Trump vs. Casa

A recent executive order signed by President Donald Trump changed birthright citizenship so that it is no longer all inclusive. Executive Order No. 14160. Specifically, people born in the United States are no longer given citizenship when: the person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen at the time of said person’s birth, or when a person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth. In layman’s terms, if a child born to a mother that is an illegal immigrant or on a temporary visa, and a father who is not a citizen or here on a temporary visa, the child will not be granted United States citizenship. For example, if a mother is here legally through a visa and a father is here on a short-term visa, like a seasonal work visa for less than a year, any children they have within the United States would not be considered citizens.

This executive order was challenged by three different plaintiffs in different federal district courts. They challenged its constitutionality as well as its violation of section 1401(a) of the Nationality Act of 1940. The fourteenth amendment of the US constitution states that “all persons born or naturalized in the United States, … are citizens of the United States.” Section 1401(a) of the nationality act states: “The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States.” 8 USC §1401(a). None of the lower courts have ruled whether the order violates either the constitution or the statute yet, but all of them made the same ruling of granting a preliminary universal injunction. An injunction prohibits the government from carrying out the law it has made until the judicial system has decided whether the law is constitutional. An injunction will protect just the person who has challenged the law from it, while a universal injunction will protect every person in the United States from the law’s enforcement.

Trump, President of the United States, Et Al. V. CASA, Inc., Et Al. made it to the Supreme Court because the government, who was the defendant in each of the cases, appealed the universal injunctions that the district courts put in place. The significance of the Supreme Court’s 6-3 ruling is that the Supreme Court has forbidden lower courts from declaring universal injunctions outside of rare exceptions. The majority opinion based its argument on the history and tradition around laws passed in this country and emphasized that in order for universal injunctions to be used, there must be a legal device similar to it during the times of the founding fathers. They found no such legal device and therefore ruled that universal injunctions should not be used. The exception the majority did point out was a case in which the only way to give complete relief to a person challenging the law would be to invoke a universal injunction. They found this did not apply to the birthright citizenship question because as long as the person challenging the law received an injunction, then their child would not be denied citizenship at birth, meaning they would receive complete relief.

Three of the Supreme Court Justices did not agree with the majority opinion, two of which issued dissenting opinions. Justice Sotomayor issued a dissenting opinion and was joined by Justice Kagan and Jackson. Justice Jackson issued her own dissenting opinion as well. Both of which point out the potential issues with this ruling, with one of the biggest being that this decision permits the Executive to violate the Constitution with respect to anyone who has not yet sued to protect their rights. Both Justices in their dissenting opinions warn people affected by unconstitutional laws to form class actions and for the lower courts to act swiftly to protect the rights of the people affected.

One interesting caveat is that many states challenged the law, and the Supreme Court remanded their challenge back to the lower court with directions to see if the court could make a narrower injunction that would provide relief to just states that challenged the law. One important thing to understand is that no ruling has been made regarding whether the executive order regarding limiting birthright citizenship is constitutional. This is due to the government filing the appeal only on the use of universal injunctions by the lower courts, and not whether the Executive Order was constitutional.

If you have any questions or want to know how this ruling could affect you, please contact McNeelyLaw LLP by calling (317) 825-5110.

Disclaimer: This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.