The Supreme Court is considering Trump’s controversial attempt to curtail birthright citizenship

WASHINGTON — Debating one of President Donald Trump’s most provocative laws, the Supreme Court on Wednesday is considering the legality of his proposal to reduce the constitutional guarantee that people born in the United States are given the right to be born as a birthright.

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Announced on the first day of Trump’s second term as part of his immigration policy, the executive order in question would limit birthright citizenship to people with at least one parent who is a US citizen or permanent US citizen.

As a result, children born to temporary visitors entering the country legally or to people entering the country illegally would not be citizens at birth.

Trump said on Tuesday that he plans to attend the debate in person, which will be the first for a sitting president.

His executive order upholds the common understanding of the 14th Amendment clause of the Constitution called the citizenship clause.

“All persons born or begotten in the United States, and subject to their jurisdiction, are citizens of the United States,” the clause says.

This section of the law, which was amended after the Civil War to grant equal rights to formerly enslaved Blacks, has long been assumed by officials at all levels of government to apply to almost anyone born in the United States, regardless of the legal status of their parents.

A few exceptions that were understood at the time included children born to foreign diplomats and invaders.

Trump’s order was quickly blocked by courts across the country and has never gone into effect. Most legal experts predict that he will face an uphill battle to win this case.

This program, if implemented, could affect thousands of babies born every year in the US

Another woman, who asked not to be named to protect her family, was pregnant last week when she heard about the executive order. Originally from Argentina, she now lives in Florida on a student visa and quickly panics about what her child’s legal status will be.

“Actually, my child will be one of the first affected. I was afraid,” he said in an interview.

Determined to make sure that her 8-month-old son has the right to become a citizen, she started making arrangements to apply for a passport before he was born.

Although her son already has his passport, she said she sympathizes with other families who are expecting children who are always unsure of what will happen.

“I know that there are probably many families and mothers who are separated, pregnant mothers, in my situation who may be under pressure,” she said.

The administration’s legal argument centers on the “under their jurisdiction” language in the citizenship clause, saying it has a much broader meaning than previously thought.

Solicitor General D. John Sauer argued in court papers that the citizenship clause was intended to apply primarily to the children of freed slaves. People must be subject to direct US “politics” and not be loyal to another country, he wrote.

Among other things, he cited an 1884 Supreme Court decision in a case called Elk v. Wilkins explained why Native Americans did not have birthright citizenship at the time. That case “destroyed the premise that anyone born on American territory, regardless of circumstances, is an automatic citizen as long as the government can’t control them,” Sauer wrote.

Native American legal experts questioned the government’s reliance on that case, telling NBC News that it was limited to the tribes’ unique status under US law.

The American Civil Liberties Union, which is leading the legal challenge to Trump’s executive order, responded in a brief that the text of the 14th Amendment is largely self-explanatory, as is the history and tradition of how it has been interpreted.

The lawyers of this group also pointed to the decision of the Supreme Court of 1898 called United States v. Wong Kim Ark, who concluded that a man born in San Francisco to Chinese parents was an American citizen.

In addition to examining the language of the 14th Amendment, justices can also examine whether the executive order conflicts with federal immigration law that uses similar language, including “under its authority.” A court can decide that an executive order is illegal under that law without deciding the 14th amendment question and putting the onus on Congress to act.

The Supreme Court, by a 6-3 majority, ruled in Trump’s favor last year. But the court dealt him a crushing blow in February when it ruled that his use of tax rates was illegal.

Trump responded to that decision by harshly criticizing the justices who voted against him in the 6-3 decision, calling them “disloyal to the Constitution.”