STEVE INSKEEP, HOST:
Judging by their questions in oral arguments, the Supreme Court seemed divided yesterday.
A MARTÍNEZ, HOST:
Yeah. They went back and forth with lawyers for more than two hours about birthright citizenship. Lower courts have found it was unconstitutional for President Trump to try and erase that constitutional right by executive order.
INSKEEP: NPR legal affairs correspondent Nina Totenberg says the government advanced a different argument. Hi there, Nina.
NINA TOTENBERG, BYLINE: Hi there, Steve.
INSKEEP: So, Nina, what was the president trying to do - or his lawyers, anyway?
TOTENBERG: The Supreme Court ruled unanimously 127 years ago that the 14th Amendment to the Constitution, which was enacted after the Civil War, says unambiguously that all babies born in the United States are automatically U.S. citizens. President Trump, however, has always had his own interpretation. So on his first day in office this year, he issued an executive order declaring that the children of parents who entered the U.S. illegally or on a temporary visa are not entitled to automatic U.S. citizenship. Three different district court judges ruled that the executive order violated the Constitution. In addition, they issued temporary nationwide orders called universal injunctions that temporarily barred the enforcement of the Trump order anywhere in the country while the case is litigated in the appeals courts. The Trump administration, claiming that the judges had exceeded their authority, then went to the Supreme Court, asking it to block those nationwide injunctions.
INSKEEP: Yeah. I guess the argument is that the ruling in a lower court should only apply to the case that's in front of them. And in fairness, some justices do not seem to have liked nationwide injunctions in the past.
TOTENBERG: Correct. But yesterday, they didn't seem so certain - especially after Trump's solicitor general, John Sauer, reiterated the president's view that the 14th Amendment only applies to former slaves and their children. Justice Sotomayor asked whether, if a new president ordered the military to confiscate all guns in the country, would the courts have to sit back and wait until every person whose gun is taken files a lawsuit? Justice Kagan then followed up, asking Sauer about Trump's birthright executive order, known as an EO.
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ELENA KAGAN: Let's just assume you're dead wrong. How do we get to a single rule of citizenship that is not the rule that we have historically applied, rather than the rule that the EO would have us do?
TOTENBERG: Later, when Solicitor General Sauer hedged on whether the administration is committed to abiding by any court ruling, Justice Barrett leaned forward in her chair, asking him whether the administration would abide by appeals court orders. Sauer responded this way.
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JOHN SAUER: There are circumstances when it is not a categorical practice.
INSKEEP: Interesting that he is questioned there by a Trump appointee. He says, maybe we would follow appeals court orders, maybe not. How did the justices respond to that?
TOTENBERG: I don't think that answer went down very well. Here's Justice Kavanaugh, for instance, asking a series of practical questions.
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BRETT KAVANAUGH: What do hospitals do with a newborn? What do states do with a newborn?
SAUER: The federal officials will have to figure that out.
TOTENBERG: Replied Sauer - we just don't know. Justice Jackson then interjected.
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KETANJI BROWN JACKSON: 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.
TOTENBERG: When Sauer suggested that litigants could bring class actions instead of individual lawsuits, lawyer Jeremy Feigenbaum, representing the states, said that would produce, quote, "unprecedented chaos on the ground."
INSKEEP: Nina, sometimes you can listen to the justices' questions and predict how they're going to rule. Are you able to predict this time?
TOTENBERG: No (laughter).
INSKEEP: We'll just have to keep listening, then. NPR's Nina Totenberg, thanks so much.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.
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