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.
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