On the first day of his second term in the White House, President Donald Trump signed an executive order challenging a long-established interpretation of the U.S. Constitution by eliminating birthright citizenship. On Wednesday, the Supreme Court will hear arguments in a case contesting his order.
Trump was seeking to reinterpret the constitutional language giving citizenship to almost every child who is born in the United States, regardless of their parents’ legal status. The president doesn’t want citizenship granted to children born to parents who are in the United States either illegally or temporarily.
The order sparked concern among expecting mothers, immigration advocates and constitutionalists. It was also unclear what the order could mean for those who had already been granted citizenship under the long-standing constitutional right.
The case before the Supreme Court was partially presented to the justices during last year’s term, but the high court ultimately ruled on the matter of nationwide injunctions, declining to take up the birthright issue itself. This week, the justices will hear the Trump administration’s appeal of a lower-court ruling that blocked his executive order.
Here’s what to know ahead of the arguments in Trump v. Barbara:
Trump administration argument
Trump’s order challenged the interpretation of the 14th Amendment, saying that babies born to parents unlawfully in the U.S. or in the country on a temporary visa cannot be “subject to the jurisdiction” of the country, or granted automatic citizenship.
The administration is likely going to lean on its argument that in the language of the amendment, it states that all people born in the U.S. are “subject to the jurisdiction thereof.”
The 14th Amendment reads, in part: “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.”
The administration argues that the language was not meant to cover everyone born on U.S. soil and should apply only to those who pledge allegiance to the country, not those who want to come to the U.S. to give birth to their children and have a through-line to citizenship that way.
The 14th Amendment was adopted in the aftermath of the Civil War.
In 1857, the Supreme Court held that the U.S. Constitution did not extend citizenship to enslaved Black people in the Dred Scott v. Sandford case. In 1868, the 14th Amendment was added to the Constitution, guaranteeing citizenship, due process and equal protection to those born in or naturalized in the country. In 1898, the Supreme Court confirmed and clarified the amendment in the United States v. Wong Kim Ark case.
Wong Kim Ark was a child born in San Francisco to parents who were Chinese citizens at the time, before later becoming U.S. citizens. The boy was denied reentry to the U.S. after a trip abroad and the legal battle over his citizenship reached the Supreme Court. This was the first case on the status of children born to immigrants and created a precedent in the court’s interpretation of the 14th Amendment going forward.
But the administration argues that Trump’s order “restores the original meaning” of the Citizenship Clause, and that the text was intended to provide citizenship to enslaved peoples and permanent residents.
The administration argues that the respondents in the current case who say that Wong Kim Ark’s case proves citizenship should be extended to all immigrant children miss that in 1898, at the time of the ruling, the boy’s parents were of “lawful ‘permanent domicil and residence’ here.”
However, the ACLU and respondents say that the court’s decision in the case includes “all immigrants,” proving that “even temporary visitors” should be subject to the jurisdiction and the rights provided by the amendment.
Opposing Trump’s order
Several lawsuits challenged the constitutionality of Trump’s order. The lawsuits were filed by expectant mothers, immigrant rights groups and several states. They were consolidated into one case for the Supreme Court to review.
The groups challenging Trump’s order, led by the American Civil Liberties Union, point to the historical precedent that courts, Congress and previous presidents have all understood and accepted regarding the language of the amendment. The ACLU says that birthright citizenship is “central to who we are as a country” and that “no president has the power to rewrite the Constitution.”
The respondents in their brief to the court, like the administration, are leaning heavily on the text of the amendment. They argue that “all persons born here” should apply to “all” and “not just some.” They noted that the Framers included the text to be “All persons born here” so it’s broadly interpreted to include many, not just a few.
U.S. Solicitor General D. John Sauer argues in the administration’s brief that birthright citizenship has been taken advantage of by women who come to the country to give birth solely so their children receive U.S. citizenship.
The respondents pushed back on this argument, saying that even if the pathway to citizenship was being abused through “birth tourism,” it was “marginal” and there were other ways to deal with the issue if it is a problem.
The respondents also point out that in the 1940s and ‘50s, Congress also upheld the “subject to the jurisdiction thereof” language in immigration law, showing that lawmakers found the text to be suitable enough to codify it into law. They point out the Trump administration is not challenging the statute, just the interpretation of the amendment.
Meanwhile, the administration is arguing that the court should review the matter and not rely on decades-old text.
Case background
The administration brought the case to the Supreme Court in 2025 through the emergency docket process.
After multiple lawsuits were filed against Trump administration policies, lower court judges issued several nationwide injunctions, including on birthright citizenship.
Federal judges argued that Trump would have a hard time proving that his order was constitutional in court.
Judge John Coughenour, a Seattle-based judge appointed by Ronald Reagan, was one of the judges who blocked the order last year.
“I can’t remember another case where the question presented is as clear as this one,” he said in his decision. “This is a blatantly unconstitutional order.”
The administration then brought a case to the justices, asking the high court to limit lower-court judges’ ability to issue nationwide injunctions.
The Supreme Court issued a 6-3 decision last June, ruling that the federal judges exceeded their power by issuing the nationwide injunctions and halting Trump’s order. The decision was along ideological lines and delivered by Justice Amy Coney Barrett.
Justice Sonia Sotomayor dissented from the majority’s decision. She argued that the Trump administration brought the initial case before the Supreme Court about injunctions because they know they will have an uphill battle proving that Trump’s order is constitutional.
Experts have pointed to Sotomayor’s argument, noting that the administration may have a tough time proving its case.
Shortly after the justices’ decision on nationwide injunctions, a federal judge banned Trump from implementing the order though a class-action lawsuit. The Department of Justice appealed the suit and landed the case before the Supreme Court. The justices decided in December to add the case to its docket for this term.
Trump, legal experts weigh in on birthright citizenship case
Trump on Monday posted on Truth Social about birthright citizenship, saying that he believes the 14th Amendment is “not about rich people from China, and the rest of the World, who want their children, and hundreds of thousands more, FOR PAY, to ridiculously become citizens of the United States of America.”
“It is about the BABIES OF SLAVES! We are the only Country in the World that dignified this subject with even discussion. Look at the dates of this long ago legislation — THE EXACT END OF THE CIVIL WAR!” Trump said. “The World is getting rich selling citizenships to our Country, while at the same time laughing at how STUPID our U.S. Court System has become (TARIFFS!).”
Steven Vladeck, a Supreme Court expert and law professor at Georgetown University, told the Deseret News last year that there is “pretty broad consensus” that Trump’s order was unlawful. According to multiple surveys conducted by Morning Consult for the Deseret News and the Hinckley Institute of Politics, Americans and Utahns largely believe that birthright citizenship should remain as it stands.
However, not everyone thinks the case will be an easy win for the ACLU.
Kevin Roberts, the president of the Heritage Foundation, said “birth tourism” is an example of “the absurdity” that birthright citizenship has brought to the U.S.
“The 14th Amendment was never intended to grant citizenship to the children of foreigners,” he said online. “Its current application is a gross exploitation that must end if American citizenship is to mean anything at all.”
A decision in the case is expected by the end of the current term, which ends in June.