Trump Is Likely to Lose on Birthright

And the Fouteenth Amendment is not the only avenue the justices have to strike down an illegal executive order.

Although it is always dangerous to predict the outcome of a case based on the oral arguments, it seems clear that the Supreme Court will strike down President Trump’s executive order restricting birthright citizenship. The reality is that this is the rare easy case to come before the court, with every single lower federal court judge having found Trump’s action unconstitutional. The oral arguments suggested a number of paths the Supreme Court might take, but it appears that even a conservative court that has repeatedly sided with Trump is very likely to rule against him here.

The case, Trump v. Barbara, involves a challenge to Trump’s executive order issued on January 20, 2025, that provides that only those born to citizens or those with green cards are United States citizens. In other words, under the executive order a baby is not a citizen if born to an undocumented immigrant or to a person in the United States on a visa.

Photo by Stephen Talas on Unsplash

The issue before the Supreme Court is whether this violates the first sentence of the Fourteenth Amendment, which says: “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.”

History supports the conclusion urged by the ACLU’s lawyer, Cecillia Wang, during oral arguments: With only very limited exceptions, everyone born in the United States is a citizen. The United States followed English law that all born in the country were citizens of the country -- until the Supreme Court’s tragic 1857 Dred Scott v. Sandford decision, which held that enslaved individuals were property of their owners and that they were not U.S. citizens, even if they had been born in the United States. The first sentence of the Fourteenth Amendment unquestionably overruled Dred Scott.

The oral arguments Wednesday especially focused on the meaning of the phrase “subject to the jurisdiction thereof” and the significance of the Supreme Court’s 1898 decision in United States v. Wong Kim Ark.

Solicitor General John Sauer argued in his brief that the “Clause extends citizenship only to those who are ‘completely subject’ to the United States’ ‘political jurisdiction’ — in other words, to people who owe ‘direct and immediate allegiance’ to the nation and may claim its protection.” He argued that this includes only children born to citizens, to freed enslaved individuals, and to children of non-citizens who “have a permanent domicile and residence in the United States.” But, he claimed, children born to those who are not lawfully present or are in the country on visas are not citizens because “[s]uch children do not owe primary allegiance to the United States by virtue of domicile, for illegal aliens lack the legal capacity to establish domicile here.”

Even conservative justices, including Neil M. Gorsuch, stressed that is not what the Fourteenth Amendment says; nowhere does it mention “domicile.” Several justices stressed that the phrase “subject to the jurisdiction thereof” was meant to exclude from automatic citizenship only to children born to foreign diplomats or hostile invaders, who are not subject to United States legal authority because of their diplomatic and combatant immunity. Children born in the United States are subject to its jurisdiction in every way. The ACLU in its brief quoted Sen. Jacob Howard, who introduced the language into Congress and said it “is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”

Understandably, much of the discussion at oral argument focused on the Wong Kim Ark decision. Wong Kim Ark was born in 1873 to Chinese parents who were not citizens. After visiting China, he was denied reentry to the United States because the government contended he was not a citizen. In a 6-2 decision, the Supreme Court ruled in his favor and held that he was a U.S. citizen because he was born in this country. Toward the end of the oral arguments Wednesday, Justice Brett Kavanaugh suggested that the court could decide the case writing a brief opinion saying that the matter was controlled by Wong Kim Ark.

Sauer argued that Wong Kim Ark involved a child of non-citizens with a lawful “permanent domicile and residence” here. Both Chief Justice John G. Roberts Jr. and Justice Elena Kagan pointed out that the court’s opinion used the word “domicile” multiple times.

But as Wang repeatedly pointed out, the Supreme Court in Wong Kim Ark was explicit that all born in the United States are citizens except for the “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.” In its brief, the ACLU wrote: “There is no basis for the government’s proposed parental domicile rule. The English common law concededly forecloses it. American law rejected it. The text of the Clause rebuts it. And the Framers’ design cannot be squared with it.”

It is possible that the Supreme Court will simply say that the Trump executive order is unconstitutional based on the history of citizenship in this country, the text of the Fourteenth Amendment, and the precedent of United States v. Wong Kim Ark. But the oral arguments suggested other possible paths the court could use to strike down the executive order.

One alternative would be for the court to hold that the executive order violates a federal statute, adopted in 1940 and reenacted in 1952, which copies the language of the Fourteenth Amendment 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.” When Congress adopted this law, the understanding was that all born in the United States are citizens except for children of soldiers of an invading army or foreign diplomats. Kavanaugh suggested that the court could resolve the case by declaring that the statute meant to codify that understanding. Wang readily agreed.

Another path for the court to rule against the Trump executive order, though one that received much less attention during the oral arguments, would be for it to hold that the president lacks the power to change who is deemed a citizen by an executive order. Justice Sonia Sotomayor expressed great concern that if the president has this power and the court upholds Trump’s interpretation of the Fourteenth Amendment, then citizenship of millions of people could be in danger. Sauer replied that the Trump executive order would apply only prospectively, but he did not deny that the implication of his position was that Trump or a future president could revoke citizenship of those who previously were born in this country to those who were undocumented or in the country on visas.

In the end, the Trump executive order represents a radical change in the law that would have devastating human consequences. At least since 1898, when United States v. Wong Kim Ark was decided, until January 20, 2025, it always was understood that everyone born in the United States is a citizen. No president other than Trump ever questioned this.

The executive order would deny citizenship to approximately 250,000 children born in the United States each year. It would leave most of these babies without citizenship in any country.

I predict that the Supreme Court in a 7-2 decision, with only Justices Clarence Thomas and Samuel Alito dissenting, strikes down the Trump executive order on birthright citizenship.

Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law.

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