Birthright Citizenship in the Balance
The Supreme Court will soon decide whether President Donald Trump’s executive order on “Protecting the Meaning and Value of American Citizenship” can go into effect. That order purports to limit birthright citizenship to children born to American citizens or lawful permanent residents, and to impose this limit only on children born after the order. Trump said during the 2024 campaign that immigrants were “poisoning the blood of our country.”
The order has been challenged by a class action lawsuit representing people whose children were denied citizenship by it. The Supreme Court heard oral argument on Wednesday. The justices spent almost all of their time considering whether the 14th Amendment to the U.S. Constitution establishes birthright citizenship for all children born in the United States, absent very specific exceptions not at issue here. The 14th Amendment says 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 14th Amendment was ratified in 1868, just three years after the Civil War ended. The bloodiest war in American history happened after the Southern states seceded to protect slavery and white supremacy. In its “Declaration of Causes” of Feb. 2, 1861, for example, Texas held among its “undeniable truths” that “the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity.” Among its most significant effects, the 14th Amendment overruled the infamous Dred Scott decision, which had held that Black people could not be citizens. The amendment also promised individuals of all races “equal protection of the laws.”
The traditional understanding of the 14th Amendment has been that children born in the United States are citizens. This has been true even when the parents have been enemies of the United States. For example, amid Japanese internment during World War II, some camp inmates, infuriated by their treatment, renounced American citizenship. Other inmates were Japanese residents of Peru deported to the United States whom the U.S. Immigration and Naturalization Service classified as having entered the country illegally. Children born to these parents were recognized as citizens simply because they were born in the U.S.
The Trump administration argues that this traditional understanding of the 14th Amendment is mistaken. The administration claims that the phrase “subject to the jurisdiction thereof” clarifies that the amendment withholds birthright citizenship from children whose parents were in the country illegally. This is so, the administration contends, because you must owe “direct and immediate allegiance” to America to be “subject to” its jurisdiction. Those without legal immigration status or citizenship could not demonstrate that level of allegiance.
With Trump present at oral argument, even justices he appointed were skeptical of this position. Perhaps most memorably, Justice Amy Coney Barrett raised the uncomfortable fact that some enslaved Black people before the Civil War entered America illegally because they were brought to the country in violation of a ban on the slave trade. These individuals did not intend to remain in America and believed their allegiance remained to their country of origin. Yet no one argued that the 14th Amendment did not make those enslaved people’s children citizens by virtue of being born in America.
On the off chance that the Supreme Court upholds the executive order, it will invite serious mischief. It would permit the president to unilaterally rewrite immigration law without any buy-in from Congress. And it would raise the possibility that Trump could apply his rule retroactively, meaning that millions of Americans would lose their citizenship if they were born to parents present in the country illegally at the time of birth.