Supreme Court To Hear Challenge To Trump’s ‘Birthright Citizenship’ Executive Order
The consequences could be YUGE – no more birthright tourism, no more anchor babies, it would be the legal equivalent of “the Wall” but would not be limited to the southern border.
You may recall what people called the “Birthright Citizenship” case from last July, which wasn’t actually about Birthright Citizenship, it was about universal nationwide injunctions in the context of Birthright Citizenship:
On May 15, 2025, the Supreme Court heard oral arguments in the Birthright Citizenship case. Except that birthright citizenship technically wasn’t before the Court, the issue was lower court national injunctions against Trump’s Executive Order instructing federal departments not to recognize birthright citizenship….
Yet the substantive merits of birthright citizenship hung over the proceedings and reared its head particularly from Justice Sotomayor who acted as if it was a settled question (hint, it’s not really) and was so hot under the collar that at one point CJ Roberts had to admonish her to let the counsel answer questions ….
The Supreme Court eventually ruled for Trump on the universal injunctions, but left a huge loophole (class actions) that allowed judges to get the same result in a different procedural manner. But left open in the SCOTUS ruling was the merits of what Birthright Citizenship is, or whether it actually is anything. Multiple federal courts ruled on the merits against Trump and issued injunctions against the Executive Order, which provides:
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.
(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.
(c) Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.
Trump filed a Petition for a Writ of Certiorari asking SCOTUS to take the case:
QUESTION PRESENTED The Citizenship Clause of the Fourteenth Amendment provides that those “born * * * in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. U.S. Const. Amend. XIV, § 1. The Clause was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. On January 20, 2025, President Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship, which restores the original meaning of the Citizenship Clause and provides, on a prospective basis only, that children of temporary visitors and illegal aliens are not U.S. citizens by birth. The Citizenship Order directs federal agencies not to issue or accept citizenship documents for such children born more than 30 days after the Order’s effective date.
The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.
You can read the response and reply at the case docket.
Keep in mind at this case is argued on the internet for the next several months, there is no Supreme Court decision ever holding that the children of people illegally in the country or merely here temporarily are entitled to citizenship as a matter of birthright. The media will claim otherwise. But the case they will all cite, United States v. Wong Kim Ark, regarded the children of legal permanent residents. From the Petition:
Wong Kim Ark did not hold otherwise. Wong Kim Ark recognized that the Citizenship Clause guarantees U.S. citizenship not just to children of U.S. citizens, but also to children of aliens “enjoying a permanent domicil and residence” in the United States. 169 U.S. at 653. That limit was central to the analysis; the word “domicil” appears more than 20 times in the opinion. And the opinion suggests that U.S. citizenship does not extend to the children of aliens who are not “permitted by the United States to reside here.” Id. at 694.
Yet, long after the Clause’s adoption, the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences.
Today the Supreme agreed to hear the case in a short form Order:
25-365 TRUMP, PRESIDENT OF U.S., ET AL. V. BARBARA, ET AL.
The petition for a writ of certiorari before judgment is granted.
So it’s on.
The consequences could be YUGE – no more birthright tourism (where expectant foreign mothers travel here to give birth), no more anchor babies, it would be the legal equivalent of “the Wall” but would not be limited to the southern border.
Here is a small sample of reader comments from the NY Times (relatively neutral) report on SCOTUS taking the case:
If the Supreme Court sides with Trump, I will be in the streets seeks to voice my clear opposition to the authoritarians hiding behind there robes. This would be the final straw for this American citizen.
There is no ambiguity in the United States Constitution about birthright citizenship. We have a rogue Supreme Court.
If the Justices do not rule 9-0 on this one it’s an abdication of their already fringe legitimacy and the 25th amendment must be invoked to protect this country against any more of their mind breaking decisions
So yeah, if SCOTUS shoots down Birthright Citizenship there will be a reaction. Not quite Abortion-ruling-level reaction, but reaction. It would be one of, if not the, most consequential achievements of the Trump presidency.
If SCOTUS overturns birthright citizenship for illegal aliens, it will make Trump the greatest president in living memory.
I don’t care if he plays golf for the next three years, he will still be the best https://t.co/hWTUi5t8op
— Ryan James Girdusky (@RyanGirdusky) December 5, 2025
My view: There's no way the court will allow Trump to eliminate birthright citizenship in this manner.
