President Donald Trump just signaled he is preparing for an uphill effort to revive his push to limit birthright citizenship.
In a Truth Social post Wednesday, the president said he will ask the U.S. Supreme Court to reconsider its “absolutely insane decision” striking down his executive order that would have denied automatic citizenship to certain children born in the United States whose parents are here illegally or only temporarily.
The High Court ruled in a 6-3 decision that President Trump’s E.O. attempting to limit birthright citizenship was unlawful. A five-justice majority that included conservative Chief Justice John Roberts and Justice Amy Coney Barrett determined the Fourteenth Amendment guarantees automatic citizenship to children born in the U.S. even if their parents are here illegally or only temporarily.
Conservative Justice Brett Kavanaugh, meanwhile, concurred in the judgment but on different grounds that some experts believe offer an alternative legislative path forward.
Possible Abuse
In rehashing his frustration withe the SCOTUS decision, President Trump pointed to a Fox News report about Mexican billboards advertising Texas birthing packages as evidence the ruling opens American citizenship to abuse.
The president posted to Truth Social that billboards along the southern border advertise deliveries starting at $4,000 dollars and accused businesses of turning birthright citizenship into a profitable scam. “AMERICAN CITIZENSHIP IS NOT FOR SALE! In fact, that is a crime, and therefore, the Supreme Court’s ruling is wrong. I will be asking for a Rehearing by the United States Supreme Court, IMMEDIATELY,” he wrote, in part.
The healthcare facility Trump was referencing is Mission Regional Medical Center, a nonprofit hospital in Mission, Texas, just north of the Mexican border. Its Spanish-language campaign advertised natural deliveries starting at $3,950 and C-sections starting at $5,525 and directed prospective patients to a since-deactivated website called HaveMyBabyInTexas.com, according to Fox News.
The ads appeared on two billboards near a border crossing in Mexico, complete with an international telephone number for calling the U.S. The marketing campaign reportedly began in 2021, although the hospital did not disclose when the billboards went up.
Republican Texas Governor Greg Abbott has launched an investigation into the medical center, which he accused of targeting foreign nationals in an apparent effort to profit from securing American citizenship for their children.
A spokesperson for Mission Regional Medical Center said the billboards and website were taken down Monday because of what it called an “unintended misunderstanding.”
“Like hospitals across the country and throughout the region, we share information about the healthcare services we provide,” the statement continued. “We do not support or facilitate any unlawful activity and work to comply with all applicable federal and state laws and regulations.”
Legal Analysis
Supreme Court rules allow parties to request another hearing after the justices decide a case. Winning one, however, remains almost unheard of. Legal scholar Stephen Vladeck finding the court last granted rehearing in an argued case in 1965 and reversed one of its own decisions after rehearing only once.
On Friday’s AM Update, Will Chamberlain, senior counsel at the Article III Project, explained why it is extremely unlikely that SCOTUS will rehear this case – though that does not mean the issue is forever settled:
“I think it’s understandable that President Trump would want to do this, and I think he’s actually right on the merits. I think the Supreme Court got this case wrong, but the odds of them actually agreeing to rehear a recently decided case, and then changing their mind are extremely low… I mean, it would just be very, very bizarre. Normally, they wouldn’t do that. I can only imagine in some cases where there’s just this massive new set of new facts that indicate that maybe they were premising their decision on something false or misleading, but nothing really changed in the interim… The Supreme Court takes a lot of time and goes through all the effort of oral argument, briefing, amicus briefs, you name it… I don’t think the majority is about to get up and admit that they got it wrong after doing all this work. It’d be very embarrassing for the court to do so on such short notice.”
Chamberlain pointed to the narrow ideological divide beneath the 6-3 ruling and what he sees as an unexpectedly strong foundation for a future challenge:
“Well, the fact that the conventional wisdom in the legal academy said this would be like a 9-0, that it was a frivolous issue, and there was no research done, and all of a sudden we’re getting four votes in the Supreme Court. That means that this is actually a pretty persuasive argument that has been marshaled by the people who would say birthright citizenship is more limited than the conventional wisdom would suggest… If we’re already winning four votes, then one or two justices changing on the court or maybe 10 years of this policy being enforced… I think we’re ultimately going to win. I think ultimately the case had been wrong when it was decided, and a future Supreme Court is going to reverse it.”
In his view, Congress could eventually force a new constitutional test:
“I could see a world where a future Republican Congress passes a statute that reinterprets birthright citizenship and reinterprets the language subject ‘to the jurisdiction thereof,’ as providing the basis for a challenge. I doubt a future White House will try the same tactic, where they try and do it through an executive order. But I could easily see a world where, say, if the Republicans had a little more control of both the House and Senate, that they would try and pass a statute like this and that would be the basis for another challenge because obviously there would be some sort of lawsuit challenging the statute as unconstitutional.”
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