The Supreme Court on Friday agreed to review the constitutionality of President Donald Trump’s order that would end birthright citizenship for children born in the United States to parents who are in the country illegally or only on a temporary basis. The justices will hear the administration’s appeal of a lower-court decision that struck down the policy, which has not been implemented anywhere in the country. Arguments are expected in the spring, with a ruling likely by early summer.
Trump signed the order on Jan. 20, the first day of his second term, as part of a broader immigration crackdown that has included heightened enforcement in several cities and the first peacetime invocation of the 18th-century Alien Enemies Act. The administration is defending multiple components of its immigration agenda in court, and the Supreme Court has issued mixed rulings in related emergency disputes.
In one case, the justices blocked the administration’s reliance on the Alien Enemies Act to rapidly deport alleged Venezuelan gang members without hearings. In another, they allowed immigration officers to resume wide-ranging stops in the Los Angeles area after a lower court had barred the practice of targeting people based on factors such as race, language, job or location.
The high court is also considering an emergency request that would permit the deployment of National Guard troops in the Chicago area to assist with immigration enforcement. A lower court has temporarily halted that deployment.
The birthright citizenship case is the first of Trump’s immigration orders to reach the Supreme Court for full briefing and argument. The order directly challenges more than 125 years of widely accepted interpretation of the 14th Amendment, which has been understood to grant citizenship to almost all children born on U.S. soil, with narrow exceptions for children of foreign diplomats or occupying forces. Under the traditional reading of the amendment, children born in the U.S. to parents who entered or remained in the country illegally are citizens at birth.
Lower courts have consistently found Trump’s directive unconstitutional or likely unconstitutional. Those rulings continued even after the Supreme Court’s June decision curbing judges’ authority to issue nationwide injunctions. In that decision, the court left open the possibility of other forms of nationwide relief—such as class-action orders or lawsuits brought by states—and did not address the underlying legality of Trump’s birthright citizenship policy.
The case now before the justices originated in New Hampshire, where a federal judge in July blocked the order in a class-action lawsuit covering all children who would be affected. The Justice Department has also asked the Supreme Court to review a separate decision from the 9th U.S. Circuit Court of Appeals in San Francisco. In July, that court concluded that a coalition of Democratic-led states challenging the order was entitled to a nationwide injunction, reasoning that allowing the policy in some states but not others would create legal confusion. The Supreme Court took no action Friday on the 9th Circuit case.
How Birthright Citizenship Works and Its Origins
Birthright citizenship is the long-standing principle that anyone born on U.S. soil is automatically a U.S. citizen, regardless of their parents’ immigration status. It is grounded in the 14th Amendment, adopted in 1868 after the Civil War to guarantee citizenship for formerly enslaved people and their children. For more than a century, courts and presidential administrations have interpreted the amendment’s Citizenship Clause to confer citizenship at birth with only limited exceptions, such as for the children of foreign diplomats or an occupying army. That framework has guided federal policy ever since, setting a uniform national standard for who is considered a citizen.
The administration contends that children of noncitizens are not “subject to the jurisdiction” of the United States in the sense required by the 14th Amendment’s Citizenship Clause and therefore do not qualify for automatic citizenship.
“The Fourteenth Amendment’s Citizenship Clause was adopted to grant citizenship to newly freed slaves and their children — not to the children of aliens illegally or temporarily in the United States,” Solicitor General D. John Sauer wrote in asking the court to take up the dispute.
Twenty-four Republican-led states and 27 Republican members of Congress, including Senators Ted Cruz of Texas and Lindsey Graham of South Carolina, have filed briefs in support of the administration’s position.
Where Else Is Birthright Citizenship Recognized?
Roughly three dozen countries provide full birthright citizenship, a practice most common in the Western Hemisphere. The United States and Canada are the only major developed nations that still grant automatic citizenship to nearly all children born within their borders. Many nations in Europe and Asia have abandoned unconditional birthright citizenship in recent decades, shifting to systems that require at least one parent to be a citizen or legal resident.
Supporters of birthright citizenship argue that it establishes clear and uniform rules for nationality and prevents the creation of large populations of stateless or quasi-stateless residents. Critics say it can encourage unauthorized immigration and believe citizenship should be more closely tied to parents’ legal status or long-term ties to the country.
