The US supreme court on Wednesday appeared poised to protect birthright citizenship, the longstanding policy that babies born in the US are American citizens, in what would be a blow to a key immigration policy for Donald Trump.
The court heard oral arguments with Trump himself in attendance inside the courtroom’s public gallery. A majority of justices asked questions indicating skepticism about the government’s attempt to overturn birthright citizenship. But while some expected the case to be a clearcut win for those challenging the government, it is unclear how many justices might side with Trump. A decision is expected this summer.
If birthright citizenship is overturned, hundreds of thousands of children born annually would be blocked from US citizenship.
D John Sauer, the solicitor general arguing on behalf of the Trump administration, quickly jumped into the concept of “domicile”, arguing those who are here unlawfully or temporarily do not have “domicile” in the US or allegiance to the country, unlike the formerly enslaved people the 14th amendment’s citizenship clause applied to.
The clause does not include the word domicile; Sauer argues the text of the clause “presupposes domicile”.
“Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations,” Sauer said in his opening statement. “It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules. It has spawned a sprawling industry of birth tourism.”
The justices repeatedly asked questions of both sides inquiring in to the concept of “domicile” and differing phrasing of citizenship in parts of US law, figuring out how to square these wording choices for birthright citizenship. They pointed to other countries’ citizenship laws and exceptions to birthright citizenship, such as children born to foreign diplomats. They asked why the 14th amendment uses the term “subject to the jurisdiction thereof” while other US law uses “not subject to any foreign power”. They questioned how the law applies to Native Americans and to “foundlings” with unknown parentage.
The chief justice, John Roberts, at one point referred to part of the government’s argument as “very quirky”. Elena Kagan, a liberal justice, said the government was using “pretty obscure sources” to arrive at part of its case.
Sauer asked that the court only change the law prospectively, as the order sets, but the court would ultimately get to decide whether to apply the reasoning more broadly, if it sides with the government’s contention that the 14th amendment’s citizenship clause has been misinterpreted.
Justice Ketanji Brown Jackson, part of the court’s liberal bloc, questioned the logistics of the order, asking how parents could prove their intent to be permanent residents of the US and how they could dispute a determination that they did not have domicile here.
“So are we bringing pregnant women in for depositions?” she asked Sauer.
Outside the court, hundreds demonstrated in favor of birthright citizenship and against the president’s order.
The American Civil Liberties Union (ACLU) argues ending birthright citizenship would create “a permanent subclass of people born in the United States who are denied their rights as American citizens”.
Cecillia Wang, arguing before the court for the ACLU, told the justices that Americans’ understanding of the country’s citizenship rule was that everyone born here is a US citizen. If Trump’s executive order were reinstated, thousands of babies would immediately lose their citizenship, she noted, but under the government’s theory, “the citizenship of millions of Americans past, present and future could be called into question”, Wang said.
“The 14th amendment’s fixed bright line rule has contributed to the growth and thriving of our nation,” Wang said. “It comes from text and history. It is workable and it prevents manipulation.”
Roberts asked about the prevalence of Sauer’s claims of “birth tourism”, later asking Sauer; “You do agree that that has no impact on the legal analysis before us?” Sauer said he believed it showed the interpretation of the citizenship clause has been a “mess” and that we were in a “new world” with migration compared with the 19th century, when the 14th amendment was adopted.
“Well, it’s a new world, but it’s the same constitution,” Roberts responded.
Wang contended that the Trump administration’s policy ideas should not play into how the court construes the case.
“We can’t take the current administration’s policy considerations into account to try to re-engineer and radically reinterpret the original meaning of the 14th amendment,” Wang said.
On his first day in office, Trump issued an executive order that sought to undo birthright citizenship, overriding the US constitution – or, as his administration has argued, interpreting the constitution correctly, in defiance of supreme court precedent.
If the court rules against Trump, it would be a major hit for one of his biggest policy changes, coming after the court struck down his tariffs, another of his signature policies. It would probably anger the president, who earlier this week claimed other countries were “selling citizenships” to the US and attacked the federal court system as “stupid” on Truth Social.
Trump was on Wednesday the first sitting president to sit in on a supreme court hearing. He left after the government argued its side of the case.
Democratic state attorneys general and advocacy groups immediately filed lawsuits against the order, arguing it extended beyond Trump’s authority.
“We are optimistic the US Supreme Court will agree with every judge to consider this executive order on the merits and hold that it violates this fundamental constitutional right,” the Democratic attorneys general from 24 states said in a collective statement on Wednesday.
The 14th amendment, adopted in 1868 during the Reconstruction era after the US civil war to codify the rights of Black Americans and reverse the Dred Scott decision, confers citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof”.
The Trump administration argues the phrase “subject to the jurisdiction thereof” means babies born in the US to people who are not lawfully present in the country are not citizens. The executive order says this includes when neither of a person’s parents were US citizens or lawful permanent residents, or if a parent has legal, but temporary, status.
The order would apply to those born in the US after 19 February 2025. The Migration Policy Institute estimated this change would increase the population of unauthorized immigrants significantly – “by an additional 2.7 million by 2045 and by 5.4 million by 2075”, a projection released last May said, based on an average of about 255,000 children born under these parameters each year.
One named plaintiff in the case is a Honduran citizen with a pending asylum application in the US who was expecting her fourth child. Another is a citizen of Taiwan who has been in the US for 12 years whose fourth child would be affected by the order; her three other children are US citizens. A third is a father, a Brazilian citizen living in the US for the past five years, whose first child was born in March 2025, after the order would be in place if it’s legally upheld.
“She fears her child will be unjustly denied the security, rights, and opportunities that come with US citizenship, leaving their future in doubt,” the lawsuit said of the person with the pseudonym Barbara.
The president cannot unilaterally overturn a constitutional amendment; that requires congressional action. But the administration is arguing not that they are overturning the amendment, but rather interpreting it according to its intended meaning. The Trump administration wants the supreme court to reinterpret the amendment and allow the order to be enforced, overriding more than 125 years of legal precedent.
The landmark decision on birthright citizenship, United States v Wong Kim Ark, made clear that a child born to parents of Chinese descent who had permanent “domicile” in the US would be a US citizen at the time of birth under the 14th amendment. The Trump administration argues “domicile”, meaning a permanent residence, is a critical part of the interpretation, despite the word not appearing in the amendment itself.
The administration is relying in part on the legal arguments of a white supremacist from the late 1800s, the Washington Post reported. John Eastman, a lawyer who worked with Trump to try to overturn the 2020 election results, is also a key proponent of the effort to overturn birthright citizenship, Politico reported.
While most conservative legal scholars believe the 14th amendment has been interpreted correctly, more in recent years have come to believe Trump could win. Two legal scholars wrote in the New York Times last year that “the justices will find that the case for Mr Trump’s order is stronger than his critics realize”.
