Can a decades-old legal phrase reshape who gets to be an American? Who gets the final say—federal judges or the White House?

In this episode of Immigration Weekly, Rosanna Berardi breaks down the buzz around the U.S. Supreme Court’s decision to hear a case that’s technically about birthright citizenship, but really centers on the power of nationwide injunctions.

She unpacks the legal backstory, the Trump administration’s pivot, and what’s truly at stake for the balance of power between courts and the presidency. It’s not just legal drama—this one could have real consequences for how immigration policy is shaped and stopped. Buckle up, it’s a deep but digestible dive into one of the biggest immigration issues brewing right now.

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Transcript

Everyone’s talking about U.S. immigration law, but nobody really knows how it works. I’m Rosanna Berardi. I’m the daughter of an immigrant, a former immigration inspector at the border, university professor, and founder and managing partner of Berardi Immigration Law.

I’ve done nothing but U.S. immigration law for over 30 years, and it’s time to stop the misinformation on all sides. I’m going to tell you how it all works, the inside story. This is Immigration Weekly with Rosanna Berardi.

I’m Rosanna Berardi, your favorite U.S. immigration lawyer. I’m in Buffalo, New York today, and boy, do we have a lot to talk about. So, it’s April 18th.

Understanding Birthright Citizenship

The U.S. Supreme Court announced that they will hear the Trump administration’s case regarding birthright citizenship. So, today, we’re going to unpack what that means, birthright citizenship. What does this case mean?

It’s focusing on injunctions, which are technical legal issues, but I’m going to explain it in a way that you’re going to be like, wow, your friends are going to be like, you’re the smartest person I’ve ever known, and we’re going to talk about the Supreme Court and how they’re going to address this issue. So, let’s roll it back to the beginning. Birthright citizenship.

This has been an issue for the Trump administration during the first cycle of the election back in 2015-16 and now. So, birthright citizenship really says if you were born in the United States on U.S. soil, physically present in the United States, then you are a U.S. citizen. It’s a pretty simple concept, and this comes from the Citizenship Clause of the 14th Amendment, and I’m going to read it to you because this language is important.

All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and the end of the state wherein they reside. Okay, that’s written kind of clunky, and those words subject to the jurisdiction thereof in true legal fashion are at the heart of this debate. So, why was it written this way?

Well, this goes back to the 1800s. It was written in response to the Dred Scott Decision 1857, which said slaves could not be considered U.S. citizens. So, this was incorporated in the Constitution, and it was aimed to say that if you were a slave, you would be allowed to be a U.S. citizen as well as your children. So, in other words, the U.S. is a birthright for everyone born here regardless of their race, and this has been long held for years and years and years by case law. It’s been bounced back and forth, back and forth, but really the key precedent for 200 plus years is anyone born on American soil is entitled to citizenship, and that’s what is at controversy here. It’s been backed up by the Supreme Court.

It’s been settled year after year, but the Trump administration’s saying, we don’t agree. We don’t like this. We think subject to the jurisdiction thereof means something different.

So, let’s talk about what happens next. So, the Trump campaign before President Trump was elected said we’re going to get rid of this. We don’t like it.

We don’t think if you are here unlawfully and you are not a U.S. citizen or a lawful permanent resident, your children should not be able to be deemed U.S. citizens, and this all goes around the term you probably have heard, anchor baby, where illegals come to the U.S. to have children, and people say to me all the time, well, they do that because then they get to stay, and that’s not true. That baby is a U.S. citizen but cannot sponsor his or her mom until he or she is 21 years old. So, these anchor babies, I don’t really know how much of an anchor it is, but nonetheless, on inauguration day in January 20th of 2025, Trump administration, President Trump got his pen out, that big pen that he signs all the executive orders and says, no more, no more birthright citizenship.

So, every lawyer and their brother was like, this is going to go right to the courts, courts are going to say no way, it’s unconstitutional, but how did it go to the courts is really the linchpin here. So, basically, this case was brought to a lot of different courts. 22 states filed a lawsuit saying, nope, this is patently unconstitutional.

They use that word over and over again. At least 22 states, New Jersey, Washington, California, a lot of immigration advocacy groups, lots of individuals saying this blatantly violates the 14th Amendment and we’re filing all of these lawsuits. So, they were filed and within a few weeks, three different federal judges, Washington State, Maryland, and Massachusetts, each ruled against the Trump order and issued a nationwide injunction blocking it from taking effect.

