🎧 Justices skeptical of Trump attempt to end birthright citizenship

Protestors outside the court on Wednesday -image courtesy CSPAN

WASHINGTON — The U.S. Supreme Court Wednesday seemed poised to reject the Trump administration’s attempt to redefine the constitutional right to birthright citizenship, and instead uphold the country’s long understanding of citizenship by birth on American soil.

Click below to listen to a replay of the oral argument.

If a majority of Supreme Court justices strikes down President Donald Trump’s executive order to end birthright citizenship for children born to parents without legal status or temporary immigration statuses like visas, it will be the second recent major blow to the president via the high court. Earlier this year, a majority of justices struck down his use of sweeping tariffs.

Trump, who signed the executive order aiming to end birthright citizenship as one of his first acts after his inauguration in 2025, came to the courtroom to hear the oral arguments, a first for a sitting president.

‘Quirky’ administration argument

A majority of the justices during Wednesday’s oral arguments were skeptical of Solicitor General D. John Sauer’s arguments that the citizenship clause of the Constitution’s 14th Amendment was only intended to grant citizenship to the children of newly freed African American slaves, not immigrants.

Chief Justice John Roberts called one of Sauer’s key arguments “quirky,” and questioned how it could be applied to an entire class of immigrants without legal status.

Sauer argued that the children born to parents without legal status or temporary visitors are not “subject to the jurisdiction of the United States” and are instead subject to the laws of their home country. He cited carve outs in birthright citizenship, such as the children born to foreign diplomats.

“You expand it to a whole class of illegal aliens,” Roberts said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”

Along with Roberts, the liberal wing of the court and conservative Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett also did not seem swayed by Sauer’s argument.

Gorsuch asked Sauer if, under the Trump administration’s interpretation of the 14th Amendment, Native Americans would be considered birthright citizens “under your test.”

“Uh, I think so,” Sauer said.

Indigenous people were granted U.S. citizenship by Congress in 1924, but were not granted citizenship under the 14th Amendment because those children were born to parents who were citizens of tribal governments.

Sauer also contended the 1898 Supreme Court ruling that upheld citizenship based on birth on American soil, United States v. Wong Kim Ark, was wrongly decided.

He argued that the Wong Kim Ark case did not take into consideration “sojourn travelers,” who are temporary visitors in the U.S. and give birth.

Sauer also said the Trump administration was not looking for the justices to overturn that case.

ACLU arguments

Liberal justice Elena Kagan said that Sauer’s argument to the court was an effort to create a “revisionist history” of the Wong Kim Ark case.

“Everyone took Wong Kim Ark to say that, as a result of that, birthright citizenship was the rule,” she said. “And I think everybody has believed that for a long, long time.”

American Civil Liberties Union lead attorney Cecillia Wang said during oral arguments that when the federal government tried to strip Ark of his citizenship, “largely on the same grounds (the Trump administration) raised today,” the Supreme Court rejected those efforts.

“This Court held that the 14th Amendment embodies the English common law rule (that) virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen,” said Wang, who is the daughter of Taiwanese immigrants.

Her parents were in the U.S. on student visas when she was born in Oregon, meaning that if Trump’s executive order were in effect at that time, she would have been denied U.S. citizenship.

“Ask any American what our citizenship rule is and they’ll tell you, everyone born here is a citizen alike,” Wang said. “That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”

The text of the clause is: “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.”

Experts have warned that if the constitutional right to birthright citizenship were struck down, it would effectively create a class of millions of stateless people, leaving them without a country to call home.

If the high court determines that Trump violated the Constitution with his executive order, it would be a major block to the president’s goal in defining who is American, as Trump has aimed to reshape the country’s racial and ethnic makeup through limits to migration and an aggressive immigration campaign of mass deportations.

A decision from the high court on the case, Trump v. Barbara, is likely not going to come until the end of the court term, in late June or early July. If the court decides to uphold the executive order, it would go into effect 30 days after the ruling.

New world, old Constitution

Sauer argued that birthright citizenship should not be applied to children of temporary visitors, such as foreigners who partake in what opponents call “birth tourism.”

Roberts asked Sauer how much of an issue birth tourism is – the idea that foreign visitors specifically travel to the U.S. for the purpose of giving birth and obtaining citizenship for their soon-to-be born children.

