The Supreme Court justices heard oral arguments on Wednesday in Trump v. Barbara, a case stemming from President Donald Trump’s executive order issued last year that ended birthright citizenship for children born to parents in the United States temporarily or illegally.
Trump signed the order, “Protecting the Meaning and Value of American Citizenship,” on Jan. 20, the same day he was sworn in for his second term.
The Trump administration argued before the court that the citizenship clause in the 14th Amendment has been misinterpreted for decades, asserting that just because a baby is born on U.S. soil should not automatically guarantee citizenship.
Their argument was challenged inside the court by the American Civil Liberties Union, while outside the courtroom on Wednesday, protesters who opposed Trump’s changes to birthright citizenship rallied.
“I don’t really see hardly anybody on his side,” Gary Lin, a D.C. resident, told the Deseret News about the protests, as he held aloft American and pride flags. “So just as usual, he’ll ignore it and say, ‘Ah, you know, it doesn’t mean anything.’”
Lin said he showed up to protest because he opposes the changes to birthright citizenship and worries about Trump running “roughshod over due process.”
He said he’s hopeful about the outcome of the case because he has heard that the conservatives on the court are split on the issue.
Lin might be right, but a decision in the high-profile case likely won’t come before June.
What attorneys said in oral arguments
The Constitution states, “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.”
U.S. Solicitor General D. John Sauer said in his argument before the Supreme Court on Wednesday that the federal government’s interpretation of “subject to the jurisdiction thereof” means lawful, permanent allegiance to the U.S.
Under that line of reasoning, children born to temporary visitors or immigrants living illegally on U.S. soil would not automatically qualify for citizenship, because their parents are not domiciled residents, meaning they are not permanent residents of the U.S. and therefore don’t hold an allegiance to the laws of the land.
The 14th Amendment was ratified in 1868 to establish citizenship and civil rights for newly freed slaves. “For decades following the clauses’ adoption,” Sauer said, “commentators recognize that the children of temporary visitors are not citizens, and illegal aliens lack the legal capacity to establish domicile here.”
The federal government’s other main argument was that other countries do not allow birthright citizenship. Trump posted on Truth Social on Wednesday that “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”
Though there are about 35 countries that allow unrestricted birthright citizenship, Trump and his administration take the position that “it’s a very small minority, because almost every country, and certainly all European countries, have a different rule,” Sauer said.
He continued, “Every nation in Europe has a different rule, and the notion that they have a huge humanitarian crisis as a result of not having unrestricted birthright citizenship, I don’t think, is a strong argument.”
“We’re in a new world now,” Sauer said, pointing out that the framers of the 14th Amendment couldn’t have imagined living in a time “where 8 billion people are one plane ride away from having a child who is a U.S. citizen.”
“It’s a new world,” Chief Justice John Roberts responded. “It’s the same Constitution.”
United States v. Wong Kim Ark
Both parties cited a Supreme Court decision from 127 years ago, United States v. Wong Kim Ark, in which the court confirmed and clarified the 14th Amendment.
Wong Kim Ark was born in San Francisco in 1873 to Chinese parents who were ineligible to become U.S. citizens under immigration law at the time. After a trip to China, Wong was denied reentry to the U.S. because, as a child of noncitizen parents, he was not a U.S. citizen. The Supreme Court decided in a 6-2 decision that birth on U.S. soil automatically conferred citizenship, regardless of the parents’ citizenship status.
Sauer said the federal government is not attempting to overturn the ruling in Wong, but instead to reinterpret it or narrow it down so that it does not control the outcome of the justices’ current decision.
Questions from the justices over the government’s current interpretation of the Wong case showed skepticism of the administration’s argument. Justice Neil Gorsuch went so far as to say that Sauer shouldn’t be invoking it in his argument.
If Wong has been understood for over 100 years to mean broad birthright citizenship, then narrowing it now seems functionally equivalent to overturning it, the justices said. Sauer disagreed.
ACLU argues to keep birthright citizenship as is
Cecillia Wang, national legal director for the ACLU, argued against the administration that if born on U.S. soil, you are given the right of U.S. citizenship, with few exceptions.
