Ending Birthright Citizenship
The Constitution is clear: The J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School Gerald Neuman ’80: “Those born on American soil, even to undocumented parents, are citizens of the United States. Neuman, an expert in immigration and nationality law, affirms both history and Supreme Court precedent confirm an intent to grant citizenship to anyone born in the U.S. — regardless of their parents’ legal status.” Can birthright citizenship be changed?
Moreover, he adds, “The president of the United States has no authority to change citizenship rules at all.”
“Trump urges Supreme Court to decide whether to end birthright citizenship”
SCOTUSblog Amy Howe
The Trump administration on Friday asked the Supreme Court to weigh in on the legality of President Donald Trump’s executive order seeking to end the guarantee of citizenship to virtually everyone born in the United States. In a pair of nearly identical filings, U.S. Solicitor General D. John Sauer urged the justices to review a ruling by a federal appeals court holding that the order violates the Constitution, as well as a similar decision by a federal judge in New Hampshire. Sauer told the court that “the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences.”
At issue in the case is the meaning of a provision of the 14th Amendment to the Constitution, which provides that “[a]ll 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 amendment was adopted to overrule the Supreme Court’s 1857 ruling in Dred Scott v. Sandford, holding that a Black person whose ancestors were brought to the United States and sold as enslaved persons was not entitled to any protection from the federal courts because he was not a U.S. citizen.
Four decades later, the Supreme Court considered the case of Wong Kim Ark, who was born in San Francisco to parents of Chinese descent. Writing for the six-justice majority, Justice Horace Gray explained that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”
The executive order that Trump signed on Jan. 20 would end birthright citizenship. Fulfilling a campaign pledge, the order provided that people born in the United States after Feb. 19, 2025, would not be entitled to U.S. citizenship if their parents are in the country illegally or temporarily.
A flurry of legal challenges followed, and federal judges around the country concluded that Trump’s order was likely unconstitutional. One such judge, Senior U.S. District Judge John Coughenour, barred the Trump administration from enforcing the executive order anywhere in the country – an order sometimes known as a “nationwide” or “universal” injunction – and called birthright citizenship “a fundamental constitutional right.”
Sauer went to the Supreme Court in March, asking the justices to weigh in not on the legality of Trump’s order seeking to end birthright citizenship, but instead on whether federal judges like Coughenour have the power to issue universal injunctions. In a 6-3 decision issued on June 27, the court held that they do not. Instead, the court explained, a federal court can only provide “complete relief between the parties” in a particular case.
In one of the challenges, Barbara v. Trump, U.S. District Judge Joseph Laplante of New Hampshire on July 10 issued a preliminary injunction that barred the Trump administration from enforcing the executive order against a class of babies born after Feb. 20, 2025, who are or would be denied U.S. citizenship by Trump’s order. Laplante concluded “that the Executive Order likely ‘contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.’”
And on July 23, a divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that the executive order “is invalid because it contradicts the plain language of the Fourteenth Amendment’s grant of citizenship to ‘all persons born in the United States and subject to the jurisdiction thereof.’”
In several recent filings seeking to push back the deadline for the government’s filings in the lower courts, the Trump administration had indicated that it planned to ask the Supreme Court to take up the birthright citizenship question during its 2025-26 term. Specifically, lawyers for the Department of Justice wrote on Aug. 19 that Sauer “plans to seek” review “expeditiously,” “but he has not yet determined which case or combination of cases to take to the Court.”
On Friday night, it filed two nearly identical petitions, asking the court to review the 9th Circuit’s decision and to take up Barbara v. Trump without waiting for the U.S. Court of Appeals for the 1st Circuit to weigh in.
Sauer contended that the 14th Amendment’s citizenship clause “was adopted to grant citizenship to newly freed slaves and their children—not to the children of temporary visitors or illegal aliens.” Such an interpretation, he wrote, is supported by “[t]he plain text of the Clause, its original understanding and history, and this Court’s cases.”
And the issue, Sauer continued, is a critical one worthy of the Supreme Court’s attention. “The government,” he said, “has a compelling interest in ensuring that American citizenship—the privilege that allows us to choose our political leaders—is granted only to those who are lawfully entitled to it. The lower court’s decisions invalidated a policy of prime importance to the President and his Administration in a manner that undermines our border security.”
Sauer asked the justices to rule on the legality of the executive order during the 2025-26 term, which is scheduled to begin on Oct. 6. He did not ask the court to fast-track their consideration of the petitions for review or, if review is granted, the cases themselves. If the court opts to take the cases but does not expedite them, it likely would hear oral arguments sometime next year, with a decision to follow by late June or early July.
If the justices do take up the birthright citizenship, it would add another blockbuster case involving the Trump administration to a term that already includes a battle over the president’s power to impose sweeping tariffs and his power to fire the heads of independent agencies.
SCOTUSblog Amy Howe
The Roberts SCOTUS has a demonstrated indifference, if not hostility, to history and stare decisis, and has ruled with only one exception* that the president is the unitary executive and free to do what he wants unless impeached and convicted.
*the only exception so far is to block Trump’s firing of a Fed board member, and that block is temporary
Birthright citizenship is fine with me. I would rather reform family chain migration policy, which is clearly not a constitutional right. If you think the concept of “anchor baby” is real and often an abuse of our immigration system (I do on both counts), the least culpable person is the baby. Still the whole area of this feels like a distinctly secondary concern. More important stuff to work on.
The topic is “birth right. However with regard to overall immigration?
“Leaders of goodwill can both support a fix to the broken immigration system and the due process rights of immigrants. There’s no contradiction—indeed, both ensure we respect the rule of law.
The wanton cruelty America is currently witnessing is not an actual solution. We can fix our broken system without deporting people who are here legally simply because they say things we disagree with or railroading people into foreign gulags who have legitimate refugee claims. A long-dormant wartime law has been inappropriately and unconstitutionally resurrected to illegally disappear people to a notorious foreign prison without any due process, apparently based at times on little more than misinterpreted tattoos and clothing choices.2 None of this addresses what ails our immigration system—but the harm it does to the people affected, to the larger community, and to the rule of law is incalculable. As J. Harvie Wilkinson, a conservative 4th Circuit judge, observed in a recent judicial ruling, ‘The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.’
Americans deserve a secure immigration system that stems illegal border flows and fosters economic growth and prosperity. There is a big difference between acknowledging that the current system is broken and offering solutions versus conducting extrajudicial terror tactics that the current administration has unleashed on migrants who are here legally. That is a betrayal of American values and will make us less safe and less prosperous.
Congress can help right the ship both by holding the executive branch to account and by making our laws better for the American people. Congress should conduct robust oversight of the executive branch’s reckless and indiscriminate actions in carrying out immigration policy— including the extralegal use of wartime authorities to disappear people without due process or accountability.
Congress must also author new legislation to make our immigration system work better. Creating new immigration policies that truly serve everyone in our communities is not just an essential task—it’s a strategic necessity. A new immigration system must ensure that our laws are followed by—and administered fairly for—everyone who enters the country. It must secure our borders and curtail illegal migration while providing more legal options for people to come here the right way.”
A New Immigration System To Safeguard America’s Security, Expand Economic Growth, and Make Us Stronger
There are issues with immigration and this president has made them worse.