N.J. Solicitor General argues birthright citizenship case before U.S. Supreme Court

An effort by Democratic attorneys general to block President Donald Trump’s executive order ending birthright citizenship for the children of undocumented immigrants and other non-green card holders came before before the Supreme Court today – and their arguments were made by New Jersey’s Solicitor General, Jeremy Feigenbaum.

After Trump issued his executive order on January 20, several different state-based lawsuits were immediately filed to block it, including one 18-state lawsuit that was filed in Massachusetts but led by the New Jersey Attorney General Matt Platkin. Federal judges in all three cases issued injunctions blocking the order, saying it likely ran afoul of the Constitution, and appeals court judges upheld those injunctions; the Trump administration then asked the Supreme Court to review the three cases, at which point they were combined into Trump vs. New Jersey.

At issue before the Supreme Court today, then, were two distinct issues: whether the three lower court judges were correct in finding that Trump’s birthright citizenship order was likely unconstitutional, and whether they should have the ability to issue sweeping nationwide injunctions at all.

In his arguments, Feigenbaum both cited the long history of birthright citizenship under the 14th Amendment – the Supreme Court’s landmark 1898 decision in United States vs. Wong Kim Ark has long protected the citizenship rights of nearly anyone born on American soil – and dismissed U.S. Solicitor General D. John Sauer’s arguments about the recent prevalence of nationwide injunctions against the Trump administration.

“[The government’s] argument that a single district court cannot decide birthright citizenship, or that we need more percolation on that question for the nation, overlooks that this court already settled this exact Constitutional question 127 years ago, and that this [executive order] is contrary to over a century of executive practice,” Feigenbaum said.

“It’s not just that district courts are saying, ‘This looks like it might be unlawful.’ They’re saying, ‘Wong Kim Ark settled this exact issue 127 years ago, this court has reaffirmed it since, over a century of executive practice is built on that, and Congress has codified that directly into law,’” he added later in response to questioning from Supreme Court Justice Ketanji Brown Jackson. “So I do think it’s a particularly unusual case for the government to be saying that it has been quite so harmed and needs this kind of relief.”

The 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” plain language that has made judges highly skeptical of the Trump administration’s claim that it should not apply to the children of some immigrants. Several Supreme Court reporters, however, noted that today’s arguments revolved more around nationwide injunctions, and on that issue justices seemed to be more divided.

The 36-year-old Feigenbaum is one of New Jersey’s fastest-rising legal stars; a former clerk for Supreme Court Justice Elena Kagan, Feigenbaum was chosen as the state’s first-ever Solicitor General in 2020, and has since argued multiple cases before the Supreme Court. (He was also under consideration for an federal appellate judgeship under Joe Biden, but the Biden administration ultimately decided he was too young for the role.)

Platkin, who was present in Washington today, issued a joint statement alongside his fellow Democratic attorneys general reaffirming their belief that Trump’s order is unconstitutional and would cause unnecessary chaos if allowed to go into effect.

“For 127 years, since the Supreme Court settled the issue, the law has been clear: if you are born in this country, you are a citizen of the United States and of our States,” they said after oral arguments had concluded. “Administrations of both parties have consistently respected that right ever since. As every court to have considered the policy agrees, the President’s attempt to end birthright citizenship is patently unconstitutional.”