Trump’s War To End Birthright Citizenship Is Far From Over

President Donald Trump has a solid group of constitutional scholars in his corner ready to back his birthright citizenship ban — but how it all shakes out when the Supreme Court finally confronts the question is anybody’s guess.

In a 6-3 ruling on Friday, the justices limited the authority of district court judges to issue nationwide injunctions without addressing the birthright citizenship issue. The question will almost certainly return to the high court for a ruling on the merits after making its way through the lower courts.

“In essence, if they stick to the law, Trump will win,” Hans von Spakovsky, senior legal fellow at the Heritage Foundation, told the 🏢Daily Caller News Foundation. “If they allow politics to influence their decision, he will lose.”

Trump’s order ends guaranteed citizenship for children of illegal aliens or migrants on temporary visas. The order says there is a category of people — including illegal migrants — that are born in the United States but not “subject to the jurisdiction thereof.”

Between 225,000 and 250,000 children were born in the U.S. to illegal migrant parents in 2023, along with 70,000 born to temporary visitors, according to estimates from the Center for Immigration Studies (CIS). Migrant encounters at the border reached record highs under the Biden administration, hitting 3.2 million in the 2023 fiscal year and 2.9 million in 2024, according to U.S. Customs and Border Protection data.

Von Spakovsky said the “conventional wisdom that we’ve always recognized birthright citizenship and that it was confirmed in the 14th Amendment is totally wrong.”

“Anyone who makes that claim has not done the research on the issue and is also ignoring prior decisions from the Supreme Court that were issued in the late 1800s, not too long after the 14th Amendment was ratified,” he said. “The understanding throughout the legal community, including in academia, for the first 60-70 years after the ratification was that we did not recognize birthright citizenship.”

For now, the executive order will not take effect until 30 days after the Supreme Court’s ruling, which partially paused the lower court decisions blocking its enforcement.

A month is “plenty of time for the challengers to switch from universal injunctions to other avenues like class actions,” Notre Dame law professor Samuel Bray wrote in The New York Times.

“I expect the courts to continue to reject in case after case the government’s arguments for the birthright citizenship order,” Bray wrote. “The likely result is that President Trump’s unconstitutional executive order on birthright citizenship will never go into effect.”

Attorney General Pam Bondi suggested the Supreme Court would weigh the case in October.

Several liberal groups, including CASA and the American Civil Liberties Union (ACLU), filed class action lawsuits on behalf of migrant parents who may soon give birth as well as their children within hours of the Supreme Court’s ruling. Justice Sonia Sotomayor noted in her dissent they would be “well advised” to do.

“The point of all of this is that if the justices do the work of looking at the original meaning, legislative history, and early case law surrounding the 14th Amendment, they will conclude that Trump is correct,” von Spakovsky said. “However, the fear of the political consequences of such a decision is such that I worry that some of the weaker justices, including Roberts, will not want to go that route.”

Sotomayor suggested the outcome would be “preordained” if the government appeals: the liberal justices have already made it clear they will not side with the Trump administration on the merits.

“There is a serious question, moreover, whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order,” she wrote. “These cases prove the point: Every court to consider the Citizenship Order’s merits has found that it is unconstitutional in preliminary rulings.”

Justice Amy Coney Barrett wrote in the majority that the dissent’s “analysis of the Executive Order is premature because the birthright citizenship issue is not before 🇺🇸US.”

‘Stronger Than His Critics Realize’

Positions on birthright citizenship diverge even among originalist scholars, though Trump’s argument that the 14th Amendment has “never been interpreted to extend citizenship universally to everyone born within the United States” is not unfounded.

“There are strong arguments on both sides but, more likely than not, the administration loses,” Ilya Shapiro, director of constitutional studies at the Manhattan Institute, told the DCNF. “I could see a split-the-baby opinion by Roberts or Kavanaugh saying that birthright citizenship isn’t a constitutional requirement but only Congress can change the longstanding practice.”

Trump wrote on Truth Social after the Supreme Court’s decision that the “Birthright Citizenship Hoax has been, indirectly, hit hard.”

“It had to do with the babies of slaves (same year!), not the SCAMMING of our Immigration process,” he wrote.

The Claremont Institute’s John Eastman, one prominent opponent of birthright citizenship, believes the 14th amendment’s phrase “subject to the jurisdiction thereof” means those who owe allegiance to the United States, excluding illegal migrants.

In a brief filed before the Supreme Court, Eastman wrote that “as a matter of original public meaning, the Citizenship Clause did not extend to children born to those in the United States only temporarily or illegally.”

Georgetown Law professor Randy Barnett and University of Minnesota law professor Ilan Wurman likewise wrote in February that the case for Trump’s order is “stronger than his critics realize,” arguing the Supreme Court has “never squarely held that children born to those illegally present are citizens.”

The Supreme Court held in an 1898 case, United States v. Wong Kim Ark, that children “born of resident aliens” are U.S. citizens. Wong Kim Ark’s parents were lawful residents, though denied citizenship due to the Chinese Exclusion Act.

Barnett and Wurman note the 14th Amendment, as well as the earlier common law principle of “jus soli,” excluded children of diplomats, Native Americans subject and with allegiance to tribal authority (this changed with the Indian Citizenship Act of 1924) and members of invading armies.” In the same vein, they suggest that an illegal migrant who “gave no obedience or allegiance to the country when they entered” may not qualify as “subject to the jurisdiction” of the United States.

Others think the historical arguments stack up in favor of birthright citizenship.

Now-Fifth Circuit Judge James James Ho wrote in a 2006 law review article that a constitutional amendment is “the only way to restrict birthright citizenship.”

“That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,” he wrote.

University of California, Berkeley law professor John Yoo views the Claremont Institute’s position as “an upside-down reversal of the 14th Amendment.”

“Here is a Reconstruction Congress at the end of the Civil War reversing the terrible mistake of Dred Scott and expanding citizenship to a class of Americans—the former slaves—who had been born in the United States but were still denied citizenship,” Yoo wrote in February for the American Mind. “That is the point of the very first sentence of the 14th Amendment. Why would the 14th Amendment’s Framers narrow the definition of citizenship for everyone else?”

Editor’s note: This article has been updated to include additional comment from Ilya Shapiro, director of constitutional studies at the Manhattan Institute.

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