Children's futures at stake in Supreme Court birthright citizen case
The three class representatives for one of the most significant class actions to come before the U.S. Supreme Court in a generation can be forgiven if they don’t comprehend the gravity of their case. They are, respectively, 1 year, 11 months, and 5 months old.
The children, born in Florida, Utah and New Hampshire, are among those who would be denied United States citizenship if the court allows President Donald Trump’s 2025 executive order limiting birthright citizenship to take effect.
“Birthright—that’s a big one,” Trump said as he signed the order on the first day of his second term. “We think we have very good grounds.”
The order declares that a person born in the U.S. is not subject to its jurisdiction and thus is not a citizen by birth under two circumstances: When the child’s mother is unlawfully present in the United States; or when the mother’s presence here at the time of birth is lawful but temporary, such as on a student, tourist or work visa. Both circumstances also require that the father not be a U.S. citizen or lawful permanent resident at the time of the birth.
The Trump administration argues that the longtime understanding of birthright citizenship being granted to almost all babies born on U.S. soil by the 14th Amendment’s citizenship clause promotes unlawful immigration and so-called birth tourism that pose significant threats to national security and public safety.
“Automatic citizenship for children of illegal aliens provides a powerful incentive for illegal migration,” U.S. Solicitor General D. John Sauer says in the administration’s main brief in Trump v. Barbara, which will be argued Wednesday. “Such children become citizens upon birth here, and their illegal-alien parents often promptly assert that citizenship to impede their own removal.”
The 14th Amendment’s citizenship clause “was adopted to grant citizenship to freed slaves and their children—not to children of temporarily present aliens or illegal aliens,” Sauer says in the brief. “The clause’s text, its original meaning and history, and this court’s cases confirm that the clause extends citizenship only to those who are completely subject to the United States’ political jurisdiction—in other words, to people who owe ‘direct and immediate allegiance’ to the nation and may claim its protection.”
Advocates for the class of young challengers say the Trump order would have severe consequences for any child born after Feb. 19, 2025, the order’s effective date that has, for now, been forestalled by litigation.
“For them, what it means is being stripped of the right of U.S. citizenship, being exposed to the terror of—for their families—arrest, detention and deportation,” says Cody Wofsy, the deputy director of the American Civil Liberties Union Immigrants’ Rights Project, which represents the plaintiffs. “It means potentially rendering them stateless. … And then as they grow up, it’s going to mean excluding them from the only country that they’ve ever known.”
Looking back to 19th and 17th century rulings
The challengers say the language of the 14th Amendment’s citizenship clause—“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”—reaffirmed a centuries-old, common-law tradition of citizenship by virtue of birth, rather than parentage.
Last year’s early rounds of litigation over the executive order resulted in two nationwide injunctions blocking the measure, but the Supreme Court ruled in Trump v. CASA Inc. in June that such universal injunctions likely exceed the authority of federal courts. The court did leave the door open to class action challenges to the birthright citizenship order.
The ACLU immediately filed the class action that resulted in a new injunction by U.S. District Judge Joseph N. LaPlante of New Hampshire, who last July provisionally certified a class of children and held that the executive order was likely unlawful under the citizenship clause and a federal immigration statute.
The judge said the order was inconsistent with the Supreme Court’s 1898 decision in United States v. Wong Kim Ark that the 14th Amendment’s citizenship clause enshrined a common-law understanding of birthright citizenship that at English common law, almost all children born in the king’s territory to foreign nationals were subjects. The decision affirmed the U.S. citizenship of the American-born son of Chinese nationals.
“Some provisions of the U.S. Constitution are vague or ambiguous, but the citizenship clause is not one of them,” Amanda Frost, a University of Virginia law professor and an expert on immigration and citizenship law, said earlier this month during a Senate Judiciary Committee hearing on the topic. “The text, the legislative history, and the original public understanding all confirm that the citizenship clause applies to everyone born in the United States with narrow exceptions, the only relevant one today being for the children of diplomats.”
The Trump administration and its allies argue that Wong Kim Ark actually supports the executive order. They argue that birthright citizenship applies only to those with “domicile”—a lawful and permanent home—in the United States.
The 1898 decision “concerned children of aliens with a lawful domicile in the United States, not children of temporarily present aliens or illegal aliens,” Sauer argues in the government’s brief.
Because “illegal aliens are not “permitted by the United States to reside here” as contemplated in Wong Kim Ark, he says, “their children do not acquire citizenship by birth.”
Ilan Wurman, a University of Minnesota law professor who filed an amicus brief in support of the executive order, argues that the Trump administration’s view is supported by a 1608 English decision known as Calvin’s Case, which involved a child born in Scotland who was ruled to be an English subject after the union of the crowns under King James VI. The case has long been viewed as the common-law foundation of birthright citizenship in the United States.
Wurman said at the Senate hearing that the English decision indeed stands for the idea that most “aliens from friendly countries” were under the sovereign’s temporary protection in exchange for temporary allegiance. “They were, while in the realm, natural subjects of the king,” he said. “That is why their children born in the realm were natural-born subjects.”
But unlawfully present aliens, such as invading soldiers, “would not have been considered—or certainly may not have been considered—under the protection of the sovereign, and their children may not have been considered birthright subjects or citizens,” he said.
The challengers disagree with this interpretation of Calvin’s Case.
“The government concedes that at English common law, the ‘children of temporarily present aliens were British subjects if born in the United Kingdom,’” the ACLU says in its amicus brief, citing the solicitor general’s brief. “Despite that concession, the government seeks to transform the common-law concept of ‘allegiance’ into support for a domicile requirement.”
That view also appeared to win support from the three justices who dissented in last year’s CASA decision. While the six-justice majority focused on the universal injunction issue without tipping its hand on the underlying question of birthright citizenship, the three dissenters gave a preview of their thinking on the merits.
“The 14th Amendment guarantees birthright citizenship,” Justice Sonia Sotomayor wrote in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. Citing Calvin’s Case, she said “the common-law rule of jus soli (literally, right of the soil) governed English citizenship” and “that English common-law rule carried over to the United States after the founding.”
Concerns over whether order is only prospective
Both sides have strong support from amicus briefs, such as the 25 Republican-leaning states that back the administration; while the U.S. Conference of Catholic Bishops and the American Bar Association, among others, support the challengers.
“The executive order would unsettle and complicate citizenship determinations for millions of Americans,” says the ABA’s brief, adding that the order does not explain how citizenship would be proved for the children of, for example, fathers who are unknown, dead, or not on their birth certificates.
Some supporters of the challengers worry that while the executive order claims to apply only prospectively from its effective date, they aren’t so sure it wouldn’t have retroactive effects.
“The executive order purports to interpret what the citizenship clause has always meant,” Frost, the University of Virginia professor, said at the Senate hearing. “It says it’s restoring the original understanding of the citizenship clause. That clause has been on the books since 1868, so all of us would then be subject to scrutiny of our ancestry.”
She said the administration recognizes that, with the solicitor general observing in his brief that the Supreme Court has sometimes invalidated a citizenship law only prospectively because of “reliance” interests.
Frost added, “They recognize they are arguing for an interpretation that would unwind the citizenship of the nation.”
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