The Supreme Court today will hear arguments on President Donald Trump’s consequential first-day executive order in 2025, a case that could upend a long-held understanding on who is considered a U.S. citizen.
The executive order, which is not retroactive, would make it so that babies of immigrants who are in the country without authorization — or whose presence is lawful but temporary, like students or people on work visas — do not receive citizenship.
Some critics call Trump’s directive a plainly unconstitutional action rooted in racially discriminatory anti-immigrant views, while others say the White House could seek to achieve some of its goals through other means or by leaning on Congress to take up legislation.
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In its legal brief, the American Civil Liberties Union (ACLU) told the top court that birthright citizenship is “a pillar of American culture and society.”
Lawyer Cecilia Wang, who will argue against the order on the ACLU’s behalf, told the Washington Post that Trump’s order would be “an earthquake in American life, with radical consequences that we can’t completely predict.”
The case on Wednesday, many legal experts say, will likely turn on five words of the 14th Amendment.
Trump left the White House for the Supreme Court Wednesday morning. There is no record of a president previously attending oral arguments.
Trump has lambasted judges and even conservative justices Neil Gorsuch and Amy Coney Barrett, calling them “an embarrassment to their families” after a recent top court ruling on tariffs went against the administration.
Chief Justice John Roberts, meanwhile, has on at least two occasions since last year rebuked personal attacks on judges, at a time when threats to the judiciary are on the rise.
White House argues it incentivizes illegal immigration
The U.S. — along with Canada — is among about three-dozen countries, nearly all in the Americas, considered to have unconditional birthright citizenship, according to the Global Citizenship Observatory research project at European University Institute’s Robert Schuman Centre for Advanced Studies.
The administration has said that granting citizenship to virtually anyone born on U.S. soil has created incentives for illegal immigration and led to “birth tourism,” by which foreigners travel to the United States to give birth and secure citizenship for their children. It was for those reasons, primarily, that countries such as Britain and Australian changed the law for a more conditional definition of citizenship.
Donald Trump speaks at the White House on Feb. 20, as Solicitor General John Sauer looks on. Sauer will argue Wednesday’s case for the government. (Alex Brandon/The Associated Press)
But Trump’s executive order, a lower court in New Hampshire found, violated citizenship language in the U.S. Constitution’s 14th Amendment.
In his brief to the Supreme Court, Solicitor General John Sauer wrote that “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.”
The 14th Amendment was ratified in 1868 in the aftermath of the Civil War that ended slavery in the United States, overturning a notorious Supreme Court decision from a decade earlier that had declared that people of African descent could never be U.S. citizens. Another consequential ruling came in 1898 in United States v. Wong Kim Ark, when the court ruled that the government had erred in denying re-entry to the country to a California-born cook whose parents were both born in China.
Two mid-20th century acts, including the 1952 Nationality Act, provided more clarification, indicating that “a person born in the United States, and subject to the jurisdiction thereof” is considered a citizen.
Concerns about ‘stateless’ children
The nonpartisan Migration Policy Institute has argued that repealing birthright citizenship would “significantly swell the size” of the population in the U.S. that is considered unauthorized, while leaving an average of about 255,000 children per year born on U.S. soil without citizenship.
Trump in his first term also railed against birthright citizenship, and the State Department was instructed to limit tourist visas to pregnant woman.
But on the 2024 presidential campaign trail that capped his political comeback, Trump said that migrants were “poisoning the blood of our country” and Republican allies of the president have sought to highlight violent crimes committed by those in the country illegally.
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In the administration’s first week, press secretary Karoline Leavitt said that the White House considers foreign nationals who enter the U.S. between border points as “criminals,” a departure from the long-held view of governments, both Republican and Democrat, that the vast majority of those who are unauthorized in the country committed a civil immigration offence in reaching the U.S.
Since last year, the U.S. has throttled even legal asylum applications and undertaken an expansive deportation campaign which has included sending non-citizens to countries they don’t originally hail from, another departure from past administrations.
As well, through social media messaging and its spokespeople, the Department of Homeland Security has urged DACA recipients — undocumented American residents in the country for many years after being brought to the U.S. as a children — to self-deport, saying they don’t enjoy “any form of legal status in this country.”
Given some of those facts, critics have expressed concern that Trump’s executive order could pave the way for the administration to pursue more onerous or even retroactive restrictions.
In one of several so-called “friend of the court” briefs, dozens of municipal and local officials from across the U.S. argue that the order would create “stateless” children subject to stigma and discrimination, and whose access to basic services and health care would be compromised
Whose jurisdiction?
David Cole, professor of law at Georgetown University, has written that the central question in the case will be the meaning of “subject to the jurisdiction thereof” in the 14th Amendment.
The administration has asserted that the phrase means that being born in the United States is not enough for citizenship.
Citizenship is granted only to the children of those whose “primary allegiance” is to the United States, including citizens and permanent residents, the administration has argued. Such allegiance is established through “lawful domicile,” which lawyers for the administration define as “lawful, permanent residence within a nation, with intent to remain.”
Former federal prosecutor Elie Honig wrote this week in New York magazine that “a Mexican-born parent living illegally (or with temporary status) in the U.S. is unquestionably ‘subject to the jurisdiction of,’ given that they can be arrested, imprisoned, taxed and regulated by various levels of the U.S. government.”
Honig, also a CNN legal analyst, predicted that at least seven justices will reject the U.S. government’s attempt to amend the meaning of citizenship, citing conservative justices Barrett, Gorsuch and Brett Kavanaugh as ones to watch, as well as Chief Justice Roberts.
The positions of the three liberal justices aren’t likely to be budged by Sauer’s arguments. In a dissent to last year’s injunctions ruling, Justice Sonia Sotomayor wrote: “Children born in the United States and subject to its laws are United States citizens.”
