(Bloomberg) — President Donald Trump asked the U.S. Supreme Court to uphold his planned rollback of automatic birthright citizenship, setting up a high-stakes showdown as he seeks to topple what for more than a century has been widely understood to be a constitutional right.
The appeal will test a Trump executive order that lower courts have uniformly concluded runs afoul of the Constitution, federal immigration law and Supreme Court precedent.
The appeal puts the constitutionality of Trump’s planned restrictions directly before the high court for the first time. The conservative-controlled court in June used the birthright citizenship clash to make it harder for federal trial judges to block disputed government policies nationwide. That ruling didn’t address whether the executive order was legal.
The filing wasn’t immediately available on the court’s website because it hadn’t been formally docketed as of late Friday. Bloomberg reviewed a copy of the petition.
Trump is seeking to jettison the understanding that the Constitution’s 14th Amendment confers citizenship on virtually everyone born on U.S. soil. Trump would restrict that to babies with at least one parent who is a U.S. citizen or green-card holder, meaning that even the newborn children of people on temporary visas wouldn’t automatically become Americans.
The 14th Amendment, ratified in 1868 in the aftermath of the Civil War, confers citizenship on anyone who is born in the U.S. and “subject to the jurisdiction thereof.”
The clause “was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens,” U.S. Solicitor General D. John Sauer, the administration’s top courtroom lawyer, told the Supreme Court.
Trump is challenging a federal appeals court ruling that said the administration relied on a “strained and novel interpretation of the Constitution.” The decision by the 9th U.S. Circuit Court of Appeals backed a group of Democratic-run states that are among those challenging the executive order.
The Supreme Court said in 1898 that the citizenship provision covered a man born in California to two Chinese parents, and the court reinforced that decision in a 1982 ruling backing the right of undocumented immigrants to attend public school. Congress has enacted similar guarantees by statute.
The administration said in the filing that it was also asking the court to take up a second challenge being pressed by individual plaintiffs, even though that case hasn’t yet been decided by an appeals court. Taking both cases would mean the Supreme Court could rule on the constitutionality of the executive order even if it concludes the states don’t have legal standing to challenge it.
A spokesman for Washington Attorney General Nick Brown declined to comment on the Trump filing.
The case is Trump v. Washington.
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