There are several noteworthy cases the Supreme Court has decided to take up this term. But perhaps no case has as potentially long-lasting and seismic an impact as the one SCOTUS took up on December 5: birthright citizenship.
On January 20, 2025, President Donald Trump signed an executive order that denies birthright citizenship to children born in the United States to parents who are either unlawfully present or only temporarily in the country (such as tourists).
The executive order directly challenges long-settled law that nearly everyone born in the United States is a citizen, regardless of parental status, under the Citizenship Clause of the Fourteenth Amendment. The opening of the 14th Amendment states that “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.”
The Fourteenth Amendment was passed in the wake of the Civil War. The Citizenship Clause was meant to overrule the infamous Dred Scott case in which the Supreme Court held that enslaved Black people were not — and could not become — U.S. citizens. After ratification, the question was again raised in U.S. v. Wong Kim Ark. In that 1898 decision, the Supreme Court analyzed the text of the 14th Amendment and common law regarding citizenship, and held that the Citizenship Clause covered all persons, not just descendants of slaves, who are born on U.S. soil.
The Arguments
The Trump administration argues that the Clause was intended only to cover formerly enslaved people and their descendants, not children of noncitizens who are here unlawfully or temporarily. They further argue that people here unlawfully are not “subject to the jurisdiction” of the United States. The administration contends that Wong Kim Ark only applies to lawful residents, not undocumented immigrants, and so can be distinguished from the people targeted in the EO.
The plaintiffs argue that the EO violates the plain meaning of the 14th Amendment and the 1898 precedent set in Wong Kim Ark. They also argue that Congress codified birthright citizenship in the mid-20th century, with full knowledge of the Wong Kim Ark decision, so that the EO, in addition to being unconstitutional, also violates federal law. The plaintiffs also make a public policy argument, pointing out that on such a significant matter, it doesn’t make sense to allow birthright citizenship to be so easily modified by any one administration, and that allowing the EO would lead to uncertainty and chaos over immigrants’ status as changing administrations may change birthright citizenship.
Executive Order Has Repeatedly Been Blocked
Multiple district courts issued preliminary injunctions soon after the January 20 order, blocking it nationwide and preserving birthright citizenship for all children born in the United States while the cases proceeded. In one case, a federal judge in New Hampshire held that the order likely contradicted the plain language of the Fourteenth Amendment, while a divided Ninth Circuit panel in Trump v. Washington also concluded that the executive order was invalid for the same reason. The administration then petitioned the Supreme Court to review these decisions, arguing both that the lower courts misread the Citizenship Clause and that they exceeded their authority by issuing sweeping nationwide injunctions.
We wrote about SCOTUS’ subsequent order last July, but in essence, the majority held that universal injunctions “likely exceed the equitable authority that Congress has given to federal courts.” However, SCOTUS also held that district courts have the authority to make plaintiffs whole when issuing injunctions. They sent the case back to the lower courts to issue narrower injunctions. The district courts did so. For example, the federal district court in New Hampshire created a provisional class of plaintiffs for babies born on or after February 20, 2025. The upshot is that the EO has never gone into effect.
The Court’s emergency ruling means that, as of now, children born in the United States are still being treated as citizens under existing law, but the future status of births after certain dates could depend on the Court’s final decision. So far, no federal court has sided with the Trump Administration. The Ninth Circuit Court of Appeals is the only appellate court to have weighed in.
What Will SCOTUS Do?
The Supreme Court has scheduled oral argument for early next year. It is likely that they will issue an order at the very end of the term, sometime around the end of June or early July, meaning we’ll see a decision just before the Fourth of July. It’s not clear how the court will rule, but it is likely to be a relatively close vote either way.
Related Resources
Supreme Court Insights (FindLaw for Legal Professionals)
SCOTUS Puts Transgender Passport Rights on Hold (FindLaw’s Federal Courts)
Will SCOTUS Justices Break Ranks Over Trump’s Tariffs Case? (FindLaw’s Federal Courts)
