By addressing the matter at all, the court demonstrated that nativists have achieved significant progress.
By addressing the matter at all, the court demonstrated that nativists have achieved significant progress.
On Wednesday morning, the Supreme Court considered arguments in Trump v. Barbara, a case contesting President Donald Trump’s 2025 executive directive prohibiting birthright citizenship. The Justices appeared doubtful of the administration’s reasoning, but by engaging with the topic of birthright citizenship, they highlighted the substantial progress nativists have made since Trump’s initial term. The 14th Amendment plainly 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.” Trump aims to negate this and establish a new, effectively stateless class of Americans, and he has alarmingly advanced in this endeavor.
Shortly after being inaugurated for his second term, Trump released an executive order titled “Protecting the Meaning and Value of American Citizenship.” According to this order, children born to undocumented mothers or those in the country on non-immigrant visas would not automatically gain citizenship at birth, unless their fathers were either citizens or lawful permanent residents. The provisions of this order were set to take effect 30 days post-issuance. It was instantly challenged in court, and multiple federal injunctions hindered its enforcement, maintaining birthright citizenship as the prevailing law for the time being.
Trump’s initiatives revolve around the interpretation of a particular phrase: “subject to the jurisdiction thereof.” The administration argues that noncitizens and individuals lacking permanent residency are not under the jurisdiction of the United States, as they pledge allegiance to a foreign power. This interpretation could overturn not only centuries of US legislation but also precedents established by English common law, leaving hundreds of thousands of children without any legal status or rendered stateless at birth. Karen Tumlin, director of the Justice Action Center, referred to the case as a “canary in the coalmine for our democracy”: If Trump can abolish birthright citizenship with a mere stroke of a pen, then no constitutional safeguard is secure.
Almost all justices, except for the most conservative, appeared unconvinced. Their inquiries predominantly centered around two pivotal rulings. One was Dred Scott v. Sandford, the 1857 case wherein the court determined that enslaved individuals were not citizens — a decision that the 14th Amendment was partly instituted to counteract. The other was United States v. Wong Kim Ark, an 1898 case in which the court decided that, despite the Chinese Exclusion Act, children born in America to Chinese nationals were indeed US citizens.
After Justice Clarence Thomas inquired how the citizenship clause relates to Dred Scott, Sauer conceded that the 1857 ruling “represented one of the worst injustices in this court’s history.” However, he contended that Congress intentionally ratified the 14th Amendment to bestow citizenship upon “newly freed slaves and their offspring” who, according to Sauer, maintained “a domicile relationship” with the United States and no ties to any foreign nation.
Sauer asserted that legislators of the 19th century could not have predicted the birth tourism phenomenon. “There are approximately 500 — 500 — birth tourism agencies in the People’s Republic of China whose enterprise is to bring individuals here to give birth and then return to their country,” Sauer stated. The current understanding of birthright citizenship “could not feasibly have been endorsed by the drafters of this amendment in the 19th century,” he claimed. “We exist in a new era,” he continued, “where eight billion individuals are merely a plane ride away from giving birth to a US citizen.”
Justice Neil Gorsuch, who was interrogating Sauer, appeared not convinced. “It’s a new world,” he conceded, but “it’s the same Constitution.”
Chief Justice John Roberts described Sauer’s examples of existing exceptions — like children of ambassadors or those in the country during a hostile invasion — as “very quirky” and not necessarily parallel to “a whole class of illegal aliens residing within the country.” Justice Elena Kagan pointed out that most of Sauer’s brief centered on individuals temporarily visiting the country on visas — yet Trump’s executive order was evidently aimed at limiting immigration, and the president has openly acknowledged this.
In 2019, Trump labeled birthright citizenship as a “magnet for illegal immigration.” Last year, presidential advisor Stephen Miller commented that the US-born children of immigrants are as significant an issue as the immigrants themselves. “In many of these immigrant communities, the first generation struggles,” Miller stated in a Fox News interview, referring to the Somali-American population, which the administration would soon target in Minneapolis, as an illustration. “You observe ongoing challenges in every following generation. Thus, you witness consistently elevated rates of welfare dependency, consistently high rates of criminal activity, and persistent difficulties in integration.”
The administration has sought to limit legal immigration in all its guises: it imposed a significant fee for H-1B work permits, has hinted it may terminate a work program for international scholars, and enacted a travel ban affecting several nations that is even impacting World Cup athletes. The initiative is blatantly racist. The president infamously complained about “all these individuals from shithole countries” who migrate, expressing a desire for “more individuals from Norway.” Just last year, he reduced the refugee resettlement cap to a mere 7,500 and prioritized resettling white South Africans. The Department of Homeland Security has tied the “homeland” to a distinctly white interpretation of Manifest Destiny that, much like controversies surrounding birthright citizenship, evokes sentiments from the 19th century.
Experts are broadly in agreement that the majority of justices seemed unpersuaded by the administration’s reasoning, yet it remains uncertain how the court will ultimately rule.
Should the court grant Trump an unforeseen victory, a series of ominous questions would arise immediately—beginning with the timing of implementation. The order was intended for enactment on February 19, 2025, 30 days following Trump’s endorsement, and would have commenced if not for various federal injunctions. “If the court aligns with Trump, it must determine a starting date for applying the president’s understanding of the 14th amendment,” César Cuauhtémoc García Hernández, a civil rights and liberties professor at Ohio State University College of Law, told The Verge. “Anyone born on or after that date and referenced in Trump’s directive would be regarded as a migrant instead of a U.S. citizen.”
Sauer urged the court to enforce Trump’s executive order “proactively” and not retroactively, stating that backdating the rule to 2025 would create numerous complications, casting doubt on the citizenship status of millions of children.
The Trump administration strives to limit who qualifies as an American while concurrently advocating policies that obstruct noncitizens from engaging in public life. The administration has made attempts to forbid states from providing in-state tuition for undocumented immigrants residing in those areas, revoked accreditation from centers serving noncitizen truckers, and has broadly sought to transform America into a “papers, please” nation.
Trump was present during Wednesday’s hearings, marking him as the first sitting president to attend oral arguments before the Supreme Court. His attendance may have been intended to pressure skeptical justices into siding with him. Norman Wong, a direct descendant of Wong Kim Ark, was also outside the courthouse, as reported by The New York Times. Wong and his family exemplify the stakes of this case, and he conveyed a message to the justices: “They will be judged by history if they misjudge this.”