The last time I said something like this, it was about how the court would never grant the president absolute immunity from criminal prosecution. https://t.co/u9u8zvcVqs
— Damon Linker (@DamonLinker) December 5, 2025
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
Fingers and toes are crossed. Children of permanent resident aliens is one things. Those of visitors, legal or otherwise, is something completely different.
I predict the Supreme Court will rule that all children who are born of mothers who are in the country legally, citizen or not, shall be deemed to have birthright citizenship. But if a mother who is in the country illegally has a child it will also be illegal unless the father is a citizen.
Two illegals cannot begat a legal.
Agreed. Any other conclusion is in opposition to the original intent of the founding fathers and common sense. No other nation on earth permits this.
It also goes against the long standing common law principle that a person can’t benefit from an illegal act.
A person cannot benefit from an illegal act. Suppose, back in the bad old day of prohibition and on into the time when moonshining was illegal, Joe Blowe’s grandpappy ran an illegal still which the “revenoors” never found. With money earned, Joe Blowe’s grandpappy bought land on which he built a house, which he bequeathed to Joe Blowe’s father, and in which Joe Blowe was born, and which Joe inherited on his father’s demise. If it is found out that Joe Blowe has been enjoying the land and house bought with his grandsire’s ill-gotten gains, will Joe be required to turn the house and land over to the state; and, perhaps, any principal and interest accrued to monies left him by his moonshining grandfather?
That would be the SANE ruling but we don’t live in a sane world!!
Perhaps a more nuanced version of this is people LEGALLY residing in the Country with a legal mother or father. This would then cut out people legally here by accident (ie people passing through on their way to somewhere else) etc.
Anyone traveling while that pregnant is definitely hoping to have the child on a plane or in an airport.
As things have stood until now, a child born in US airspace or on a US-flagged carrier is born a citizen.
Justices Sotomayor, Jackson, and Kagan, in order of likelihood, will more likely than not dissent using their feelings dressed up as legal arguments, as usual.
But a woman has complete control of her body including abortion and the “father” has no say in it so why should he be used in this manner?
I pause to recognize Paula’s bigotry in assuming only women can give birth. /sarc
It was fairly common for storks to bring babies until recently when Biden opened the southern border and allowed birthing machines to enter.
It will not rule that. The constitution is clear, and the senate debate on its introduction bears that out. It was intended to include absolutely anyone except those who are immune from US law.
That must be why the Supreme Court granted certiorari. The issue is so clear that there is no room for reasonable debate so they have invited debate. Thanks for settling that Milhouse.
You absolutely overeducated fool. Tell me how a country whose bedrock is a foundation of laws would then turn around and bestow upon someone who did something illegal a positive benefit.
There was no such thing as illegal immigration at the time of the 14th Amendment was being debated. The issue at hand was how should we repair what was done to the slave? Since it was unconscionable to send slaves back to a land that was no longer theirs, the Framers of the 14th Amendment thought it best to give those slaves and their heirs citizenship in America. Not even the Indian was considered America citizens until years later.
This is absurd. People like you leave been intentionally abusing the clause “subject to the jurisdiction thereof” to give a positive benefit to foreigners who blatantly committed an illegal act. And we Americans are sick of it.
I admire your certainty on this (and all issues). There are brilliant lawyers in the U.S. who are not so certain, including some in the SCOTUS. Even the professor does not seem predict the outcome. Thank you for sharing your brilliant legal analysis, which isn’t gaslighting at all.
Either you haven’t actually read the debate or your reading comprehension isn’t what you think it is.
I’m not so certain, It ends us as a choice between the text and the legislative intent, the former supporting your position and the latter against it. I’d love to see the Court go with legislative intent, but I won’t be shocked if they go with the text.
Milhouse, I don’t necessarily agree with you, and in this case I think you’re being too emphatic, but I do respect your analysis. On this one, I want the Supremes to rule on intent rather than the text, but I can easily imagine it going the other way. In any case, you’re no dummy, and all the downvotes put me off.
Liberals love to point to United States v. Wong Kim Ark (1898) as legal precedent here, with the the SCOTUS having already deliberated on Congress’ 14th Amendment intentions; however, as the author of this article notes, Wong Kim Ark’s parents were legal US residents when he was born.
The idea that a nine-months-pregnant citizen of another nation can take up residency in this one without permission and, presto-change-o, give birth to a US citizen who will now be the basis for naturalizing not only the mother but also close relatives is ridiculous on its face.
