SCOTUS Rejects Trump Birthright Citizenship Order
The High Court said children born in the U.S. to illegal or temporary residents are citizens under the 14th Amendment
The U.S. Supreme Court on Tuesday struck down President Donald Trump’s Executive Order seeking to end birthright citizenship for children born in the United States to parents who are here illegally or on a temporary basis.
In Trump v. Barbara, the Court affirmed a lower court order blocking Trump’s policy. Chief Justice John Roberts wrote for a five-justice majority, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson. Justice Brett Kavanaugh agreed the Order could not stand, but said he would have ruled on statutory grounds rather than the Constitution. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
The case turned on the first sentence of the 14th Amendment, which says, “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.” Trump’s order argued that children born to illegal immigrants or temporary visitors were not “subject to the jurisdiction” of the United States. The Court rejected that view.
“Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause,” the Court held.
Roberts wrote that the children covered by Trump’s order “satisfy both elements of the Citizenship Clause.” He added, “Under the Constitution, they are citizens at birth.”
Trump issued Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” on Jan. 20, 2025, shortly after taking office for a second term. The Order said citizenship would not extend to a child born in the U.S. when the mother was in the country illegally and the father was not a citizen or lawful permanent resident. It also applied when the mother was here lawfully but only on a temporary basis, and the father was not a citizen or lawful permanent resident.
The Order never took effect. Federal courts blocked it while lawsuits moved forward. After the Supreme Court limited nationwide injunctions in Trump v. CASA, challengers kept pressing the merits of the case through class-action claims. A federal judge in New Hampshire later blocked enforcement against a class of children who would be denied citizenship under the Order.
Roberts grounded Tuesday’s ruling in English common law, the aftermath of Dred Scott v. Sandford, the Civil Rights Act of 1866, and the 1898 decision in United States v. Wong Kim Ark. The majority said the 14th Amendment adopted the broad common-law rule that nearly all children born on American soil are citizens, with narrow exceptions for such cases as children of foreign diplomats.
“What the Court held in Wong Kim Ark was simple,” Roberts wrote: “the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States.”
The Court also rejected the administration’s claim that citizenship depends on whether a child’s parents owe “primary allegiance” to the United States or are domiciled here.
“There is scant evidence for this dramatically revisionist view,” Roberts wrote. He added that if Congress had meant to limit citizenship to the children of people domiciled in the United States, “nothing in the succinct language of the Citizenship Clause conveyed that design.”
Kavanaugh agreed the Executive Order was invalid, but not because of the 14th Amendment. He said the Order violated federal law, which uses the same citizenship language. Congress, he wrote, could try to amend that law or pass new limits, but “Congress has not yet done so.”
Alito called the ruling “one of the most important decisions in the history of the Court” and “a serious mistake.” He argued that the 14th Amendment grants citizenship only to children who, at birth, “owe allegiance solely to this country.”
Thomas, joined by Gorsuch, filed a long dissent. He said the majority’s reading was “not historically accurate” and argued the 14th Amendment was meant to secure equal rights for freed slaves, not to create the rule applied by the Court on Tuesday.
The ruling is a major loss for Trump’s immigration agenda. It leaves in place the convention that, with narrow exceptions, children born in the United States are citizens from birth.
The full decision in Trump v Barbara may be read HERE.