“No one knows for sure,” Sauer said, citing media reports that many Chinese tourists travel to the U.S. and give birth.

However, China does not allow its citizens to have dual citizenship.

Roberts seemed skeptical that birth tourism should be considered in Sauer’s legal arguments for the purpose of restricting birthright citizenship. He told Sauer that birth tourism “wasn’t an issue in the 19th century.”

“We’re in a new world now,” Sauer said. “Where 8 billion people are one plane ride away from having a child as a U.S. citizen.”

But Roberts shot back, “Well, it’s a new world, it’s the same Constitution.”

Other countries

Sauer also argued that the U.S. should fall in line with the citizenship laws of other countries.

“Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations,” he said. “It demeans the priceless and profound gift of American citizenship.”

Kavanaugh questioned why the U.S. should worry about the citizenship requirements of other countries.

“Obviously we try to interpret American law with American precedent based on American history,” Kavanaugh said. “I’m not seeing the relevance as a legal, constitutional interpretive matter necessarily, although I understand it’s a very good point.”

Shortly after oral arguments ended, Trump took to his social media site, Truth Social, where he falsely said the U.S. is the only country to have birthright citizenship. Argentina, Brazil, Canada and Mexico are among several countries that have birthright citizenship.

“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” he wrote.

Trump left Wednesday’s oral arguments after Sauer was finished presenting his argument to the justices, and about a few minutes into arguments from the ACLU’s Wang, according to White House pool reports. Oral arguments lasted for about two-and-a-half hours.

Earlier decision

This is the second time the Trump administration has brought a birthright citizenship case before the justices.

Last year, after federal judges in Maryland, Massachusetts, New Hampshire and Washington state struck down the president’s executive order, the Trump administration appealed to the Supreme Court, but asked the justices to consider the lower courts’ use of universal injunctions, rather than the merits of birthright citizenship.

The justices took up the case, and in a 6-3 vote divided along ideological lines, the use of universal injunctions was curtailed by the conservative wing of the high court.

After the ruling, immigration advocates and the ACLU filed class action suits, which were successful in blocking the birthright citizenship executive order. The suits argued that future children born in the United States without gaining citizenship constituted a nationwide class.

“If you credit the government’s theory, the citizenship of millions of Americans past, present and future could be called into question,” Wang said.

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WASHINGTON — The U.S. Supreme Court will hear oral arguments Wednesday in a case that could reshape the understanding of who is American by birth.

The case, Trump v. Barbara, challenges President Donald Trump’s executive order that redefines citizenship to exclude children born to parents who either do not have legal status, or hold temporary legal visas.

It has the potential to upend the guarantee of birthright citizenship in effect since a Supreme Court decision in 1898 that extended citizenship to virtually anyone born in the United States. There is a small carveout for children born to foreign diplomats.

The Trump administration petitioned the high court in December after multiple lower courts struck down the executive order, finding it violated the Constitution.

Birthright citizenship has been a longstanding core principle in the United States, where nearly any child — regardless of their parents’ immigration status — born on U.S. soil is automatically granted citizenship. Experts have warned that if birthright citizenship were struck down, it would effectively create a class of millions of stateless people.

But what was once a fringe legal theory has been pushed into the mainstream by the president and his far-right allies, who have sought to redefine who is American.

They argue the citizenship clause of the Constitution’s 14th Amendment, which is the basis for birthright citizenship, was meant to apply to newly freed African American slaves after the Civil War, not to children of immigrants. Most legal scholars and historians disagree with that interpretation.

The text of the clause is: “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.”

After oral arguments are heard on Wednesday, a decision from the Supreme Court is expected before the court’s summer recess begins at the end of the term in late June or early July.

19th-century case

This is not the first time the Trump administration has brought a birthright citizenship case before the Supreme Court.

The justices took up the case, and in a 6-3 vote divided along ideological lines, the use of universal injunctions was curtailed by the conservative wing of the high court.

After the ruling, immigration advocates and the American Civil Liberties Union filed class action suits, which were successful in blocking the birthright citizenship executive order. The suits argued that future children born in the United States without gaining citizenship constituted a nationwide class.

Cody Wofsy, of the ACLU, is a co-lead attorney in the case and told reporters last week that the Supreme Court already decided the issue of birthright citizenship in 1898.

