What to watch for during the Supreme Court’s historic birthright citizenship arguments

The Supreme Court will hear arguments Thursday about President Donald Trump’s plan to end birthright citizenship and significantly limit the power of federal courts to slow his agenda – a case that has been rushed onto the high court’s docket less than four months after he returned to the White House. Though not framed as a case on the constitutionality of birthright citizenship, the emergency appeal nevertheless asks the 6-3 conservative court to allow the administration to widely enforce an order Trump signed on his first day in office that would deny passports and other documents to babies born to non-US citizens. Along the way, Trump is hoping a majority of justices will also block courts in the future from pausing his policies on a nationwide basis. In that sense, the case – the first involving Trump to be argued at the court during his second term – is a culmination of the administration’s norm-busting approach to the law. Trump, who has railed against individual judges who rule against him, argues that it is the courts that have overstepped their authority by second-guessing an agenda he was elected last year to carry out. Trump’s attorneys have framed their request as “modest,” an effort to limit court orders that temporarily pause his agenda only to those people who sue over them, not everyone else in the nation. Trump is not alone in chafing against those orders. Both Democratic and Republican presidents have complained about what they view as “activist” judges. But a key question for the Supreme Court – and an important dynamic to watch Thursday – is whether a majority of justices are prepared to address that more technical issue with a decision that could, in effect, allow the government to upend how birthright citizenship has been understood for more than a century. The 14th Amendment’s guarantee that “all persons born or naturalized in the United States” are citizens was ratified in 1868, a response to the Supreme Court’s infamous Dred Scott decision that held African Americans were not citizens. Here’s what to watch for on Thursday: Procedure vs. practice Ever since the Supreme Court agreed last month to hear arguments in the birthright citizenship dispute, there has been a simmering debate over what, exactly, the justices will be discussing for more than an hour. On its face, the emergency appeal, which Trump filed in March, deals with whether lower courts overstepped their power by blocking Trump from enforcing his executive order on citizenship on a nationwide basis. Such orders, the Department of Justice told the justices in a series of briefs, have “reached epidemic proportions” and “irreparably injure our system of separated powers.” But immigrants’ rights groups, the plaintiff states and many academics predict it will be difficult to entirely separate the procedural issues from the practical implications. That’s because the practical effect of a win for Trump is potentially vast. If Trump gets everything he’s asking for from the Supreme Court, the administration would effectively be able to enforce its birthright citizenship order against everyone in the country aside from 18 individuals – at least in the short term. That would require potentially hundreds of thousands of people to sue the administration individually, or it could force immigrants’ rights group to try to file a class action challenge. Those possibilities, some experts believe, may play in the back of the minds of some of the justices. “I will be disappointed if the court doesn’t tip its hand about the merits, to some extent,” said Vikram Amar, a UC Davis School of Law professor. “One way to do that,” he said, “is to send some pretty strong signal to the administration that this order is not likely to fly, even if they’re not going to formally rule on it right now.” A key thing to watch will be how much the justices raise questions about the real-world impact of Trump’s request – which might be a tell that they, too, are thinking about the case in broader terms. Irreparable harm to Trump? One of the determinations the court must make is whether the Trump administration will suffer irreparable harm if the three nationwide, or “universal,” court rulings blocking the birthright order are left in place. As it has in case after case, the Trump administration has argued that the mere imposition of a temporary court order blocking its policy creates an enormous burden because it violates separation of powers principles. “This situation is intolerable,” US Solicitor General D. John Sauer, the administration’s top appellate attorney told the Supreme Court in written arguments, citing the relatively high number of injunctions lodged against Trump compared with his predecessors. “By allowing single, unelected federal judges to co-opt entire executive-branch policies at the drop of the hat,” Sauer continued, “they create needless interbranch friction and perpetrate a truly lupine encroachment” on the president’s authority. But critics counter that the administration can’t possibly be harmed by being required – temporarily – to continue an approach that’s been in place for more than a century. Thirty years after the 14th Amendment was ratified, the Supreme Court ruled in US v. Wong Kim Ark that people born in the United States – in that case, the son of Chinese immigrants – are entitled to US citizenship, with a few narrow exceptions. “Nationwide injunctions are one of the tools that courts have to stop systemic violations of constitutional rights and protect people from illegal government activity,” said Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project, which filed one of the suits challenging the order. “This executive order is a good example of that,” he said, “because it’s so egregiously unconstitutional.” Can states sue Trump? In addition to arguing that courts overstepped their authority by blocking the birthright citizenship order, the Trump administration also claims that states shouldn’t have been allowed to sue over that order in the first place. If the Supreme Court embraces that argument, it could significantly limit the ability of blue states to file other lawsuits challenging other Trump policies – as well as curbing red states that want to sue Democratic presidents in the future. And if a majority of justices signal concerns Thursday on the ability of states to sue, that will be a good sign for Trump. The Supreme Court has in recent years limited the circumstances under which states may sue a president. In a 2023 opinion that drew support from both conservative and liberal justices, the court found that Texas did not have standing to raise an equal protection claim against a 1978 federal law that requires adoption and foster care agencies to give preference to Native American families for Native children. Last year, a 6-3 majority ruled that Louisiana and Missouri didn’t have standing to sue over White House efforts to pressure social media platforms to take down content the government viewed as misinformation. Both of those opinions were written by Justice Amy Coney Barrett, a member of the court’s conservative wing. And the Department of Justice leans heavily on both to make the argument that the 22 states suing over birthright citizenship should be knocked out of the litigation. But the states say they have a stronger argument in the birthright case because they’re not suing the Trump administration on behalf of their citizens’ rights; rather, they are suing over their own bottom lines. States receive significant federal reimbursement for health and education programs based the number of children living within their borders – but only if those children have legal immigration status. In other words, the states say, they stand to lose a lot of money if Trump’s order takes effect. A little or a lot? Both liberal and conservative justices have, for years, voiced concern about nationwide injunctions. A key dynamic to watch on Thursday will be how far a majority of the court is willing to go to address those concerns. The Trump administration, not surprisingly, wants the court to go all the way and end universal injunctions entirely. The Department of Justice has argued in briefings that the Constitution bars lower courts from issuing orders that affect Americans who are not parties to the litigation at issue. And, the department says, for much of the nation’s history, the federal judiciary agreed with that assessment. “For the first 170 years of American jurisprudence, nationwide injunctions were virtually unknown,” the Trump administration told the court. “I would prefer a system with fewer than there are now.However, I think any limitation is going to be a loophole that you can drive a truck through,” a senior administration official told reporters this week. But the Supreme Court could also take a more incremental approach, limiting when universal injunctions are appropriate but not barring their use entirely. The groups fighting Trump’s birthright citizenship order warn that completely eliminating universal injunctions during an administration that is pushing the boundaries of the law would be a dangerous mistake. “One question will be whether their questions go to the constitutional power of federal courts to issue such injunctions,” said Amanda Frost, a professor at the University of Virginia School of Law. But, Frost predicted, even if a majority of the court is inclined to side with Trump on the injunction issue, it may be tall order to get there with the issue of birthright citizenship in the background. “If I was an executive branch lawyer wanting to limit the scope of injunctions,” she said, “this is the last case I’d want before the court.” CNN’s Paula Reid and Casey Gannon contributed to this report.