In a stunning rebuke to Donald Trump’s aggressive anti-immigrant agenda, the US supreme court ruled against the president’s highly contentious attempt to end the right to US citizenship for children born in the United States.
The justices ruled that the Trump administration violated a provision of the 14th amendment, which was affirmed by the supreme court 128 years ago.
“Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause,” the ruling reads, in a rebuke to the administration’s argument that children born to undocumented immigrants and temporary foreign visitors were ineligible for citizenship.
Trump issued an executive order on the first day of his second term in office that sought to undo birthright citizenship, which swiftly drew lawsuits, including from the Democratic state attorneys general and the American Civil Liberties Union. The ACLU argued in front of the court on the case during oral arguments in April for Trump v Barbara, a class-action challenge to the order, brought by parents of children who would be affected by the change.
The Trump administration argued that the landmark decision on birthright citizenship – United States v Wong Kim Ark – relied on parents having permanent “domicile” in the US. However, the term is not included in the 14th amendment.
Here’s what to know:
What is birthright citizenship?
The legal principle of jus soli, or “right of the soil”, allows nearly everyone born on US soil to become a US citizen.
Dozens of countries also have a right to citizenship based on place of birth, including Canada, Mexico, Brazil and Argentina.
By contrast, many countries extend citizenship under the principle of jus sanguinis, or “right of blood”, which is determined by the nationality of a child’s parents regardless of the location of birth.
What is the legal basis for birthright citizenship in the US?
The concept of jus soli comes from English common law, which held centuries ago that people born in England were natural subjects.
But unrestricted birthright citizenship in the US that includes people of color – not just white Americans – derives from the US constitution. In 1857, the supreme court ruled in its Dred Scott decision that Black descendants of enslaved people were not US citizens, but “a separate class of persons”.
To right this injustice, just over a decade later during the Reconstruction era following the US civil war, the US ratified the 14th amendment in 1868 to codify the rights of Black Americans. It established 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”.
Known as the citizenship clause, this phrase – alongside a number of related statutes and regulations – establishes the modern basis for birthright citizenship.
What have US courts historically said about birthright citizenship for the children of immigrants?
Even as the 14th amendment was ratified, Americans were starting to turn against immigrants in the US, especially Chinese workers. Soon, Congress had enacted legislation to heavily restrict further Chinese migration and make life difficult for those already stateside.
Wong Kim Ark, a young man born in San Francisco to immigrant parents, went to China to see his family. When he tried to return home to the US, he was not allowed into the country based on the allegation that he was not a US citizen.
But the supreme court saw the situation differently. In an 1898 precedential decision that has withstood the test of time, the justices ruled in favor of Wong Kim Ark’s US citizenship claim even though his parents were Chinese immigrants unable to naturalize.
Who is not a US citizen, even if they are born in the US?
There are exceedingly rare exceptions to the principle of jus soli, where people born in the US are not automatically granted US citizenship.
Until the enactment of a law in 1924, Indigenous peoples born in the US were excluded.
In 2021, the supreme court decided that people born in American Samoa’s unincorporated territories are not automatically guaranteed birthright citizenship, unless Congress enacts legislation. And the children of foreign diplomats or of enemy occupiers also lack a right to US citizenship by birth.
What was the Trump administration’s argument for ending birthright citizenship?
Trump’s executive order sought to redefine the meaning of the 14th amendment based on the claim that children born to non-citizen parents who are either unlawfully in the country or who possess temporary legal status, such as tourists or foreign students, are not “subject to the jurisdiction” of the US and therefore ineligible for birthright citizenship.
The order sought to restrict citizenship to children of current American citizens or other lawful permanent residents that have established “domicile” in the United States.
Trump claimed birthright citizenship was a “scam” that “ripped off” taxpayers by allowing undocumented migrants to take advantage of the benefits of the US welfare state. However, during the oral arguments in Trump v Barbara, the government’s lawyer conceded that “no one knows for sure” how significant a problem so-called “birth tourism” actually is.
The Center for Immigration Studies, an anti-immigration thinktank, said that there are between 20,000 to 26,000 births by women on tourist visas annually. That is less than 1% of all babies born in the US each year.
What did the supreme court majority say in its ruling upholding birthright citizenship?
Chief Justice John Roberts delivered the opinion. He was joined by liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, and the conservative justice Amy Coney Barrett. Conservative justice Brett Kavanaugh concurred with the judgment, but dissented in part.
The majority opinion walks through the plain meanings of citizenship, from English common law in to slavery and then emancipation, and then in to efforts to undermine citizenship, including the Chinese exclusion act.
Roberts wrote that the “odious” decision in Dred Scott denied citizenship to Black people, arguing then that it was “blood, not soil” that decided citizenship. That was overturned via the 14th amendment, which the court affirmed in its decision to uphold birthright citizenship.
“Citizenship, then and now, was the right to have rights – to freely participate in our political community,” the majority opinion reads. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”
In her concurring opinion, Jackson wrote that the 14th amendment’s “universalist aims should forever be the death knell for this kind of claim – one that seeks to make bloodline the marker of birthright”.
“The America that was reborn from the rubble of the Civil War simply does not countenance that inequitable result,” she wrote. “Thankfully, a majority of the Court remembered this today, and has dutifully preserved the most basic animating principle of our Nation’s founding – that all human beings are created equal – once more.”
What did the dissenting justices say?
The conservative justices Clarence Thomas, Samuel Alito and Neil Gorsuch filed dissenting opinions. The court’s writings in the ruling span 194 pages, nearly 90 of which were written by Thomas in dissent, his longest in his tenure on the court.
Thomas writes that Black people were entitled to citizenship because they were Americans with “no other homeland” or allegiance to other nations. “The same could not be said for the children of foreign temporary visitors,” he wrote. “Foreign temporary visitors were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war.”
Kavanaugh wrote in a partial concurrence that he does not believe Trump’s executive order violates the 14th amendment, but that it does violate a federal statute. Congress could, he wrote, amend the federal statute or create new legislation to establish exceptions to birthright citizenship for children born to parents who do not have permanent legal status in the country.
Alito, in his dissent, called the decision “one of the most important” in the court’s history, but, in his estimation, “the Court has made a serious mistake”.
He mentioned the idea of “birth tourists” and believes the 14th amendment grants citizenship solely to those children who “owe allegiance solely to this country” and argues that this interpretation of the law would not require uprooting the lives of children born here to parents not in the country legally. He, like Kavanaugh, floated the idea of Congress addressing the issue.
“Some members of this group have lived here for years, and they have a strong moral claim to be able to remain in the land where they grew up,” Alito writes. “Congress can and should address their situation. The Fourteenth Amendment dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress.”
What will Trump do now?
Trump called Tuesday’s decision “too bad”, but appeared undeterred, insisting: “We can easily make it up in Congress through Legislation.” He wrote on his Truth Social platform: “Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship.”
Overturning a constitutional amendment requires a two-thirds majority vote of both chambers of Congress, or the legislatures of two-thirds of the states to call for a convention, a much higher bar than passing a new statute.
So instead, Trump is pushing for lawmakers to create new legislation that establish exceptions to birthright citizenship for children born to parents who do not have permanent legal status in the US.
But any legislation would need to overcome the 60-vote filibuster, which has proven to be frequently insurmountable on extremely divisive bills during his second term.
Read more coverage of today’s supreme court rulings:
