The Supreme Court will hear arguments Wednesday in a case likely to produce a historic ruling: whether the 14th Amendment’s guarantee of citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction thereof” covers every child born on U.S. soil. The case arises from President Trump’s executive order, issued on the first day of his second term, that seeks to bar automatic citizenship for babies born in the U.S. to parents who entered the country unlawfully or who are here on temporary visas.
Trump has repeatedly argued that the Constitution does not guarantee birthright citizenship as broadly as courts have interpreted it, saying the 14th Amendment was meant to protect the children of former slaves, not “the entire world.” Critics note that many countries, including Canada, Mexico, Brazil and Argentina, also recognize birthright citizenship.
To understand the dispute, legal historians point back to the post–Civil War era. The 14th Amendment was adopted to overturn Dred Scott, which held that Black people could not be citizens. Its citizenship clause was intended to create a clear rule: children born in the United States would be citizens. University of Virginia law professor Amanda Frost emphasizes that Congress sought a bright-line definition that would encompass former slaves’ children and immigrants’ children alike.
The key precedent is the 1898 Supreme Court decision in United States v. Wong Kim Ark. Wong was born in San Francisco in 1873 to Chinese parents who later returned to China; when he tried to re-enter the U.S., authorities denied his return on the theory he was not a citizen. The Court, 6–2, held that someone born in the United States to parents who were subject to U.S. jurisdiction is a citizen. The opinion noted only a few exceptions—children of foreign diplomats, occupying armies, and Native American tribes—of which only the diplomatic exception remains relevant today.
The Trump administration argues Wong’s parents, though of Chinese origin, effectively had permanent residence and were subject to U.S. jurisdiction, distinguishing that case from children of parents who entered illegally or held only temporary status. Advocates for the administration, including Daniel Epstein of America First Legal, contend citizenship should turn on parental allegiance to the United States, arguing that unlawful entry demonstrates a lack of allegiance and that birth tourism and other abuses justify limiting the rule.
Opponents, including the ACLU’s Cecillia Wang, say the executive order attempts a radical rewrite of the Constitution by executive fiat. They stress that the 14th Amendment confers citizenship on the child, not the parent, reflecting a longstanding principle that children are not punished for their parents’ conduct. Wang and others warn that stripping birthright citizenship by executive order would immediately render tens of thousands of U.S.-born children noncitizens each month and could create a permanent, possibly stateless underclass if parents’ home countries do not recognize them.
Historical practice supports the broad reading: during World War II, children born in detention camps to Japanese Americans were still recognized as citizens; Congress later codified understandings consistent with birthright citizenship through mid-20th-century legislation. The U.S. Conference of Catholic Bishops and other faith groups also warn of humanitarian and legal consequences if birthright citizenship is eliminated.
Policy arguments feature on both sides. Supporters of limiting birthright citizenship, including Senator Ted Cruz and other Republican lawmakers, call it an incentive for illegal immigration and say it rewards breaking immigration law. Critics point to data showing “birth tourism” births are a small share of the roughly 3.6 million U.S. births a year—estimates place birth tourism at roughly 20,000–26,000 births annually—and argue that eliminating birthright citizenship would produce larger, counterintuitive effects, such as increasing the undocumented population by making children and future generations ineligible for legal status. Penn State’s Population Research Institute projects repeal could add millions to the undocumented population by 2045.
Practical questions also loom. How would hospitals, states and federal agencies determine a newborn’s citizenship status at birth? What documentation would be required, and who would enforce such rules? Justice Brett Kavanaugh raised such concerns in a related case, and the Trump administration’s solicitor general has responded that federal officials would have to figure out the logistics.
At the Court, justices are expected to revisit Wong Kim Ark and other precedents that have shaped 160 years of practice. The outcome could resolve whether an executive order can effectively alter the meaning of a constitutional amendment ratified by a post–Civil War Congress and by the states, or whether the 14th Amendment’s citizenship clause remains the bright-line rule that has long governed citizenship at birth in the United States.