“The constitutional text is clear, the precedent is clear and the history is clear,” Wofsy said.

The 1898 case, United States vs. Wong Kim Ark, settled the idea that automatic citizenship was granted to children born on U.S. soil, Wofsy said.

Ark, born in San Francisco, was denied entry back into the country after visiting China. Officials at the time argued that because his parents were Chinese citizens in the United States on temporary visas at the time of his birth, and therefore were not “subject to the jurisdiction” of the U.S., he was not a citizen. He took the issue to the high court and in 1898 the Supreme Court affirmed that children born in the United States were guaranteed citizenship.

Arguing on behalf of the Trump administration, Solicitor General D. John Sauer has said that the 1898 case is being misinterpreted, and that it meant to only include children born to parents who were granted authorization to be in the U.S.

“Illegal aliens are not ‘permitted by the United States to reside here,’ and thus their children are excluded from citizenship,” Sauer argued in briefs.

However, Trump’s executive order would also deny citizenship to children born to parents on temporary visas, such as for work or school.

Sauer also relies on an 1884 Supreme Court decision that denied citizenship to John Elk, a Native American man born in Nebraska, who was no longer a member of his tribe and tried to become a naturalized U.S. citizen in order to vote.

Elk was denied citizenship, because he was not “subject to the jurisdiction of” the U.S. because of his “political allegiance” to his tribe, even though he had renounced his tribal citizenship. Congress extended citizenship to all Native Americans in 1924.

Sauer cites the Elk case in his argument that the citizenship clause does not apply to children born to immigrants on temporary visas or undocumented people and “only to those born of parents with primary allegiance to the United States.” The administration is not arguing that Indigenous people should be denied birthright citizenship.

Torey Dolan, an assistant professor at the University of Wisconsin Law School, said Sauer’s argument wrongly conflates Indigenous people with migrants, despite a long U.S. legal tradition of treating them distinctly.

“American law has always found a way to distinguish Indigenous people from non-Indigenous people in a way that has never been applied to immigrants,” Dolan, an enrolled citizen of the Choctaw Nation of Oklahoma, said.

She noted that in the Declaration of Independence, which includes the grievances of the colonists, one complaint was how British King George III refused to allow for migration into the colonies in order to occupy land stolen from Indigenous tribes.

“This conflation of immigrants and Indigenous people, for the sake of this argument, I think, is pretty egregious, and I think it really obfuscates American history and its colonial history in particular,” she said.

‘Pure chaos’

Legal advocates challenging the executive order are confident they will win at the Supreme Court.

“President Trump’s executive order is plainly unconstitutional and unlawful, and we’re confident that the Supreme Court will reaffirm existing legal precedent and strike down this executive order once and for all,” Hannah Steinberg, a staff attorney for the ACLU’s Immigrants’ Rights Project, told reporters.

In briefs, the ACLU has also argued that if Trump’s executive order were to go into effect, it would create a stateless class of people. The Migration Policy Institute, a think tank that studies migration, found that the end of birthright citizenship would increase the unauthorized population by an additional 2.7 million by 2045.

Trump’s push to end birthright citizenship is part of the administration’s broader goal to curtail migration to the U.S., arguing that birthright citizenship is an incentive for unauthorized immigration.

But the idea that people migrate to the U.S. so their children can be born as citizens is not supported by research, Julia Gelatt, the associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, said.

“People move mainly for opportunity for themselves and their children and also for safety,” she said. “There are many unauthorized immigrants who have come to the United States with their own children, who were born in another country, who won’t be U.S. citizens, and they still come.”

“I don’t think there’s any evidence that birthright citizenship specifically is an independent pull factor. It’s more the safety, the rule of law and the earnings potential that people see in the United States, and the opportunity to reunite with other families is another major factor,” she continued.

Ama S. Frimpong, the legal director for the immigrant rights group We Are CASA, told reporters that there are practical questions to how Trump’s executive order would even work.

“What happens in a household in which there are older children who are born here and now, suddenly they have a new baby who’s born tomorrow, and that baby is not going to have the same rights that their siblings have?” she asked. “Is a baby going to be subject to detention and deportation by their very own government that is meant to protect them because they were born here?”

That reality of birthright citizenship being stripped, Frimpong said, would be “just pure chaos.”

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