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The Supreme Court is poised to answer a fundamental constitutional question largely ignored for more than a century: Who qualifies as an American citizen?
The justices on Wednesday will hold oral arguments to review President Donald Trump’s efforts to limit birthright citizenship in the U.S., a landmark case with the potential to upend the lives of millions of Americans and lawful residents.
At issue is the executive order the president signed on his first day back in office, which would end automatic citizenship for nearly all persons born in the U.S. to undocumented parents, or parents with lawful temporary status in the country — a seismic legal, political, and social shift that critics note would break with more than 150 years of legal precedent.
A ruling is expected within three months but until then, Trump’s plans remain on hold.
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The case is the fourth of a five-part series of appeals the Supreme Court will consider this term on the merits of Trump’s sweeping executive agenda.
The nine-member bench has already tossed out his reciprocal tariffs on most other countries, which relied on an economic emergency law. A separate dispute over ending protections for migrants with temporary protected status will be argued later in April.
Still pending are rulings on the president’s ability to fire members of independent agencies, including Federal Reserve governors.
But the administration has been winning most of the emergency appeals at the Supreme Court since Trump took office again, which dealt only with whether challenged policies could go into effect temporarily, while the issues play out in the lower courts– including immigration, federal spending cuts, workforce reductions, and transgender people in the military.
Constitutional Meaning
Trump’s order now before the high court for final review would reinterpret the 14th Amendment, which states, “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” — a provision the president argues has been misinterpreted.
Executive Order 14160, entitled “Protecting the Meaning and Value of American Citizenship,” would deny it to those born after February 19, 2025 whose parents are illegal immigrants, or those who were here legally but on temporary non-immigrant visas.
And it bans federal agencies from issuing or accepting documents recognizing citizenship for those children.
“The privilege of United States citizenship is a priceless and profound gift,” says part of the order. “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”
A Supreme Court ruling on the issue could have sweeping national implications for an issue Trump officials argue is a crucial component of his hardline immigration agenda, which has become a defining feature of his second White House term.
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In its high court petition, the Trump Justice Department said all lower court decisions handed down last year striking down the executive order had relied on a “mistaken view” with potentially “destructive consequences.”
“The lower courts’ decisions invalidated a policy of prime importance to the president and his administration in a manner that undermines our border security,” said John Sauer, U.S. Solicitor General, who will make the case in person at oral arguments.
“Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people,” he added.
Opponents argue the effort is unconstitutional and “unprecedented,” and would threaten some 150,000 children in the U.S. born annually to parents of non-citizens, and an estimated 4.6 million American-born children under 18 who are living with an undocumented immigrant parent, according to data from the Pew Research Center.
Separate coalitions of about two dozen states, along with immigrant rights groups, and private individuals — including several pregnant women in Maryland — had filed a class-action lawsuit.
The plaintiffs — including those originally from Taiwan and Brazil — seek to preserve access to citizenship-related benefits including Social Security, SNAP, and Medicaid.
To date, no court has sided with the Trump administration’s interpretation of the 14th Amendment, and blocked the order from taking force.
The ACLU and other immigrant advocacy groups in the U.S., have accused Trump of attempting to “unilaterally rewrite the 14th Amendment.”
“The federal courts have unanimously held that President Trump’s executive order is contrary to the Constitution, a Supreme Court decision from 1898, and a law enacted by Congress,” said ACLU legal director Cecillia Wang, who will argue for the plaintiffs in the courtroom session. “We look forward to putting this issue to rest once and for all in the Supreme Court this term.”
The Arguments
Much of the public session is expected to focus on a phrase in the Constitution that the government asserts limits the citizenship right.
“The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,'” said Trump’s original order, which the Justice Department essentially interprets as “being subject to U.S. law” — which would give the government discretion to exclude those whose parents are in the country illegally.
But lawyers for the plaintiffs say a century-old Supreme Court ruling affirmed the phrase only excluded automatic citizenship to children born to foreign diplomats or hostile forces.
Supporters of a broad, traditional interpretation point to the 14th Amendment’s origins — passed after the Civil War to end the practice of excluding individuals of African descent, including slaves and free persons, from ever becoming U.S. citizens.
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Thirty-one years after its enactment, the Supreme Court for the first time decided the status of children born in the U.S. to alien parents, creating the precedent of how the Citizenship Clause would be applied in future cases.
Plaintiff Wong Kim Ark was born in San Francisco and became a cook, but was subject to the Chinese Exclusion Act and denied reentry to the U-S after a trip abroad.
In its landmark ruling, the high court concluded, “A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States… becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.”
The Impact
A recent Pew Research poll asked Americans whether they wanted children of immigrants, temporary immigrants or any immigrants lawfully present in the United States to be citizens, and 94% said yes.
Critics of the administration’s plans fear a chaotic and unfair patchwork of enforcement that would apply in some states and not others, some families and not others, and that it could be sweeping in scope.
“Under the executive order, that child is born a non-citizen,” Amanda Frost, director of the Immigration, Migration and Human Rights Program at the University of Virginia School of Law. “Denied all the benefits and privileges of citizenship and theoretically deportable on day one of their life. And then every single American family having a child will now have to prove their status before that child is considered a citizen by the U.S. government. And that doesn’t matter if they go back to the Mayflower. That’s what everyone will have to prove going forward.”
But immigration reform advocates point to what they call abuses in the system.
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“That is the exploitation of America’s birthright citizenship policy… particularly those by nationals of the People’s Republic of China,” Peter Schweizer, president of the Government Accountability Institute. “Birth tourism is essentially an industry that provides concierge service at every step of the way for a foreign national, in this case China, to pay the firm roughly $100,000, they will transport them to the United States, arrange medical care, arrange citizenship for the child,” he added. “And as soon as the child is old enough to travel, they will return back to China.”
In oral arguments last May when the Supreme Court first looked at Trump’s birthright citizenship order, many on the bench were skeptical of the Trump administration.
The government’s position “makes no sense whatsoever,” said Justice Sonia Sotomayor, saying it could leave some children “stateless.”
“So as far as I see it, this order violates four Supreme Court precedents,” added Sotomayor. “And you are claiming that not just the Supreme Court, that both the Supreme Court and no lower court can stop an executive from universally violating those holdings by this Court.”
“On the day after it goes into effect — it’s just a very practical question of how it’s going to work,” asked Justice Brett Kavanaugh. “What do hospitals do with a newborn? What do states do with a newborn?” when it comes to determining citizenship on the birth certificate.
“I don’t think they do anything different,” replied Sauer. “What the executive order says in Section Two is that federal officials do not accept documents that have the wrong designation of citizenship from people who are subject to the executive order.”
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“How are they going to know that?” asked Kavanaugh, shaking his head.
The case is Trump v. Barbara (25-365), a pseudonym for a Honduran citizen who fears for her and her family’s safety. Her child was born in the U.S. in October, months after she joined the lawsuit as the named plaintiff.
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