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The U.S. Supreme Court seemed at least partially divided on Thursday as the justices heard more than two hours of arguments debating 

 President Trump's executive order on birthright citizenship. 

NPR special coverage: Supreme Court hears arguments in birthright citizenship case

Trump has long maintained that there is no such thing as birthright citizenship, but the Supreme Court ruled otherwise 127 years ago. The court said then, and since then, that the text of the Fourteenth Amendment, enacted after the Civil War, says that all babies born in the Unites States are automatically U.S. citizens. Undaunted, Trump on his first day in office this year issued an 

 declaring that the children of parents who enter the U.S. illegally or on a temporary visa are not entitled to automatic citizenship.

Immigrant rights groups and 22 states sued, and three different federal district court judges invalidated Trump's order, issuing what are called universal injunctions barring the administration from enforcing the Trump policy anywhere in the country.

When the courts of appeal refused to intervene while the litigation proceeded, the Trump administration asked the Supreme Court to block universal injunctions altogether. The administration asserted that single district judges should not have such broad authority. So on Thursday, the court heard emergency arguments in the case.

The court's conservatives didn't entirely tip their hands. While some of them have called for the abolition of these nationwide injunctions in the past, on Thursday they didn't seem so certain, especially after Solicitor General D. John Sauer opened his argument insisting Trump is right in saying the Fourteenth Amendment has been wrongly interpreted for 127 years.

"This order reflects the original meaning of the Fourteenth Amendment, which guaranteed citizenship to the children of former slaves, not to illegal aliens or temporary visitors," he argued.

He then went on to say that the judges who temporarily barred the enforcement of Trump's policy exceeded their authority under the Constitution.

Justice Sonia Sotomayor posed this question: If a new president decided to seize all guns in the country, would we in the courts "have to sit back and wait until every plaintiff whose gun is taken comes into court?"

Justice Elena Kagan followed up, posing this question to Sauer: "Let's just assume you're dead wrong. How do we get … a single rule of citizenship that we've historically applied, rather than the rule [Trump's executive order] would have us do?"

When Solicitor General Sauer later hedged on whether the administration is committed to abiding by any court ruling, Justice Amy Coney Barrett leaned forward: "Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a … circuit court precedent, say, in New York, because you might disagree with the opinion?"

In reply, Sauer said, "There are circumstances when it is not a categorical practice."

Justice Brett Kavanaugh asked a series of practical questions, such as: "What do hospitals do with a newborn? What do states do with a newborn?"

"Federal officials will have to figure that out," Sauer answered, prompting Kavanaugh to ask, "How?"

Sauer said the administration could require documentation showing that the parents are legally in the country.

For all newborns? Kavanaugh asked. Replied Sauer, "We just don't know."

Justice Ketanji Brown Jackson interjected: "Your argument seems to turn our justice system into a catch-me-if-you-can kind of regime … where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights."

Sauer suggested that litigants could bring class actions, instead of individual lawsuits, but lawyer Jeremy Feigenbaum, representing the states, responded, "it's going to produce unprecedented chaos on the ground."

Justice Samuel Alito noted that there are 680 district court judges in the country, and if all of them could impose nationwide injunctions that might produce chaos, too. But upon consideration, Alito didn't seem satisfied with Sauer's notion that class actions would be better.

"So the answer is that the practical problem would not be solved," Alito said, adding that if that's the case, "what is the point of this argument about universal injunctions?"

Chief Justice John Roberts noted there may be benefits to allowing appeals courts enough time to rule on the merits of a case before the issue makes its way up to the Supreme Court, which, as he noted, can happen rather quickly in emergency cases.

A decision in the case is expected by early summer.

Nina Totenberg

Author

The arguments focused on whether federal district court judges can rule against the administration on a nationwide basis.

Supreme Court justices appear divided in birthright citizenship arguments

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