President Donald Trump says his administration will ask the Supreme Court to reconsider a ruling that affirmed automatic American citizenship for most babies born on U.S. soil, a decision that struck down his executive order seeking to unilaterally redefine the 148-year-old 14th Amendment.
Losing parties have the right to ask for a rehearing, but they are rarely ever granted. The court has only once ever reversed itself after reconsideration.
The nation’s high court has not agreed to rehear any decision on an argued case since 1965, according to Steve Vladeck, a professor at Georgetown University Law Center. The court hasn’t agreed to fully reconsider a ruling, with arguments before the justices, since 1956.
The justices aren’t likely to start again now.
“In other words, ‘sure, Jan,’” Vladeck wrote.
Under federal law, any petition for a rehearing must be filed within 25 days after a decision is made. That petition “shall state its grounds briefly and distinctly,” according to federal law. The petition will not be granted except by a majority of the court — and only if a justice who sided with the original majority opinion agrees to change their mind and rehear the case.
“A note for John Sauer,” wrote appellate lawyer and legal commentator Raffi Melkonian, referencing the U.S. Solicitor General who argued the case. “You don’t need to file a ludicrous motion for rehearing to satisfy the President. You can just quit.”
Trump’s latest request is “really gibberish,” he added.
Any motion to rehear the case “won’t be granted or even really considered,” he predicted.
The last time the court agreed to fully rehear a case, in 1956, involved a constitutional challenge to a court-martial verdict against the civilian spouse of a U.S. service member who was stationed in Europe.
The named plaintiff in the case, Clarice B. Covert, was convicted by a military tribunal for the murder of her husband, an Air Force sergeant stationed in England. She was sentenced to life in prison.
The Supreme Court initially issued a 5-4 ruling that permitted U.S. military courts to exercise jurisdiction over offenses by U.S. service members or their dependents.
But her lawyers successfully petitioned the court to rehear the case, which was reargued in 1957.
Two justices from the initial ruling against Covert had retired, and one of the replacements on the nine-member bench had not yet been seated by the time of the hearing, so he did not take part in any decision.
The landmark 6-2 ruling in Reid v. Covert overturned the previous decision, marking the only time in the court’s history where the court has reversed itself after rehearing a case before it.
Trump’s demand, one day before the anniversary of the 14th Amendment’s ratification, followed a Fox News segment about two Spanish-language billboards along the southern border advertising to pregnant women.
Billboards for Mission Regional Medical Center in south Texas advertising “delivery packages” were removed before Trump’s post and “are no longer in use due to any unintended misunderstanding,” according to the hospital.
“Like hospitals across the nation, we share information about the healthcare services we provide,” the hospital said in a statement. “We do not support or facilitate any unlawful activity and work to comply with all applicable federal and state laws and regulations.”
But social media outrage among Trump’s allies accused the billboards of inviting Mexican women to give birth in the U.S. while the president’s supporters and members of his administration have suggested denying entry to pregnant women altogether.
The president — who is promoting a $1 million “gold card” visa for wealthy foreigners, which he has called a “direct path to citizenship” — said citizenship is “not for sale.”
Billions of dollars from so-called “birth tourism” will be “illegally made by this SCAM, with Citizenship going to anyone willing to pay,” Trump wrote on Truth Social on Wednesday.
“It will be, by far, the number one way of becoming a citizen, and then the entire family will be allowed to follow,” he added. “Not sustainable. NOBODY SAW THIS COMING!!! AMERICAN CITIZENSHIP IS NOT FOR SALE! In fact, that is a crime, and therefore, the Supreme Court’s ruling is wrong.”
The president then said he will ask for a “Rehearing by the United States Supreme Court, IMMEDIATELY.”
“This miscarriage of justice will destroy America if they don’t change their absolutely insane decision,” he said.
The 14th Amendment’s citizenship clause states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”
For more than 100 years, the Supreme Court has upheld the definition to apply to all children born within the United States, and Congress codified that language into law in 1952.
But in an executive order, Trump sought to deny citizenship to the children of mothers who are “unlawfully present” or have “lawful but temporary” status, and if the father “was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
On June 30, the Supreme Court’s majority determined that children who are born in the U.S. to parents who are “unlawfully or temporarily present” are indeed “subject to the jurisdiction” of the U.S. and citizens at birth.
The Supreme Court effectively voted 6-3 to strike down the president’s executive order, but the court only narrowly agreed that the 14th Amendment guarantees citizenship to virtually any child born on U.S. soil.
Chief Justice John Roberts wrote the majority’s decision, which was joined by Trump-appointed justice Justice Amy Coney Barrett as well as liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
“Citizenship, then and now, was the right to have rights — to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’”
Trump-appointed Justice Brett Kavanaugh disagreed with the majority’s decision on whether Trump’s executive order violated the 14th Amendment but argued that the president’s effort violated federal law.
Conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
Alito called the decision a “serious mistake,” and Thomas doubted whether the ruling will “stand the test of time.”
“The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship,’” Thomas wrote in his 91-page dissent. “Today’s opinion devalues that citizenship.”
