The longstanding policy that babies born in the US are American citizens will be considered by the US supreme court on Wednesday as Donald Trump seeks to reinstate a key immigration policy of his second administration.
If birthright citizenship is overturned, hundreds of thousands of children born annually would be blocked from US citizenship.
Trump arrived at the supreme court to watch oral arguments on Wednesday morning. He is believed to be the first sitting president to sit in on a supreme court hearing. He is seated in the public gallery.
D John Sauer, the solicitor general arguing on behalf of the Trump administration, quickly jumped into the concept of “domicile”, arguing those who are here unlawfully or temporarily do not have “domicile” in the US or allegiance to the country, unlike the formerly enslaved people the 14th amendment’s citizenship clause applied to.
The clause does not include the word domicile; Sauer argues the text of the clause “presupposes domicile”.
“Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations,” Sauer said in his opening statement. “It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules. It has spawned a sprawling industry of birth tourism.”
The justices, including conservatives, asked probing questions about the history of immigration laws, the concept of domicile and the limits of the government’s argument. The chief justice, John Roberts, at one point referred to part of the government’s argument as “very quirky”. Elena Kagan, a liberal justice, said the government was using “pretty obscure sources” to arrive at part of its case.
Roberts asked about the prevalence of Sauer’s claims of “birth tourism”, later asking Sauer, “you do agree that that has no impact on the legal analysis before us?” Sauer said he believes it shows that the interpretation of the citizenship clause has been a “mess” and that we’re in a “new world” with migration compared to the 19th century, when the 14th amendment was adopted.
“Well, it’s a new world, but it’s the same constitution,” Roberts responded.
Outside the court, hundreds demonstrated in favor of birthright citizenship and against the president’s order.
On his first day in office, Trump issued an executive order that sought to undo birthright citizenship, overriding the US constitution – or, as his administration has argued, interpret the constitution correctly, in defiance of supreme court precedent.
If the court rules against Trump, it would be a major hit for one of his biggest policy changes, coming after the court struck down his tariffs, another of his signature policies. It would likely anger the president, who earlier this week claimed that other countries are “selling citizenships” to the US and attacked the federal court system as “stupid” on Truth Social.
Democratic state attorneys general and advocacy groups immediately filed lawsuits against the order, arguing it extends beyond Trump’s authority. The supreme court will hear Trump v Barbara, a class action brought by parents of children who would be affected by the change.
“This Order seeks to strip away the ‘priceless treasure’ of citizenship … threatening them with a lifetime of exclusion from society and fear of deportation from the only country they have ever known,” the American Civil Liberties Union (ACLU) wrote in its initial filing of the class action case in federal court in New Hampshire last year. “But that is illegal. The Constitution and Congress – not President Trump – dictate who is entitled to full membership in American society.”
The Democratic attorneys general of 24 states said Wednesday that Trump’s order violates the constitution and federal statutes, and they are grateful for injunctions they obtained across the country to prevent the order from taking effect so far.
“We are optimistic the U.S. Supreme Court will agree with every judge to consider this executive order on the merits and hold that it violates this fundamental constitutional right,” the attorneys general said in a collective statement.
The 14th amendment, adopted in 1868 during the reconstruction era after the US civil war to codify the rights of Black Americans and reverse the Dred Scott decision, confers citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof”.
The Trump administration argues the phrase “subject to the jurisdiction thereof” means babies born in the US to people who are not lawfully present in the country are not citizens. The executive order says this includes when neither of a person’s parents were US citizens or lawful permanent residents, or if a parent has legal, but temporary, status.
The order would apply to those born in the US after 19 February 2025. The Migration Policy Institute estimated this change would increase the population of unauthorized immigrants significantly – “by an additional 2.7 million by 2045 and by 5.4 million by 2075”, a projection released last May said, based on an average of about 255,000 children born under these parameters each year.
One named plaintiff in the case is a Honduran citizen with a pending asylum application in the US who was expecting her fourth child. Another is a citizen of Taiwan who has been in the US for 12 years whose fourth child would be affected by the order; her three other children are US citizens. A third is a father, a Brazilian citizen living in the US for the past five years, whose first child was born in March 2025, after the order would be in place if it’s legally upheld.
“She fears her child will be unjustly denied the security, rights, and opportunities that come with US citizenship, leaving their future in doubt,” the lawsuit said of the person with the pseudonym Barbara.
The ACLU argues ending birthright citizenship would create “a permanent subclass of people born in the United States who are denied their rights as American citizens,” noting the case’s high stakes, “whether America will preserve the country’s tradition from its founding and constitutional promise that every child born here belongs here.”
The president cannot unilaterally overturn a constitutional amendment; that requires congressional action. But the administration is arguing not that they’re overturning the amendment, but rather interpreting it according to its intended meaning. The Trump administration wants the supreme court to reinterpret the amendment and allow the order to be enforced, overriding more than 125 years of legal precedent.
The landmark decision on birthright citizenship, United States v Wong Kim Ark, made clear that a child born to parents of Chinese descent who had permanent “domicile” in the US would be a US citizen at the time of birth under the 14th amendment. The Trump administration argues “domicile”, meaning a permanent residence, is a critical part of the interpretation, despite the word not appearing in the amendment itself.
“Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!” the president wrote on Truth Social last year.
The administration is relying in part on the legal arguments of a white supremacist from the late 1800s, the Washington Post reported. John Eastman, a lawyer who worked with Trump to try to overturn the 2020 election results, is also a key proponent of the effort to overturn birthright citizenship, Politico reported.
While most conservative legal scholars believe the 14th amendment has been interpreted correctly, more in recent years have come to believe Trump could win. Two legal scholars wrote in the New York Times last year that “the justices will find that the case for Mr Trump’s order is stronger than his critics realize.”
