The Supreme Court appeared skeptical on Wednesday of President Trump’s attempt to end birthright citizenship, with even conservative justices questioning whether he has the power to unilaterally overturn the longstanding constitutional principle that guarantees citizenship to all children born in the United States.
Trump took the unprecedented step of attending the arguments in person, something no other sitting president has ever done. He left about 90 minutes into the arguments.
The case, Trump v. Barbara, centers around an executive order signed by Trump on the first day of his second term in 2025. In that order, the president attempted to establish, for the first time, a category of children who will not automatically become citizens if they’re born within U.S. borders. The Trump administration’s argument that citizenship rights should only be available to certain people born in America runs directly counter to the way courts have interpreted birthright citizenship since it was first established more than 150 years ago.
Almost immediately after it was signed, a series of lawsuits were filed challenging the constitutionality of Trump’s order. The policy was quickly blocked by lower courts and has been put on hold until the Supreme Court makes its final ruling.
With all three liberal justices firmly against Trump’s position, his administration would need five of the six conservatives on its side for the order to be allowed to stand. During oral arguments, several conservative justices asked the administration’s attorney, Solicitor General D. John Sauer, tough questions about the legal reasoning that the order relies on.
Toward the end of the arguments, Justice Brett Kavanaugh, a key swing vote in many closely contested cases, suggested that the court may only need a “short opinion” to block Trump’s order.
Oral arguments don’t always predict the final outcome, but many legal experts felt that the justices’ questions on Wednesday indicated that the court is likely to reject Trump’s order when it releases its ruling this summer.
Here’s what you need to know about birthright citizenship, how Trump is trying to change it and what it will mean if the nation’s top court rules in his favor.
What is birthright citizenship?
Birthright citizenship is a policy that grants U.S. citizenship to anyone who is born inside the United States, regardless of their background or the immigration status of their parents.
Why was birthright citizenship created?
In the aftermath of the Civil War, there was intense disagreement over the legal status of freed slaves living in the U.S. In its infamous 1857 decision in Dred Scott v. Sandford, the Supreme Court ruled that Black people of African descent could not become citizens. Congress passed and ratified the 14th Amendment in 1868 in part to overturn that decision and grant citizenship to anyone born in the U.S.
How is Trump trying to change birthright citizenship?
Trump’s order wouldn’t eliminate birthright citizenship entirely, but it would create a group of children who do not automatically become citizens when they’re born in the U.S. Under the terms of the order, a baby’s citizenship would be decided by the legal status of its parents. Children born to mothers who are in the country illegally or who are legally present on a temporary visa would not be granted citizenship unless their father is a citizen or legal permanent resident.
What legal argument is Trump using to try to change birthright citizenship?
The 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Historically, the Supreme Court has interpreted “subject to the jurisdiction” to mean that someone is bound by U.S. law, which is true of everyone inside the country. The administration believes this longstanding way of defining jurisdiction is wrong. It argues that foreign nationals who are not legal permanent residents or citizens are not “completely subject” to U.S. jurisdiction because they owe their “primary allegiance” to another nation.
Trump’s lawyers also argue that birthright citizenship was only originally intended to apply to the specific case of Black slaves and that past court rulings erred in applying it to everyone born in the U.S.
What happened during oral arguments?
Much of the discussion during oral arguments centered around a ruling issued 30 years after the 14th Amendment was ratified that effectively codified the meaning of birthright citizenship as it stands today. Sauer argued that the decision was “totally unambiguous” and only applies to people who are in the U.S. permanently — a view that runs against how the case has been interpreted historically. Some of the conservatives on the court appeared unconvinced.
“Why wouldn’t we … come to the conclusion that the fact that someone might be illegal is immaterial?” Justice Neil Gorsuch asked.
Chief Justice John Roberts also seemed to doubt the administration’s arguments, referring to them as “very quirky.” He specifically dismissed the administration’s assertion that the very limited exceptions to birthright citizenship that had been created by past courts could be applied to anyone who’s not in the country permanently.
“You know, children of ambassadors, children of enemies during a hostile invasion, children on warships … And then you expand it to the whole class of illegal aliens are here in the country,” he said. “I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”
Roberts also pushed back when Sauer argued that we’re in a “new world” where the implications of allowing anyone born in the U.S. to have citizenship are very different from when the 14th Amendment was written.
“It’s a new world. It’s the same Constitution,” he said.
The only conservative justice who gave clear evidence that he may be sympathetic to the administration’s arguments was Sam Alito, who repeatedly pressed A.C.L.U. lawyer Cecilia Wang about details of past cases that could allow for limiting birthright citizenship.
Oral arguments can sometimes give a misleading impression of where the justices stand on a specific issue, but Wednesday’s debate gave strong reason to believe that there are at least five votes to block Trump’s executive order.
What would the impact be if Trump’s side won?
In 2023, there were an estimated 20 million people living in the U.S. whose children would not become citizens under Trump’s order — roughly 14 million undocumented immigrants and around 6 million people with temporary legal status.
If Trump’s order is allowed to stand, about 255,000 babies born in the U.S. each year would be denied citizenship rights that they would otherwise have, according to an estimate by the Migration Policy Institute and Penn State’s Population Research Institute. Those children would instantly become undocumented immigrants. Some may also be “rendered stateless” by having no legal claim to reside in any country, according to the Brennan Center for Justice.
Experts say the end of universal birthright citizenship will affect all babies born in the U.S. because parents will now have to prove that their child qualifies for citizenship.
“We would essentially need a new federal bureaucracy to adjudicate the citizenship of newborns,” Stephen Yale-Loehr, an expert in immigration law, told USA Today.
Those extra bureaucratic steps could create barriers that prevent families from accessing benefits that they’re entitled to.
“If you say, ‘Well, we don’t know if the baby is a citizen,’ it is highly questionable whether babies will then have Medicaid, SNAP, WIC [food benefits], any access to these critical programs at the most vulnerable time in any of our lives,” Bill Lesley, the president of First Focus on Children, told NPR.
When will the final decision be released?
The Supreme Court doesn’t issue its rulings on any set schedule. But based on its typical timeline, the final decision will likely come out around the end of June or the beginning of July.