Okay, what’s an injunction? An injunction is a fancy word in my world of legalese that says an injunction is a court order telling somebody to stop, pump the brakes, do not go any further. So, the injunction is hitting the brakes on the car and the car is some type of law or order that the government promotes.

So, in this case, three federal judges all issued injunctions saying, we don’t like this. We think this is patently unconstitutional and we’re going to issue injunctions. So, it is no longer in effect as of today because of these three injunctions.

Now, just think about the injunction, zoom out, take all of your biases and your opinions out of the equation when it comes to birthright citizenship. The injunctions allow laws, not really laws, executive orders to be stopped and who’s issuing those injunctions? Judges.

We have a conflict here. We have the judges and the executive branch fighting and the executive branch is saying no more birthright citizenship and the judges are saying stop. We are not letting this go forward and more importantly, it stops it everywhere in the United States.

So, even though the federal judges heard these cases in specific states, that injunction has the broad power to stop the executive order across the United States. Government, administrations, Democrat, Republican, equally have been complaining about these injunctions forever because the argument is they give individual judges way too much power. I mean, think about it.

A federal court judge in Maryland stopped this executive order in its tracks. Yeah, we are three branches of government executive, legislative, judicial, but in this case, the Trump administration’s argument is those injunctions are too broad. If in Maryland the case is brought and the federal judge says, yes, we are going to stop this in the state of Maryland, the Trump administration says, that’s okay, but stop it all throughout the United States.

These broad injunctions are what’s at heart here and why the US Supreme Court said, okay, we’re going to take a look at this one. Very unusual. The argument for the broad injunction is that we’re a huge country.

We require a nationwide remedy, particularly when there’s large numbers of people that can’t easily or quickly bring individual lawsuits. So, these broad injunctions are sweeping and stop everything. Think about if we didn’t have them.

So, like in Maryland, there’d be no birthright citizenship, but in the state of Washington, there would be. It would be chaotic, right? I mean, think about that.

The United States of America, united is in our name. Yeah, things differ by state, but these are federal issues promised and beheld by the United States Constitution. So, the critics of the injunctions are like way too broad, gives judges too much power.

You’ve got judges essentially governing the entire nation from their courtroom. And a lot of opponents say, you know, lawyers are smart. They file these claims in courts that they think will be friendly to these arguments.

It’s called form shopping. It’s selecting a venue that has jurisdiction over your claim. When you know the judge to be more liberal or conservative, you can form shop to get the answer that you want.

So, critics to these injunctions are like, no way, too much power to the judges. We can’t let this happen. So, what does this mean for birthright citizenship?

I know this is a long one. Stay with me here. The U.S. Supreme Court yesterday announced we’re going to hear this argument. And guess what? If I was to bet, they’re not going to talk much about birthright citizenship. They’re going to talk about injunctions, which legal eagles and nerds like me can’t wait to hear what they’re going to say.

But really, the cornerstone of this case is going to be whether a single judge or three judges in this instance should have the power to halt a presidential policy across the entire country, all 50 states. We’re going to see what the Supreme Court does and whether they think those lower court judges overstep their authority by blocking the policy nationwide. It is a really technical legal question, but you guys, this has huge consequences.

And I just want you to zoom out for a minute because everything is very like Trump-centric these days. Many, many administrations prior to the Trump administration have complained about these injunctions because, again, it appears that a federal judge can really block the federal government or the president. So, we’re going to see it decided on a legal issue.

The U.S. Supreme Court said we’re going to hear it. Arguments are scheduled for May 15th. I’m super interested.

And the Supreme Court generally issues a decision at the end of their term, which is usually end of June, beginning of July. So, we’re going to know this one in a matter of months. So, really, let’s go back to the heart of this case, the birthright citizenship.

So, we covered it at the beginning. Trump administration, the minute that they were elected, inaugurated, they’re saying, not so fast. We don’t want people that are here unlawfully to pass the benefit of U.S. citizenship on to their children. Now, remember at the beginning of the episode, I focused on these four words, subject to the jurisdiction thereof. What the heck does that mean? Old language written in the 1800s.

