The MV Times has long reported that the Island’s Brazilian community numbers around 20 percent of the year-round population, which translates to about 4,000 people. But how many children are born to our undocumented Brazilian or other neighbors? The answer to this question is key to the issue that the U.S. Supreme Court has so far failed to address, namely whether children born in the U.S. to undocumented migrants possess U.S. citizenship.
President Trump, on his first day in office in January, signed an executive order denying these children their 14th Amendment right of citizenship because, as the amendment says, children born on U.S. soil are citizens if they are “subject to the jurisdiction” of the U.S. He claimed that they are subject solely to the jurisdiction of the country where their parents were born. His executive order was set to begin with every child born after Feb. 19, 2025.
As I noted in these pages last April, that cannot be the case. For example, anyone who commits a crime on U.S. soil is “subject to the jurisdiction” of the U.S., period. The 14th Amendment guarantees U.S. citizenship to those born here and subject to its jurisdiction, a fact ingrained in the Constitution and federal law, namely Title III of the 1952 Immigration and Naturalization Act.
Three federal district courts placed what are known as “universal injunctions” on President Trump’s executive order. This meant that their decisions covered the entire U.S. and its territories, even though only a handful of plaintiffs appeared before them.
When the administration appealed to the Supreme Court, the justices decided not to take up the issue of birthright citizenship, but only whether federal district courts could issue these universal injunctions. In the lead case, Trump v. CASA from Maryland, six conservative justices ruled that federal judges could only issue an injunction involving the plaintiffs before them. In other words, the order affected only a few people, not the entire country.
The court left the door slightly ajar by an alternative route, namely class-action lawsuits. In fact, federal district court Judge Joseph N. Laplante in New Hampshire in early July certified a class action that affects all children of undocumented immigrants born after Feb. 20, 2025, in all 50 states and the District of Columbia. If upheld, this order will effectively halt President Trump’s unconstitutional executive order. It is to become effective the day before the president’s order is to begin on Feb. 19.
The Supreme Court had three other options. First, it could have allowed federal judges to continue to issue universal injunctions. But no one really likes them. Universal injunctions encourage “judge shopping”; that is, finding a sympathetic court that will rule in your favor. Liberals and progressives were, for example, upset when Judge Matthew Kacsmaryk nationally halted the use of mifepristone, the drug used by women to end a pregnancy. Conservatives were annoyed when 23 district courts upheld national injunctions against President Trump in his first term.
Second, the court could have held that federal judges’ decisions, while not applying to the entire nation, could be enforced in their own district. For example, in the Maryland case, the judge’s order could have applied to the District of Maryland, which covers the entire state. Instead, Justice Amy Coney Barrett, in her opinion for the court, looked way, way back, to the Judiciary Act of 1789, the first law passed by Congress establishing the lower federal trial courts. This was consistent with her originalist approach: She and several of her colleagues on the court claim that their decisions must be rooted in the history and traditions of the U.S. at the time each provision of the Constitution was ratified.
Justice Barrett writes that the Judiciary Act of 1789, 236 years ago, is the foundation for her ruling. That law, she goes on, was based on how the English High Court of Chancery operated in the 18th century. Now, that is originalism on steroids. She asks, Were universal injunctions issued by the High Court of Chancery in England at the time of the adoption of the Constitution, and the enactment of the original Judiciary Act in 1789? She bluntly writes, “The answer is no” –– end of story.
But a third, and the most reasonable, way to consider universal injunctions is to determine whether the issue affects a very specific provision of the Constitution. In this case, they absolutely involve the precise requirements of the 14th Amendment’s guarantee of birthright citizenship. Justice Barrett could and should have determined that the only time judges may issue universal injunctions is when long-standing constitutional provisions are at issue. They certainly are here.
The majority stayed their ruling until July 27 to allow for class action lawsuits to wend their way to them. If class-action lawsuits are effective, perhaps the children of our local undocumented community will without question remain Americans.
Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for many years, and the fourth edition of his book, “The Supreme Court and Constitutional Law,” was published earlier this year.