The US Supreme Court could rule on birthright citizenship as early as next week.
US Border News is republishing the following article filed as the court heard arguments on the matter in April, to provide our readers with background on the issues to be decided before the court.
(This article was written by Ariana Figueroa of the non-profit States Newsroom DC Bureau & is republished by US Border News with permission under Creative Commons license CC BY-NC-ND 4.0.)
The U.S. Supreme Court on Wednesday, April 1, 2026, seemed poised to reject the Trump administration’s attempt to redefine the constitutional right to birthright citizenship, and instead uphold the country’s long understanding of citizenship by birth on American soil.
If a majority of Supreme Court justices strikes down President Donald Trump’s executive order to end birthright citizenship for children born to parents without legal status or temporary immigration statuses like visas, it will be the second recent major blow to the president via the high court. Earlier this year, a majority of justices struck down his use of sweeping tariffs.
Trump, who signed the executive order aiming to end birthright citizenship as one of his first acts after his inauguration in 2025, came to the courtroom to hear the oral arguments, a first for a sitting president.
‘Quirky’ administration argument
A majority of the justices during April’s oral arguments were skeptical of Solicitor General D. John Sauer’s arguments that the citizenship clause of the Constitution’s 14th Amendment was only intended to grant citizenship to the children of newly freed African American slaves, not immigrants.
Chief Justice John Roberts called one of Sauer’s key arguments “quirky,” and questioned how it could be applied to an entire class of immigrants without legal status.
Sauer argued that the children born to parents without legal status or temporary visitors are not “subject to the jurisdiction of the United States” and are instead subject to the laws of their home country. He cited carve outs in birthright citizenship, such as the children born to foreign diplomats.
“You expand it to a whole class of illegal aliens,” Roberts said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”
Along with Roberts, the liberal wing of the court and conservative Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett also did not seem swayed by Sauer’s argument.
Gorsuch asked Sauer if, under the Trump administration’s interpretation of the 14th Amendment, Native Americans would be considered birthright citizens “under your test.”
“Uh, I think so,” Sauer said.
Indigenous people were granted U.S. citizenship by Congress in 1924, but were not granted citizenship under the 14th Amendment because those children were born to parents who were citizens of tribal governments.
Sauer also contended the 1898 Supreme Court ruling that upheld citizenship based on birth on American soil, United States v. Wong Kim Ark, was wrongly decided.
He argued that the Wong Kim Ark case did not take into consideration “sojourn travelers,” who are temporary visitors in the U.S. and give birth.
Sauer also said the Trump administration was not looking for the justices to overturn that case.
ACLU arguments
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Liberal justice Elena Kagan said that Sauer’s argument to the court was an effort to create a “revisionist history” of the Wong Kim Ark case.
“Everyone took Wong Kim Ark to say that, as a result of that, birthright citizenship was the rule,” she said. “And I think everybody has believed that for a long, long time.”
American Civil Liberties Union lead attorney Cecillia Wang said during oral arguments that when the federal government tried to strip Ark of his citizenship, “largely on the same grounds (the Trump administration) raised today,” the Supreme Court rejected those efforts.
“This Court held that the 14th Amendment embodies the English common law rule (that) virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen,” said Wang, who is the daughter of Taiwanese immigrants.
Her parents were in the U.S. on student visas when she was born in Oregon, meaning that if Trump’s executive order were in effect at that time, she would have been denied U.S. citizenship.
“Ask any American what our citizenship rule is and they’ll tell you, everyone born here is a citizen alike,” Wang said. “That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”
Birthright citizenship has been a longstanding core principle in the United States, where nearly any child — regardless of their parents’ immigration status — born on U.S. soil is automatically granted citizenship.
The text of the clause is: “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.”
Experts have warned that if the constitutional right to birthright citizenship were struck down, it would effectively create a class of millions of stateless people, leaving them without a country to call home.
If the high court determines that Trump violated the Constitution with his executive order, it would be a major block to the president’s goal in defining who is American, as Trump has aimed to reshape the country’s racial and ethnic makeup through limits to migration and an aggressive immigration campaign of mass deportations.
A decision from the high court on the case, Trump v. Barbara, is likely not going to come until the end of the court term, in late June or early July. If the court decides to uphold the executive order, it would go into effect 30 days after the ruling.
New world, old Constitution
Sauer argued that birthright citizenship should not be applied to children of temporary visitors, such as foreigners who partake in what opponents call “birth tourism.”
Roberts asked Sauer how much of an issue birth tourism is – the idea that foreign visitors specifically travel to the U.S. for the purpose of giving birth and obtaining citizenship for their soon-to-be born children.
“No one knows for sure,” Sauer said, citing media reports that many Chinese tourists travel to the U.S. and give birth.
However, China does not allow its citizens to have dual citizenship.
Roberts seemed skeptical that birth tourism should be considered in Sauer’s legal arguments for the purpose of restricting birthright citizenship. He told Sauer that birth tourism “wasn’t an issue in the 19th century.”
“We’re in a new world now,” Sauer said. “Where 8 billion people are one plane ride away from having a child as a U.S. citizen.”
But Roberts shot back, “Well, it’s a new world, it’s the same Constitution.”
Other countries
Sauer also argued that the U.S. should fall in line with the citizenship laws of other countries.
“Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations,” he said. “It demeans the priceless and profound gift of American citizenship.”
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Kavanaugh questioned why the U.S. should worry about the citizenship requirements of other countries.
“Obviously we try to interpret American law with American precedent based on American history,” Kavanaugh said. “I’m not seeing the relevance as a legal, constitutional interpretive matter necessarily, although I understand it’s a very good point.”
Shortly after oral arguments ended, Trump took to his social media site, Truth Social, where he falsely said the U.S. is the only country to have birthright citizenship. Argentina, Brazil, Canada and Mexico are among several countries that have birthright citizenship.
“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” he wrote.
Trump left Wednesday’s oral arguments after Sauer was finished presenting his argument to the justices, and about a few minutes into arguments from the ACLU’s Wang, according to White House pool reports. Oral arguments lasted for about two-and-a-half hours.
Earlier decision
This is the second time the Trump administration has brought a birthright citizenship case before the justices.
Last year, after federal judges in Maryland, Massachusetts, New Hampshire and Washington state struck down the president’s executive order, the Trump administration appealed to the Supreme Court, but asked the justices to consider the lower courts’ use of universal injunctions, rather than the merits of birthright citizenship.
The justices took up the case, and in a 6-3 vote divided along ideological lines, the use of universal injunctions was curtailed by the conservative wing of the high court.
After the ruling, immigration advocates and the ACLU filed class action suits, which were successful in blocking the birthright citizenship executive order. The suits argued that future children born in the United States without gaining citizenship constituted a nationwide class.
“If you credit the government’s theory, the citizenship of millions of Americans past, present and future could be called into question,” Wang said.
(This article was originally published by the DC Bureau of the States Newsroom, the nation’s largest state-focused nonprofit news organization, and is republished by US Border News with permission.)
What are your thoughts about birthright citizenship?
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Abrazos,
Jack Beavers
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Jack, I hope the Supreme Court will stop immigration birthright citizenship. We all know what the original intent of the "birthright " citizenship.