WASHINGTON — President Donald Trump’s plan to roll back the constitutionally protected right to birthright citizenship is just one of several contentious executive actions that are likely to face pushback from judges and could be struck down by the Supreme Court.
Other policies that could be legally vulnerable include a plan to invoke an 18th century law called the Alien Enemies Act to round up and deport certain immigrants, legal experts said. Efforts to re-allocate congressional funding to build a border wall and refusing to spend money appropriated by Congress for environmental policies would also most likely be challenged.
Civil rights groups and Democratic attorneys general are likely to sue over a number of Trump policies. In fact, lawsuits were filed challenging Trump’s proposed Department of Government Efficiency within minutes of his taking the oath of office.
But not all lawsuits are created equal, and many will fail.
That is especially the case if Trump is merely rescinding positions taken by President Joe Biden and federal agencies follow the letter of the law in doing so.
It is where Trump administration officials intend to invoke new or previously untested theories that they are most likely to lose, even with a Supreme Court that has a 6-3 conservative majority with three Trump appointees.
“I expect the Trump administration to face substantial pushback from the courts when it takes illegal actions that are properly challenged in court,” said Jonathan Adler, a professor at Case Western Reserve University School of Law.
Birthright citizenship
Legal scholars on the left and the right have long understood birthright citizenship to be required under the Constitution’s 14th Amendment.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” the amendment says.
Enacted after the Civil War, the amendment was conceived to ensure that former slaves and their children were recognized as citizens.
The consensus on its meaning over the years has not stopped some anti-immigration advocates from pressing an alternative interpretation.
Trump has adopted those arguments in his executive order, focusing on language in the amendment saying birthright citizenship accrues to those who are “subject to the jurisdiction” of the United States.
The language means children born of parents who did not enter the country legally can be denied citizenship, the argument goes.
However, most legal experts say that language refers only to people not bound by U.S. law, usually foreign diplomats.
The Supreme Court has never directly ruled on the issue, but in an 1898 case, called United States v. Wong Kim Ark, the court ruled that a man born in San Francisco to parents who were both from China was a U.S. citizen.
“We will sue imminently, and I have every confidence we will win,” Connecticut Attorney General William Tong said Monday. Last month, he told NBC News he would be the “first to sue” if Trump went ahead with his plan.
The American Civil Liberties Union filed its own lawsuit Monday night.
Thomas Wolf, a lawyer at the Brennan Center for Justice at New York University School of Law, said the Trump administration is asking the Supreme Court to “defy the plain text of the 14th Amendment” and overturn precedent that has been on the books for more than a century.
Birthright citizenship is not the only immigration-related issue that will end up in court, as Trump announced a whole series of executive orders on the issue. One of them is the “Remain in Mexico” policy that was implemented in his first term, which prevents people seeking asylum at the southern border from entering the country while their applications are processed.
The Supreme Court never ruled on the Remain in Mexico program during Trump’s first term. It did issue a decision in 2022 allowing Biden to unwind it.
Alien Enemies Act
Trump is on similarly questionable legal ground with his executive order that paves the way for him to use the Alien Enemies Act, which was enacted as part of the Alien and Sedition Acts of 1798.
The order directs officials to “make operational preparations” in case Trump decides to invoke the law, which enables the president to detain or deport citizens of other countries when the United States is at war. It played a role in the internment of Japanese Americans during World War II.
But as legal experts have pointed out, it can be invoked only during a time of war, which could limit its availability to Trump, who said Monday he wanted to use it to detain members of drug cartels.
Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, wrote Monday that the Alien Enemies Act “cannot be used in our current situation” because the nation is not at war. Although some Republicans have argued that there is an “invasion” at the southern border, that would not be enough to trigger the law, he said.
The Alien Enemies Act and birthright citizenship plans “are the two [Trump policies] most likely to be invalidated,” Somin added in an email.
Using federal funding
Issues with federal funding are also likely to be litigated, with the outcomes uncertain.
During his first term, Trump sought to divert military funding appropriated by Congress to help build a wall along the southern border. That was because Congress had not appropriated money for the wall, leading to a legal fight over the power of the president to decide how money is spent.
Under the Constitution’s Appropriations Clause, Congress, as is often said, has “the power of the purse.”
Trump is set to revive and expand on this fight in two ways.
First, he appears ready to resume his fight to finish constructing the border wall, which could lead to some of the same legal battles as before.
The Supreme Court never decided in Trump’s first term whether he could re-assign money for construction of the wall. It had taken up a case on the issue but dismissed it as moot once Biden took office in 2021.
Earlier in the litigation, the court did allow some of the money to be spent.
Another Trump proposal is to refuse to spend money Congress allocated for specific purposes, potentially as it relates to environmental programs that were approved as part of the Inflation Reduction Act and the Infrastructure Investment and Jobs Act. That would trigger another legal fight — this time over the Impoundment Control Act, a 1974 law that requires the executive branch to spend appropriated funds.