“My friend has now clearly said that the government is not asking you to overrule Wong Kim Ark,” Wang said. “That is a fatal concession, because Wong Kim Ark’s controlling rule of decision precludes their parental domicile requirement. The dissent understood that, and the majority tells us six times in the opinion that domicile is irrelevant under common law.”
Wang also brought in the humanitarian argument of changing the law on birthright citizenship.
“The 14th Amendment’s fixed bright line rule has contributed to the growth and thriving of our nation. It comes from text and history. It is workable and it prevents manipulation,” she said. “Thousands of American babies will immediately lose their citizenship. And if you credit the government’s theory, the citizenship of millions of Americans, past, present, and future, could be called into question.”
Justice Samuel Alito was arguably the most aggressive when questioning the ACLU’s interpretation of the Wong Kim Ark case.
“We’ve heard a lot of talk about Wong Kim Ark, and you dismiss the use of the word domicile in it,” Alito said. “It appears in the opinion 20 different times — including in the question presented and in the actual legal holding — and the government doesn’t want it to be overruled because it relies on, willing to rely on that particular fact ... isn’t it at least something to be concerned about?”
Wang acknowledged the word but said that domicile was just one of the facts of the case, not the legal rule. The actual rule, she said, states that citizenship does not depend on domicile at all. Alito did not seem satisfied with her response. “I might agree with you if domicile had simply been sprinkled in the opinion,” he said.
The justices are expected to issue a decision on the case by June. It’s unclear how the justices will ultimately rule, but after arguments Wednesday, they appeared to show skepticism of the administration’s argument for changing the interpretation of the Constitution.
Trump’s historic day
President Trump made history on Wednesday as he sat in the courtroom’s public gallery to listen to arguments in the case. Trump arrived with U.S. Attorney General Pam Bondi and stayed in the courtroom for an hour before leaving.
At the time of Trump signing the executive order, someone in the room commented that his attempt to redefine the U.S. Constitution’s 14th Amendment would likely be challenged.
“It could be,” Trump responded, calling America’s long-standing approach to birthright citizenship “absolutely ridiculous. But you know, we’ll see. We think that we have very good grounds.”
Protesters outside Supreme Court call to maintain birthright citizenship
Tanjam Jacobson stood outside the court with a sign protesting, as she has once a week since the court’s 2024 immunity ruling. She immigrated from the United Kingdom after being inspired about how Americans “stand up for their rights.”
“I wanted to be somewhere where you could do that,” she said. “I’m out here today because I’m an immigrant.”
Another protester, Azalea Cormier, traveled from Maine to be in Washington, D.C., on Wednesday, noting the effects of the 14th Amendment in her state.
She said the trip is intended to “kind of repay” the contributions that the Somali community has given to her area. If the justices ruled in Trump’s favor, she said, it would “affect their community deeply.”
Many in the crowd protesting were critical of Trump’s visit to the high court. Cormier called it an “intimidation tactic,” while Gary Lin said he thinks the crowd — and the justices potentially ruling in the defendants’ favor — might show Trump that he can’t “do whatever he wants.”
Trump v. Barbara background
The case was brought before the justices Wednesday after more than a year of being hung up in a legal battle. Just hours after Trump signed the order last January, individuals, organizations and several states sued the administration.
Lower court judges issued several nationwide injunctions on the birthright order, stopping the administration from implementing it. The judges argued that Trump would have a hard time proving his order was constitutional.
A Seattle-based judge appointed by Ronald Reagan went as far as to say the case was clear: It was a “blatantly unconstitutional order.”
The administration brought the case to the Supreme Court last year through the emergency docket process. The justices ruled in the nationwide injunction matter, not weighing in at the time on the birthright issue, which prompted the injunctions. The court ultimately ruled that the judges were overstepping, giving a win to the administration.
The birthright case was added to the court’s docket last fall for the 2026 term.
Experts have been split about whether the justices would be skeptical of the administration’s argument.
While Trump’s attendance Wednesday shows this is a key issue for the president, the justices’ questions indicate that even the court’s more conservative justices were skeptical of the legality of the president’s order.