrase in the amendment’s text, requiring people to be “subject to the jurisdiction” of the United States before they become entitled to citizenship. People who owe their allegiance to another country, the argument goes, are not covered. Trump often chafed against birthright citizenship during his first term and campaigned heavily on the idea of ending it if he returned to power. Those arguments will not be before the Supreme Court this week, but the absence of a question on the merits raises a thorny practical question for the justices: How much should they take the broader constitutional issues into account if they decide to allow Trump to enforce a policy – even temporarily – that flies in the face of a long-standing recognition that a person born in the United States, regardless of their parents’ immigration status, is entitled to citizenship? “As a practical matter, I think the merits will to some degree have to be in the back of their minds,” said Ilya Somin, a law professor at George Mason University and close observer of the Supreme Court. “It’s hard for anyone – probably even including a Supreme Court justice – to totally put those arguments aside in a situation like this.” ‘Blatantly unconstitutional’ Mónica, who is in her 30s, and her husband fled Venezuela because her family worked for the opposition to the country’s authoritarian government of Nicolás Maduro. She came to the United States in 2019 and benefits from a form of humanitarian relief known as temporary protected status. The Trump administration has moved to end TPS for Venezuelan nationals, and the Supreme Court is considering a separate emergency appeal on the process it used to do so. Trump’s executive order, signed on January 20, blocks federal agencies from issuing documents recognizing citizenship for people born to noncitizen parents but also people in the country on a temporary basis. Multiple federal courts blocked its implementation nationwide, including one judge in Seattle nominated by President Ronald Reagan who described Trump’s effort as “blatantly unconstitutional.” A challenge for Mónica is that there would be no realistic way for her to secure Venezuelan citizenship for her son if he was unable to obtain a US passport. Maduro cut diplomatic ties with the United States in 2019. Even if she could reach an embassy in another country, Mónica said she wouldn’t apply for a citizenship from a government her family is attempting to escape. “We left fleeing persecution,” Mónica said through an interpreter. “It would be a risk to make him a Venezuelan citizen because we’re actively seeking asylum from the Venezuelan government.” In an unusual quirk of the case, Mónica will likely ultimately be able to obtain US citizenship for her son because she belongs to the Asylum Seeker Advocacy Project, a membership organization for people seeking asylum. The Trump administration has said in court papers it wants to enforce the order on a temporary basis against everyone except for certain members of ASAP, which is also representing Mónica, and another group. By the time the underlying case over birthright citizenship is resolved, Mónica’s child will likely be walking. Meny, a native of Honduras who came to the United States with her husband and son in 2021, is in the same position. Her second son is due in July. “I was already pregnant when I started to hear rumors that the president would likely be taking away birthright citizenship,” said Meny, a California resident who also asked to be identified by her first name only. “I remember thinking it was so scary that my son had not yet been born and that his rights would be violated.” Meny, who is seeking asylum in the United States, said she is concerned about the conversation she might need to have with her son someday about his status. “As a mom – as a parent – it would be very difficult for me to explain to him why he doesn’t have those rights,” she said. Separation of powers The difference between what’s technically at issue in the case and the practical implications of the ruling have allowed groups on both sides to frame the emergency appeal in their own terms. The administration has focused almost exclusively on the separation of powers and what it sees as the courts’ encroachment into the executive branch. Immigration groups, meanwhile, have warned the Supreme Court of “chaos” and say a ruling for Trump could “fundamentally fracture the country.” Trump has asked the Supreme Court not to lift the lower court orders blocking enforcement entirely, but rather to limit those orders to the states and individuals who originally sued. That could mean blocking its enforcement in 22 blue states or, possibly, against a handful of individuals. As a backup argument, the administration has urged the Supreme Court to at least allow it to plan for implementing the order at some point in the future. Anyone outside of those states or group of individuals then could be subject to enforcement. The administration has described that as a “modest” request. “Years of experience have shown that the executive branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere,” the Department of Justice told the Supreme Court in March. Such a decision, if it offered further guidance or limitations on when district court judges could universally block a policy or law could have ramifications far beyond birthright citizenship. GianCarlo Canaparo, a senior legal fellow at the Heritage Foundation, noted that presidents of both parties – and both liberal and conservative justices – have raised concerns in recent years about the number of orders from federal judges that enjoin enforcement of a policy against not only the people who sued but everyone else in the nation. Those orders, known as nationwide or universal injunctions, have become common during the second Trump administration. Canaparo said he was unpersuaded by arguments that a uniform approach to citizenship in all states might supply a good reason for a nationwide injunction in this case. “The argument that we need uniform laws is a policy judgment,” he said, “which is just historically not a permissible basis for courts to be granting remedies of different sizes and scope.” But while emergency orders don’t decide the merits of a case, they often have significant practical implications in the short term. In 2021, the Supreme Court declined to block a Texas law that banned most abortions after six weeks of pregnancy – even though the law conflicted with the court’s landmark 1973 decision in Roe v. Wade. The court’s decision effectively allowed Texas to enforce that six-week ban. Months later, the court’s conservative majority overturned Roe. The Supreme Court is expected to hear more than an hour of argument on Thursday and hand down a decision sometime before the end of June. Between doctor visits and trips to supply their nurseries, Mónica and Meny will be following the outcome anxiously. “Because we’re immigrants doesn’t mean that we’re enemies of this country,” Meny said. “We come because we have a necessity.”