The Trump administration did not ask the U.S. Supreme Court to rehear its 6-3 birthright citizenship ruling, allowing an extraordinarily rare legal remedy to lapse while President Donald Trump and Republican lawmakers continue pursuing legislation or a constitutional amendment to limit automatic citizenship for children of illegal aliens and temporary visa holders.
No rehearing petition appeared on the court’s electronic docket for Trump v. Barbara as of Wednesday morning. The court issued its decision on June 30. Under Supreme Court rules, the administration had 25 days to seek rehearing. Because the 25th day fell on Saturday, July 25, the deadline moved to Monday, July 27.
“I will be asking for a Rehearing by the United States Supreme Court, IMMEDIATELY,” Trump wrote in a July 8 Truth Social post, according to an account published by SCOTUSblog. He called the ruling a miscarriage of justice. The White House and U.S. Department of Justice had not publicly explained the missed filing.
Rehearing was a long-shot remedy
Rule 44 states that rehearing requires a majority of the court and must occur at the instance of a justice who agreed with the original judgment or decision. Because only three justices dissented, reversing the result would effectively have required at least two of the six justices who rejected Trump’s order to change course.
The Supreme Court has not granted rehearing in an argued case since 1965, when it modified a judgment to allow additional lower-court proceedings, according to an analysis by law professor Stephen Vladeck reported by SCOTUSblog. The last rehearing that produced a reversal on the merits came in 1956.
Five justices relied on the Constitution
As previously reported by The Dallas Express, the court rejected Executive Order 14160 on June 30. The order directed federal agencies to deny citizenship documents to certain U.S.-born children when the mother was an illegal alien or a temporary visa holder and the father was neither a U.S. citizen nor a lawful permanent resident.
Chief Justice John Roberts wrote the five-justice opinion holding that the order conflicted with the 14th Amendment’s Citizenship Clause. Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson joined him.
Justice Brett Kavanaugh supplied the sixth vote against the order but rejected the majority’s constitutional reasoning. He concluded that the order violated 8 U.S.C. Section 1401(a), a federal citizenship law. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented and would have allowed the order to take effect.
“Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” Kavanaugh wrote.
Congressional fight continues
Republicans have proposed both legislative and constitutional paths. U.S. House Speaker Mike Johnson (R-Louisiana) said Congress may need a constitutional amendment. U.S. Sens. Rand Paul (R-Kentucky) and Mike Lee (R-Utah) have also called for an amendment, while Trump has urged Congress to change the law through legislation, Fox News reported.
Kavanaugh’s opinion gives supporters of tighter birthright citizenship rules a statutory roadmap. However, Roberts and the other four justices in the constitutional majority rejected Kavanaugh’s reading of the 14th Amendment, meaning any federal law adopting Trump’s approach would face an immediate constitutional challenge.
Congress has not enacted either approach. The Supreme Court’s June 30 judgment remains in place, and Executive Order 14160 remains unenforceable.
Provided by Dallas Express