That “idea” was baked in bad faith. It was none other than an illusionist’s trick to create more votes out of thin air, the goal being the securing of a permanent voting majority as liberals began to realize the odds of winning the culture war weren’t moving in their favor.
The answer to asylee question isn’t as cut and dried. Liberals worked hard to find this loophole, expand it, then drive a Mack truck through it.
The fact that Wong Kim Ark’s parents were legal US residents when he was born was irrelevant to his case. The reasoning is exactly the same regardless of his parents’ legal status. So long as they were not immune from US laws he would have been a citizen.
On the contrary, the opposition to this idea is in bad faith. No one actually believes that “jurisdiction” in the 14A means something different than it means in every other context. And as the WKA decision states, anyone who is in a country is subject to its jurisdiction, “independently of a residence with intention to continue such residence; independently of any domiciliation […] unless his case is varied by some treaty stipulations.”
“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution…
[fifty or so pages of mostly unintelligible dicta, and then the holding]
…The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Based on that logic, foreigners on vacation in the United States are “subject to its jurisdiction.” If they commit murder while here, for example, they can be arrested, tried, convicted, and sentenced here before being deported if ever released.
No one, however, argues that children born here while their foreign mothers are visiting Disney World are ipso facto US citizens.
For what it’s worth, Google AI agrees with you and even extends citizenship to children born in the United States while their foreign mothers are on vacation here.
This is problematic in the sense that, if Google AI’s interpretation of Congress’ deliberations prior to passing the 14th Amendment is correct, Congress either didn’t consider how the Amendment might be abused or didn’t care.
It is way past time that this gray area was adjudicated. For far too long liberals screamed at anyone who dared challenge this “sacred” interpretation that anyone born in the US is a citizen. Should the court rule for the President’s favor it will be epic.
I can’t wait to hear Justice AutoPen’s performance in oral arguments.
There’s also some other precedent supporting the Trump Admin position in particular with cases regarding Puerto Rico and subsequent Congressional legislation to address the Citizenship of residents of Puerto Rico and other territories captured in the Spanish American War. The phrase ‘subject to the jurisdiction’ can’t simply mean a potential for LEO to detain or give lawful orders in an interaction. Can’t even create that distinction for those present in the USA with diplomatic immunity b/c the USA can order them out of the country and they gotta obey this use of ‘jurisdiction’ by the Federal government. Instead the phrase encapsulates reciprocal duties and responsibilities from the person; jury duty, serving in a Sheriff’s Posse, service in the unorganized Militia IOW a legal basis of allegiance to the USA.
That’s just utter garbage. There is no question whatsoever that Puerto Ricans, and for that matter American Samoans, are fully subject to US jurisdiction. People born there are not US citizens by right of the 14A (and in the case of American Samoans are not US citizens at all) because they are not born in the USA. That is all.
The 14A requires two criteria: “born or naturalized in the United States”, and “subject to the jurisdiction thereof”. Puerto Ricans and American Samoans fulfill the second criterion but not the first. Puerto Ricans are nonetheless US citizens because Congress said so; American Samoans are not, because Congress never said they are.
But someone who is born in the USA, and has no immunity from US law, fulfills both criteria and is thus undoubtedly a US citizen by right of the 14A, and Congress can’t change that.
SCOTUS has never ruled directly on the question of whether the offspring of non Citizen/non lawful permanent residents are automatically US Citizens. The closest case is Wong Kim Ark in which he was ruled to be a Citizen at least in part b/c his Parents were in the Nation under what what now be ‘lawful permanent resident status’ aka green cards.
To take the view that anyone born under the jurisdiction of the USA is automatically a Citizen as you must do if you try and warp Wong isn’t tenable. Not within a legal/historical framework see the Insular cases nor from a practical standpoint. Your opinion would have no limiting principle, every person whose Mother managed to be ‘subject to the jurisdiction’ of the USA would automatically be granted Citizenship. That is simply not a workable interpretation. Beyond which it ignores any reciprocal duties and obligations of the Parents to the USA and to the State/community in which they temporarily and unlawfully reside.
We’ll find out soon enough from SCOTUS and their majority opinion is what counts, not yours or mine.
Yes, it did.
