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The Supreme Court heard arguments Thursday on two monumental questions for the Trump presidency: Can President Donald Trump effectively decide which babies born in the United States get citizenship, and what ability do courts have to rein in a president?

The first question is a concept known as birthright citizenship, which most mainstream legal scholars say is set in stone because it’s in the Constitution, despite Trump’s efforts to end it for babies born in America to undocumented immigrants.

The justices are also considering, at the Trump administration’s request, whether a single judge can stop a policy nationwide. It’s called a nationwide injunction, and it’s become an important judicial tool to pause what some judges have declared are Trump’s unconstitutional changes to the law.

Amanda Frost, who heads the University of Virginia’s immigration program, said she’s taken aback that the justices are considering changes to courts’ power to issue nationwide injunctions in this birthright citizenship case.

“This is the poster child for needing nationwide injunctions,” she said. Without it, she said, Trump would have been able to unilaterally carve out exceptions to a long-held constitutional right, and only those who individually sue could get relief from it.

Here’s what’s being debated.
Can Trump end birthright citizenship?

It could be an uphill battle. The 14th Amendment of the Constitution says anyone born on U.S. soil has American citizenship. Trump signed an executive order that declared children born to undocumented immigrants aren’t subject to this right. “The privilege of United States citizenship is a priceless and profound gift,” it said.

Courts across the country pretty quickly temporarily paused Trump’s changes from taking effect. One judge called this “blatantly unconstitutional.”
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Kim Lane Scheppele, who studies the rise and fall of constitutional governments at Princeton University, stressed that an executive order is the lowest tier in terms of law, and the Constitution is the highest. “It’s the first thing we teach law students,” she said.

But the Supreme Court agreed to hear an emergency request from the Trump administration in this case.
Why birthright citizenship is so established

The argument against it had not been a mainstream one until recently. Some conservative scholars have argued that citizenship shouldn’t apply to children of undocumented immigrants because their parents aren’t fully under the jurisdiction of the U.S. government and therefore shouldn’t get to be citizens.

But following that logic would also mean that undocumented immigrants can’t be punished for committing crime in the U.S. because they are subject only to their home country’s laws, Saikrishna Prakash, a constitutional law professor at the University of Virginia, told me recently.
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Other experts emphasize that being born in the United States is one of the basic legal foundations for U.S. citizenship. If you take that away for some, you throw into question the citizenship of everyone.

“Why am I a citizen? Or you?” said Andrew Rudalevige, who studies the modern American presidency at Bowdoin College and has written a book on the limits of presidential power. “We are citizens because of the 14th Amendment, because of the fact we were born here.”

The Trump administration also argued Thursday that the amendment was meant to apply to the children of formerly enslaved people, not immigrants. Congress passed the 14th Amendment in the period after the Civil War in response to what’s known as the Supreme Court’s Dred Scott decision that denied citizenship to Black Americans.
Why nationwide injunctions are up for debate

Rather than ask the Supreme Court to weigh in on birthright citizenship, the Trump administration asked the court to stop the lower courts’ ability to make nationwide injunctions against his executive orders.

A liberal Supreme Court justice suggested the Trump administration was using this issue as a way to keep Trump’s birthright citizenship changes in effect for years — until the court eventually strikes it down on its merits.

“You’re losing a bunch of cases,” Justice Elena Kagan told the government. “If I were in your shoes, there is no way I would approach the Supreme Court with this [birthright citizenship] case.”

Still, presidents of both parties have criticized the ability of one judge to weigh in on their policies. Trump and his allies argue that liberal activists are finding judges who are willing to use this tool to throw wrenches in his governing.

Some of the conservative justices seemed open to limiting nationwide injunctions by allowing different types of lawsuits.

Legal experts I spoke with counter that recent presidents have brought these injunctions upon themselves by expanding their power in ways that force the courts to step in — none more so than Trump, who has issued more executive orders at this point in his presidency than any other president in recent history.

Judges weigh in on a policy nationwide when it has a nationwide effect and could cause harm across the nation, said Barbara McQuade, a former U.S. attorney who now teaches at the University of Michigan Law School. Otherwise there would be a patchwork of legal rulings affecting some parts of the country and not others. Anyone affected by a national policy would have to sue to get relief.

“Under that scenario, it would be impossible to administer the law,” McQuade said. “Birthright citizenship would be available to babies born in one judicial district but not the others. Transgender service members would be permitted to serve on military bases in one part of the country but not another.”

Nationwide injunctions are a relatively small price to pay to put the third branch on more equal footing with a power-reaching executive, said Frost, with the University of Virginia.

“To me,” she said, “the risk of an overreaching executive unilaterally writing a law is far greater than the cost of maybe a lawful policy being suspended for a few months while it’s litigated