The Real Fight: Injunctions and Judicial Power

The Trump administration is saying subject to the jurisdiction thereof was never meant to cover everyone that was born in the United States. They’re also saying the founding fathers that wrote the 14th Amendment didn’t intend to grant citizenship to people who were in the country illegally or only briefly. The Trump administration, President Trump’s got on record saying, this 14th Amendment was only intended to apply with respect to slavery.

This was not a catch-all for all people in the United States who have children here to be U.S. citizens. Not a common view, but a view nonetheless. Case law, nope, doesn’t like it.

No courts really agreed with this interpretation. You know, the 22 states came out and said, this is blatantly violating the 14th Amendment. The federal court judges said, nope.

Every court that’s looked at this so far has said, no, we think this violates the U.S. Constitution, so we’ve got to put it on hold. Interestingly, though, that the Trump administration appealed these rulings to three U.S. Court of Appeals. That’s a layer above the federal district courts.

Guess what they said? Nope, we don’t like this either. Injunction, we don’t like this.

So what happened next is super interesting. A little bit of a drama here. The Trump’s team made a strategic pivot.

They stopped asking for the courts to decide on this birthright citizenship issue. They’re like, okay, whatever, we’re not getting anywhere. We’re going to ask the U.S. Supreme Court to look at this technical issue of these nationwide injunctions. We’re going to ask the court to say and look and analyze whether these universal injunctions should apply to everybody, whether federal court judges should have the authority, and we’re not really going to focus on this birthright citizenship issue. We’re going to backdoor it. So the headlines that came out yesterday were all about Supreme Court agrees to take on birthright citizenship.

Oh my God, people are starting to worry. The devil’s in the details, and the headlines always misleading. Yes, they did agree to take on this case, but the Trump administration’s asking them about the injunctions.

So we’re going to see what happens. An emergency appeal was filed. They didn’t ask the court, they did not ask them to uphold the new citizenship policy.

They’re asking how these injunctions of lower court judges are to be applied. So we’re going to see what happens between this argument between the presidential branch and lower courts. So it’s unusual for the Supreme Court to take an emergency appeal really on an issue that they’re not really going to talk about birthright citizenship.

This happens a lot in the Supreme Court. They oftentimes will not make a ruling based on the actual substantive issue at hand, but some type of logistic or technical issue underneath it. So we’re going to see what happens on this one.

And like I said, the arguments are scheduled for May 15th, just around the corner. And we’re going to see really what the authority of district court judges are to issue this nationwide injunction. We’re going to see what could happen here.

There’s a lot at stake. I mean, the birthright citizenship issue does hang in balance. I mean, a ruling in Trump’s favor, if they actually talk about this, could mean that in short, a kid born in Maine to an unlawful individual in the U.S. could be a citizen, while one born in Maryland could not. That’s a tough one. That’s not ever happened in American history. But more importantly, well, just as important, I would say, this is going to have a broader impact on the balance of power between the judiciary and the presidency.

We got two branches of government fighting saying, no, I get the final word. And the judiciary is saying, no, that’s our job to check you. We’ll see how this plays out.

Kind of a parent-child relationship. I won’t say who the child is here. Ha ha ha.

But there’s a lot that hangs in store here. And just remember, when things go up to the Supreme Court, generally, it’s not for the reason that people think. In this case, the Trump administration made a strategic pivot and said, hey, we’re getting nowhere with our argument.

But there’s a problem here with injunctions. And other administrations have had problems with this. So let’s see what the U.S. Supreme Court says. So anyway, that’s what’s happening on birthright citizenship. Complicated, complex, hugely fascinating. This decision will have ongoing impact in many, many ways either way.

So stay tuned. I’m teaching you to think beyond that headline that you saw yesterday on Fox or CNN that said the U.S. Supreme Court is making a decision on birthright citizenship. There should have been an asterisk saying, or in parentheses, the impact of injunctions by lower courts.

Not a sexy news line. Not a sexy story. Boring.

Clickbait. Much, much better to think about them talking about and deciding on birthright citizenship. Thank you for joining us this week.

Be sure to subscribe to the channel so you don’t miss any of my fascinating analysis. And share this with your friends. Until next time, have a great day.

This was Immigration Weekly with Rosanna Berardi. Thanks for joining. Be sure to connect with me, Rosanna Berardi, on LinkedIn or go to our law firm at  berardiimmigrationlaw.com.

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