No, it wasn’t. It wasn’t even peripheral. It happened to be that Wong Kim Ark’s parents were here legally, but the analysis in no way hinged on that. The decision would have been exactly the same had they not been. And that makes all reference to his parents’ legal status dicta.
No, it suggests no such thing. On the contrary, at the bottom of the previous page it quotes Daniel Webster: “independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.”
I repeat: “independently of any domiciliation“. So all references to domicile are dicta, and the same reasoning applies to those not domiciled, for as long or as short as they are physically here.
Therefore the phrase at the bottom of that page, “so long as they are permitted by the United States to reside here”, simply means “so long as they have not been deported”. Obviously once someone has been deported, and thus is no longer being permitted to reside here, he’s no longer subject to US jurisdiction.
On the other hand this comment is just bizarre:
I agree that if they don’t rule 9-0 for birthright citizenship I will be surprised, but their legitimacy is not in any way “fringe”, and I can’t imagine what relevance the commenter thinks the 25th amendment could have. How could invoking it (by the vice president and the majority of the cabinet) in any way affect a Supreme Court ruling? How could such invocation (installing J. D. Vance as president) possibly “protect this country against any more of their mind breaking decisions”, assuming it needed such protection? Has this commenter ever read the 25th amendment, or have any idea what it says?
The discussion of the status of WKA’s parents was central to the decision. There was long discussion on who didn’t generally qualify based on their reasons for being in the realm.
My thoughts on this though is that SCOTUS could kick the issue to Congress.
No, it was not central at all. It wasn’t even peripheral. It was completely irrelevant. The reasoning in no way depends on it, and the decision itself says the opposite. The decision says the only ones who don’t qualify are those with diplomatic immunity, members of invading armies, and “Indians not taxed”.
SCOTUS:
The petition for a writ of certiorari before judgment is granted.
That is proof positive to me that this is not clear in the constitution.
That clarification is their one job. Their ruling fills in the gaps, whether you agree or not.
No, it isn’t proof. Cert is often granted on cases that end up being decided 9-0.
I lack any legal credentials, but would like to call attention to what appears to me to be obvious.
The 14th ammendment does not specify that the exceptions to “born * * * in the United States, and subject to the jurisdiction thereof” are limited to foreign diplomats and enemy combatants. These exceptions are assumed due to precedent in British common law, and subsequent court interpretations.
Therefore, the Supreme Court absolutely can change the exceptions, and hopefully will.
Justice Jackson, “I don’t know nothin’ bout birthin’ babies.”
If Congress had to pass a law “The Indian Citizen Act of 1924” to grant citizenship for native americans. It would seem that the 14th Amendment did not apply to those born to here. They surely had more grounds to claim “birthright” citizenship. So applying this logic, there is no birthright citizenship, for illegals
See section 2 of the 14th amendment. That’s why.
Prior to recent times, no welfare or benefits were given to any immigrant. Considering the welfare state presently, illegally here and giving birth has the intent to defraud the US citizens. A nation cannot exist as a welfare state with open borders. Milhouse….. in the past… “original intent” for immigration did not include or infer the welfare state. We need to go back to original intent and that societal understanding for this case… not predicated on present wishes…especially those of Cloward and Piven nor the Democrat Party.
I have very mixed thoughts about this one.
First of all, I’m glad to see that the challenge to birthright citizenship does not include the children of one citizen or one lawful permanent resident parent. I am all for discouraging illegal immigration.
But, how do we define an American? Will children of foreign students in the USA or intracompany transfer residents (a nonimmigrant status worked into law in reognition of how deeply intertwined US and Canadian economies were; and now used by many international companies with US interests) be affected?
With the abolition of birthright citizenship, we might also see situations in which persons born in the USA to illegal immigrant parents live long enough in the USA to give birth to a new generation in illegal status. The Arab states’ keeping the Falastin Arab refugees of the 1948 war and their descendants stateless “refugees” down to the fifth generation has created no end of problems for the host countries. Do we want something like that in the USA? I hope not!
This hinges on “illegal”. It’s truly “unfair” to break in line for those that want to be and are willing to go through the process. Citizenship has value.
As for the “refugees”, they were transformed into a militant force by the Arab states who didn’t want them. They became refugees for several reasons… fear of being caught in crossfire, fear of being murdered by the attacking armies that said that anyone still in Israel were traitors, instructed by imams to leave, and those promised to get all the dead Jews possessions once they killed all the Jews. Pick your poison….
Leave a Comment