WASHINGTON — The Supreme Court smacked down President Trump’s executive order denying birthright citizenship to children of illegal immigrants and tourists Tuesday, quashing a marquee policy of his for the second time in under five months.
Trump’s day one order had been in limbo amid a legal battle over whether it violated the 14th Amendment, which states: “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 court ruled 5-4 that even those “born in the United States to parents unlawfully or temporarily present” are covered by the equal protection amendment, meaning a change to the Constitution would be required to change their status — the worst-case scenario for the White House.
A sixth justice, Brett Kavanaugh, found that the order did not violate the 14th Amendment, but did violate federal law — and a change in the status of children born to foreigners could be brought about by Congress alone.
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Supreme Court Strikes Down Trump’s Birthright Citizenship Executive Order
In a massive 194-page, 5-4 ruling, the Court affirmed a District Court ruling, holding that Executive Order 14160 – Trump’s attempt to deny automatic citizenship to children born in the U.S. to parents who are undocumented or only temporarily present – violates the Fourteenth Amendment’s Citizenship Clause. Chief Justice Roberts wrote the majority opinion, joined by Sotomayor, Kagan, Barrett, and Jackson.
Justice Kavanaugh provided the sixth vote against the order while explicitly rejecting the majority’s constitutional theory, arguing the EO fails only because it conflicts with a 1940s immigration statute – leaving the door open for Congress, not the Constitution, to revisit the question.
Background
Birthright citizenship – the principle that nearly everyone born on U.S. soil automatically becomes a U.S. citizen – has stood as a foundational element of American law and identity for more than 150 years. Its modern constitutional anchor is the Citizenship Clause of the 14th Amendment, ratified in 1868 after the Civil War: “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 clause was enacted primarily to overturn the Supreme Court’s 1857 Dred Scott v. Sandford decision (which denied citizenship to black people) and to guarantee citizenship to formerly enslaved people and their descendants. It established a clear rule of jus soli (citizenship by birth on the soil) with narrow historical exceptions, such as children of foreign diplomats or members of invading armies.
The Supreme Court’s landmark 1898 decision in United States v. Wong Kim Ark cemented this broad understanding. Wong Kim Ark, born in San Francisco to Chinese parents who were legal residents but ineligible for naturalization under then-existing exclusionary laws, was ruled a U.S. citizen. Justice Horace Gray’s majority opinion affirmed that the 14th Amendment codifies “the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country,” applying to children of resident aliens without regard to race or the precise immigration status of the parents (beyond the traditional exceptions).
For well over a century, this interpretation has governed practice: federal agencies, courts, and both political parties treated birth on U.S. soil as conferring citizenship almost universally, regardless of whether a parent was undocumented, a temporary visa holder, or a lawful permanent resident.
The Modern Challenges
In recent decades, conservatives, immigration restriction advocates, and President Donald Trump have advanced a narrower reading. They argue that “subject to the jurisdiction thereof” requires a deeper form of political allegiance or domicile – essentially limiting automatic citizenship to children of U.S. citizens or lawful permanent residents. In short: the clause was chiefly meant for freed slaves and their children, that extending it to children of undocumented immigrants creates “anchor babies,” encourages illegal immigration and birth tourism, and imposes costs on the country. They point to certain 19th-century commentaries and historical practices in other nations as support.
On January 20, 2025 – his first day in office for his second term – President Trump signed Executive Order 14160, “Protecting the Meaning and Value of American Citizenship.” The order directs federal agencies not to recognize U.S. citizenship for children born in the United States after February 20, 2025, in two main scenarios:
- The mother was unlawfully present in the U.S. and the father is neither a U.S. citizen nor a lawful permanent resident (LPR/green card holder); or
- The mother’s presence was lawful but temporary (e.g., student, work, or tourist visa) and the father is neither a citizen nor LPR.
The administration maintains this is consistent with the 14th Amendment’s original meaning and with the statutory codification in 8 U.S.C. § 1401(a), which largely tracks the constitutional language.
The Path to the Supreme Court
The order never took effect. Federal district courts in multiple jurisdictions quickly struck it down as unconstitutional, with one judge describing it as “blatantly unconstitutional.” In June 2025, the Supreme Court addressed related procedural issues in Trump v. CASA (and companion cases), ruling 6-3 that district courts generally lack authority to issue universal/nationwide injunctions. This narrowed some protections but left the core constitutional question unresolved.
Today’s SCOTUS case, Trump v. Barbara (No. 25-365), stemmed from a class-action lawsuit filed in the U.S. District Court for the District of New Hampshire. Plaintiffs include families challenging the order on behalf of themselves and a nationwide class of affected children. One named representative is “Barbara,” a Honduran asylum applicant whose child was due in late 2025; other plaintiffs include individuals on temporary visas (e.g., a Taiwanese student whose daughter was born in April 2025) and a Brazilian applicant for permanent residence whose son was born in March 2025. The district court issued a preliminary injunction and provisionally certified a nationwide class, finding the plaintiffs likely to succeed on the merits. The Supreme Court granted certiorari before judgment from the First Circuit.
