Ask Jordan: If SCOTUS sides with Trump, could people lose their birthright citizenship?

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“If the Supreme Court rules against Trump’s anti-birthright citizenship executive order, it will not retroactively revoke citizenship. Even if the court sides with Trump, future implications will be litigated, but the administration is likely to lose this case.

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“Deadline: White House” legal analyst Jordan Rubin answers your questions about the Supreme Court, Trump administration lawsuits and other issues.

Jordan Rubin

“If birthright citizenship is ruled by the Supreme Court as invalid, would those born in the U.S. to immigrants no longer be U.S. citizens?” — Kathy

Hi Kathy,

President Donald Trump’s anti-birthright citizenship executive order says it only applies going forward. It doesn’t claim to retroactively revoke citizenship. Importantly, even that forward-looking order hasn’t taken effect because it’s been blocked in lower courts for its obvious illegality. If the Supreme Court deems Trump’s order invalid, then it will never take effect. That seems to be the most likely outcome following the April 1 hearing in Trump v. Barbara, so any concerns that people will retroactively lose citizenship through this case probably won’t come to pass.

But speaking in likelihoods and probabilities when it comes to people’s citizenship can only be so comforting. It’s important to take all of the possibilities seriously, while being mindful that the administration is poised to lose this case.  

Justice Sonia Sotomayor raised the retroactivity issue at the hearing. She said toSolicitor General John Sauer that if the court accepts the administration’s position in this case, then “this president or the next president or a Congress or someone else could decide that it shouldn’t be prospective. There would be nothing limiting that, according to your theory.” Sauer said the government wasn’t “asking for any retroactive relief.”

Democratic members of Congress also raised alarms about the chaotic consequences of approving Trump’s order. If the court does so, then “millions of Americans will simply no longer meet the constitutional and statutory criteria for citizenship,” they argued in an amicus brief ahead of the hearing. “Statutory law will therefore bar them from voting, securing passports, and more,” they wrote.

Keep in mind that even if the court sides with Trump, any future implications not directly addressed in the ruling will be litigated step by step. Again, because it looks like the administration will lose this case, it doesn’t seem like we will need to evaluate those implications. But we won’t know for sure until the ruling comes down later in the spring or early summer.“