One of President Donald Trump's most contentious policies - his attempt to restrict automatic birthright citizenship - arrives at the U.S. Supreme Court this week with an unusual twist: The justices may focus on something else entirely.
Federal judges in Washington state, Massachusetts and Maryland issued orders blocking Trump's January executive order nationwide, finding the directive likely violated language in the U.S. Constitution concerning citizenship for babies born in the United States.
But through an emergency filing, Trump's administration has focused the Supreme Court's attention not on the legality of the action by the Republican president but rather on the permissibility of the actions by the three judges - whether federal judges should have the power to issue broad orders that block challenged polices on a nationwide, or "universal," basis.
The administration asked the court to narrow the injunctions to let the government enforce Trump's directive - part of his hardline approach to immigration - to the greatest extent possible while the legal fight over the policy plays out.
Trump takes US birthright citizenship to Supreme Court
The court may do so "without considering the underlying merits" of Trump's action, the administration asserted.
That approach would set up the possibility of the court, which has as a 6-3 conservative majority, allowing broad enforcement of the policy without assessing whether or not it is legal.
The matter came to the court on a compressed timeline and with minimal written briefing.
Cornell Law Visiting Professor Jacob Hamburger said the decision to focus on the procedural question of universal injunctions rather than the merits of the birthright citizenship case, the Trump administration may be strategic.
"I think the Trump administration might be thinking that, even if we don't ultimately win on the merits here, maybe the Supreme Court does not adopt our interpretation of the 14th Amendment and our interpretation of the immigration statutes that have been passed since, maybe we can get the Supreme Court to narrow the scope of this injunction, allow us to start implementing, creating regulations to implement this executive order in the meantime, and that might accomplish some of the goals that the administration wants," Hamburger said.
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Trump's order, signed on his first day back in office, directed federal agencies to refuse to recognize the citizenship of U.S.-born children who do not have at least one parent who is an American citizen or lawful permanent resident.
Trump's order was challenged by Democratic attorneys general from 22 states as well as individual pregnant immigrants and advocacy groups. The plaintiffs have said the directive violates a right enshrined in the U.S. Constitution's 14th Amendment, which was ratified in 1868 and long has been understood to confer citizenship to virtually anyone born in the United States.
The administration has not contested whether the injunctions should have been issued, asking the justices only to scale back their nationwide effect to protect just the plaintiffs in the cases.
The 14th Amendment states that all "persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
The administration contends that the 14th Amendment does not extend to immigrants who are in the country illegally or even to immigrants whose presence is lawful but temporary, such as university students or those on work visas.
At the Supreme Court, the administration has targeted only the universal scope of the injunctions, content to leave them in place to protect only the people who sued as well as the residents of the 22 states, assuming the Supreme Court finds that these states have the necessary legal standing to bring their cases. That outcome would let Trump's order go into effect in the 28 states that did not sue, aside from any plaintiffs from those states.
The Justice Department said the issuance of broad judicial injunctions has bedeviled administrations of both parties, Republican and Democratic, and must be urgently rectified by the Supreme Court. Trump himself on March 20 called the situation "toxic" and urged the Supreme Court to act.
Since Trump returned to office, many of his numerous executive orders and other initiatives have been impeded by judges, including through universal injunctions.
If the justices agree to scale back the judicial blocks, it could lead to a nation geographically fractured between places where babies are born with automatic citizenship and places where they are not, the plaintiffs said.
“If you really think about it, I think that this is probably less likely to be a case where the Supreme Court is going to take this step, just because if that's true, if there is a solid majority against the Trump administration's fundamental position here, what you what the justices would be voting for if they partially stay these injunctions would be voting to have one rule of birthright citizenship for some people, maybe one rule the birthright citizenship that operates in one state, but not another one that operates for some people but not others," said Hamburger.
(Production: Arlene Eiras)