During oral arguments held April 1, U.S. Solicitor General D. John Sauer defended the order – emphasizing historical sources, the role of “domicile” in Wong Kim Ark, and contemporary policy concerns. Plaintiffs’ counsel Cecillia Wang urged the Court to reaffirm Wong Kim Ark as establishing a fixed, bright-line rule rooted in text, history, and longstanding practice.
Questioning from the justices spanned the ideological spectrum and focused heavily on Wong Kim Ark, the meaning of “subject to the jurisdiction thereof,” and whether the government’s proposed limitations could be squared with precedent and the amendment’s text. Observers noted significant skepticism toward the administration’s position, with several justices highlighting the breadth of the 1898 ruling and questioning efforts to distinguish it or limit its application based on parental status. A decision was widely expected by the end of the Court’s term (June 30, 2026) or shortly thereafter.
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Justice Alito: Birthright Citizenship Is ‘Grotesque’
“This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake,” Justice Samuel Alito wrote in his dissent to the Supreme Court’s 5-4 decision to insert birthright citizenship into Americans’ Constitution.
He continued in plain language to show how the decision endorses birth tourism, which would automatically grant full citizenship to foreign adults who have never lived a full day in the United States:
The Court’s interpretation is not only contrary to the original meaning of the Fourteenth Amendment, it produces grotesque results. While foreigners who wish to immigrate lawfully must sometimes wait for many years, a child born here to a birth tourist is automatically a citizen.
The Court’s interpretation also has national-security implications… Suppose that a person’s only connection to this country is that he was born here to a mother who was present just long enough to give birth and then quickly returned to her native country. Suppose that country is a strategic adversary or enemy of the United States. Suppose the child never visited the United States while growing up and was inculcated with hatred of this country. According to the Court, that person is a citizen of the United States. He can enter and leave the country as he pleases. He can travel the world on a United States passport. Even if he plots to harm this country, he cannot be deprived of his status as a citizen, at least under current precedent.
“We should not adopt an erroneous interpretation of the Fourteenth Amendment simply out of fear of the consequences of ‘rocking the boat’ or as a reaction to current immigration policy,” he wrote.
Many children are born to foreign parents who are “subject to a foreign power,” which should make their children ineligible for citizenship, Alito noted:
A great many persons who are born here to illegal immigrant parents fail this [subject to foreign power] test because at birth they are automatically made nationals of their parents’ native country and, as a result, incur duties to that country. This means that they are “subject to a foreign power” and are thus not “subject to the jurisdiction” of the United States within the meaning of the Fourteenth Amendment.
This is illustrated by the laws of countries on the list of those from which the greatest number of illegal immigrants come. Mexico is at the top of that list, and under Mexico’s constitution, the child of a Mexican parent can become a Mexican national at birth and acquires certain duties to the government. See Political Constitution of the United Mexican States… Among these are the obligation to receive military training and to join the National Guard.
Alito explained his views:
Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.
Respecting this interpretation would not require uprooting the millions of children who were born here to mothers who entered or remained in this country illegally. Those children are not responsible for their parents’ violation of our immigration laws, and their plight is the result of a long period during which a coterie of actors — Executive Branch officials, States and cities, and a variety of private groups — sent the message to would-be immigrants that our dissenting immigration laws should not be taken too seriously.
Alito’s dissent echoed the dissent of Justice Clarence Thomas, who argued that the court’s majority’s imposition is a “political project” built on medieval feudal laws from pre-modern Europe. Alito similarly wrote:
United States citizenship is precious. Anyone who has attended a ceremony where citizens are naturalized can see that message on the faces of those who take the citizenship oath. Before saddling the Nation with a medieval rule, we had better be certain the Constitution requires it.
…
This theory of monarchical power and the status of the people provided the foundation on which the rule of birthright subjecthood stood. Just as a person automatically acquires at birth all that is entailed by the relationship between parent and child, a person born within the King’s dominion automatically became the King’s subject.
…
The Court does not confront these problems because it pays little attention to the constitutional text. Instead of performing its own textual analysis, the Court leans on precedent that glosses the text.
Recent U.S. governments have allowed mass illegal migration and abuse of the birthright citizenship clause by refusing to enforce the nation’s immigration laws, Alito said, adding:
Congress’s failure to act, the Executive Branch’s enforcement policies and frequent opposition to state solutions, and some jurisdictions’ policies have resulted in a massive increase in the number of illegal immigrants living in this country… Between July 2023 and March 2024, the overall foreign-born population of the United States increased from 48.5 million to 51.6 million — “an unprecedented increase of 3 million immigrants in nine months. Much of this growth was driven by the admission of unauthorized immigrants with temporary deportation protections.”
As a result of the events of the past 50 years, the United States now has a huge contingent of people who entered or remained in this country illegally, as well as a large group of people who were born here to such parents. The Court’s interpretation of the Fourteenth Amendment makes all the members of this latter group citizens.
“The Fourteenth Amendment does not include the rule the Court now imposes on the country,” Alito wrote, adding, “In my judgment, the Court has made a mistake that will seriously affect the country’s future.”
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