The Supreme Court will convene on Wednesday to consider President Trump’s executive order seeking to end birthright citizenship.
The high court will examine whether the order violates the 14th Amendment’s Citizenship Clause and the federal law that codifies it. The case, Trump v. Barbara, marks the first time the justices will review the legal merits of one of Trump’s immigration policies.
Trump signed the order on the first day of his second term. It denies citizenship to children born in the U.S. to mothers unlawfully present and fathers who are neither citizens nor lawful permanent residents, or to mothers with temporary lawful status and fathers lacking citizenship or permanent residency.
The order applies to babies born more than 30 days after its effective date and directs agencies not to issue or accept citizenship documents for them.
Lower courts have blocked enforcement since challenges arose soon after signing. No lower court has adopted the administration’s view of the Citizenship Clause, which 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.”
The executive order claims the Citizenship Clause “has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,'” CBS reported.
The Supreme Court addressed related challenges last term but limited itself to narrowing nationwide injunctions, ruling them “broader than necessary” for plaintiffs’ relief. Lower courts then reevaluated blocks on the order.
The American Civil Liberties Union and others filed a class-action suit on behalf of three plaintiffs whose children faced denial of citizenship. U.S. District Judge Joseph Laplante certified the class provisionally and blocked enforcement against them. The administration appealed to the 1st Circuit but also sought direct Supreme Court review. Justices agreed in December.
Ahead of arguments, Trump posted on Truth Social: “‘Dumb Judges and Justices will not a great Country make!'” He also claimed other countries sell citizenship to the U.S. and called the federal court system “stupid,” according to CBS.
The court last ruled on birthright citizenship in 1898’s United States v. Wong Kim Ark. The Court, in a 6-2 decision by Justice Horace Gray, affirmed citizenship for a San Francisco-born man of Chinese parents with permanent U.S. residence, who was denied reentry after a trip to China under exclusion laws.
Solicitor General D. John Sauer argues the clause covers only those “completely subject” to U.S. political jurisdiction, owing “direct and immediate allegiance.” He excludes children of undocumented immigrants, whose law-breaking shows insufficient allegiance, and those of temporary visitors, lacking ties. Sauer says Wong Kim Ark required permanent domicile for non-citizen parents and faults executive misreading since the mid-20th century, fueling illegal entry and birth tourism.
The order corrects this, Sauer contends, addressing migration, security risks, and citizenship devaluation.
“Aliens could obtain the priceless gift of U.S. citizenship for their children by violating the United States’ immigration laws — and by jumping in line ahead of others who are complying with the law,” he wrote, CBS reported.
It allows derivative benefits, aiding parents in avoiding removal. On statutory grounds, Sauer says Congress incorporated constitutional meaning via “subject to the jurisdiction thereof” in the 1940 and 1952 acts.
ACLU lawyers counter that the amendment guarantees birth-based citizenship regardless of parents’ status, save narrow exceptions like diplomats.
“The government is asking for nothing less than a remaking of our Nation’s constitutional foundations,” they wrote, per CBS. “The Order may be formally prospective, applying to tens of thousands of children born every month, and devastating families around the country. But worse yet, the government’s baseless arguments — if accepted — would cast a shadow over the citizenship of millions upon millions of Americans, going back generations.”
They invoke English common law and Lynch v. Clarke (1844), where a New York court held: “every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.” Wong Kim Ark extended this to “virtually all foreign nationals.”
The ACLU faults Trump’s push to overturn a 128-year precedent without reason.
“To the extent the government’s complaint is that birthright citizenship is part of what draws immigrants to this country, that is simply one of many features of American life that the Framers embraced, alongside freedom and equality,” it stated. “They deliberately chose a rule that would apply to the children of immigrants, and that choice — enshrined in the Constitution and reflective of our national values — is a pillar of American culture and society.”
Plaintiffs say change requires amendment. On the statute, Congress understood the common-law rule.
Justices could uphold on both grounds, strike down entirely, or nix on statutory terms without reaching the Constitution.
The order is prospective, per administration guidance from U.S. Citizenship and Immigration Services and Social Security Administration. ACLU calls this “cold comfort,” warning of broader fallout. Over 200 Democratic lawmakers cautioned in a brief that victory would retroactively disenfranchise millions from voting, passports, and more, despite their temporary treatment as citizens.
A decision is expected by late June or early July.
