The Supreme Court today will hear arguments on President Donald Trump’s executive order starting in 2025, a case that could end the long-standing consensus on who is considered a US citizen.
The executive order, which is not retroactive, would make it impossible for children of immigrants who are in the country without permission — or whose presence is legal but temporary, such as students or people using work visas — to receive citizenship.
Some critics called Trump’s order a blatantly unconstitutional act based on racist, anti-immigrant sentiments, while others said the White House could seek to achieve some of its goals through other means or by relying on Congress to pass legislation.
In its legal brief, the American Civil Liberties Union (ACLU) told the court that birthright citizenship is “a cornerstone of American culture and society.”
Attorney Cecilia Wang, who will oppose the order on behalf of the ACLU, told the Washington Post that Trump’s order would be “an earthquake in American life, with far-reaching consequences that we cannot fully predict.”
Wednesday’s case, many legal experts say, may open five sections of the 14th Amendment.
The White House says it encourages illegal immigration
The US – along with Canada – is among the nearly thirty-two countries, almost all of them American, that are considered to have an unconditional birthright, according to a research project of the Global Citizenship Observatory at the Robert Schuman Center for Advanced Studies of the European University Institute.
The administration has said that granting citizenship to almost anyone born on US soil has created incentives for illegal immigration and led to “birth tourism,” where immigrants travel to the United States to give birth and secure their children’s citizenship. It was for those reasons, mainly, that countries like Britain and Australia changed the law to get a conditional definition of citizenship.
But Trump’s executive order, a lower court in New Hampshire found, violated the citizenship language of the Fourteenth Amendment to the US Constitution.
In his briefs to the Supreme Court, Attorney General John Sauer wrote that “aliens can receive the precious gift of American citizenship for their children by violating United States immigration laws — and by jumping in line before other law-abiding citizens.”
The 14th Amendment was ratified in 1868 after the Civil War ended slavery in the United States, overturning the infamous Supreme Court decision from a decade earlier that had declared that people of African descent could never become US citizens. Another resulting decision came in 1898 in United States v. Wong Kim Ark, where the court ruled that the government erred in denying re-entry to the country to a California-born chef whose parents were both born in China.
Two mid-20th century acts, including the Nationality Act of 1952, provided further clarification, stating that “a person born in, and subject to the jurisdiction of, the United States” is considered a citizen.
Concerns about ‘out of shape’ children
The nonpartisan Migration Policy Institute argued that repealing birthright citizenship would “significantly increase the size” of the US population considered undocumented, while leaving an estimated 255,000 children a year born on US soil without citizenship.
Trump in his first term also denigrated birthright citizenship, and the State Department was ordered to limit visitor visas to pregnant women.
But in the 2024 presidential campaign that sealed his political comeback, Trump said immigrants were “poisoning the blood of our country” and the president’s Republican allies wanted to highlight the violent crimes committed by those in the country illegally.
Front burner29:59The end of birthright nationality?
In the first week of the administration, the press secretary Caroline Leavitt said that the White House considers foreigners who enter the US through the border areas as “criminals,” abandoning the long-standing view of the government, Republican and Democrat, that most of those who are not authorized in the country have committed an immigration offense in reaching the US.
Since last year, the US has closed even legal asylum applications and carried out a broad deportation campaign that has included deporting non-citizens to countries they did not originally come from, another departure from previous positions.
And, through messages on social media and through its spokespeople, the Department of Homeland Security urged DACA recipients — undocumented U.S. citizens in the country for years after being brought to the U.S. as children — to deport themselves, saying they do not enjoy “any kind of legal status in this country.”
Given some of those facts, critics have expressed concern that Trump’s order could pave the way for the administration to pursue more onerous or retroactive restrictions.
In another so-called “friend of the court”, a number of municipal and local officials from all over the US argue that this order will create “stateless” children who are subject to discrimination and discrimination, and their access to basic services and health care will be at risk.
Whose authority?
David Cole, a law professor at Georgetown University, wrote that the main question in this case will be the definition of “under its authority” in the 14th Amendment.
The administration asserts that this statement means that being born in the United States is not enough to become a citizen.
Citizenship is only granted to children of those whose “primary loyalty” is to the United States, including citizens and permanent residents, the administration argued. Such loyalty is established by “lawful residence,” which administrative lawyers define as “lawful residence, permanent residence within the nation, with intent to reside.”
Former prosecutor Elie Honig wrote this week in New York magazine that “a Mexican-born parent living illegally (or with temporary status) in the US is arguably ‘under the jurisdiction,’ given that they can be arrested, imprisoned, taxed and controlled by various levels of the US government.”
Honig, also a legal analyst for CNN, predicted that at least seven justices would reject the US government’s attempt to amend the definition of citizenship, citing dissenting justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh as the ones to watch, as well as Chief Justice John Roberts.
The positions of the three liberal justices are unlikely to be swayed by Sauer’s arguments. In dissenting from last year’s decision, Justice Sonia Sotomayor wrote: “Children born in the United States and subject to its laws are citizens of the United States.”
