There are moments in the life of the Republic when the meaning of its most fundamental charters is summoned before the bar of law and asked to defend itself — not against foreign adversary or armed insurrection, but against the interpretive ambitions of the very government those charters were written to restrain. Such a moment arrived this term at the Supreme Court of the United States, where the Justices heard oral arguments in a case that strikes at the bedrock of American constitutional identity: whether the President of the United States may, by executive decree, abolish birthright citizenship for children born on American soil to parents who lack lawful immigration status.
The case arises from an executive order signed by President Donald Trump on January 20, 2025 — the first day of his second term — directing federal agencies to refuse recognition of citizenship for children born in the United States to mothers who were unlawfully present or whose fathers were not citizens or lawful permanent residents. The order, styled as a reinterpretation of the Fourteenth Amendment’s Citizenship Clause, was immediately challenged by a coalition of states, civil rights organizations, and affected individuals. Within weeks, a federal district judge in Seattle, Judge John C. Coughenour — a Reagan appointee — issued a temporary restraining order blocking the policy, calling it ‘blatantly unconstitutional.’ Additional injunctions followed from federal courts in Maryland, Massachusetts, and elsewhere. The United States Court of Appeals for the Ninth Circuit upheld the injunction, and the case was expedited to the Supreme Court on a writ of certiorari.
The constitutional text at issue is the first sentence of Section One of the Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War: ‘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.’ For more than a century and a half, this clause has been understood — by Congress, by courts, and by the executive branch — to confer citizenship upon virtually all persons born within the territorial boundaries of the nation. The Supreme Court’s 1898 decision in United States v. Wong Kim Ark, which held that a child born in San Francisco to Chinese immigrant parents was a citizen by birth, has served as the controlling precedent, one that no subsequent Court has disturbed.
The Trump administration’s argument rests upon a narrow reading of the phrase ‘subject to the jurisdiction thereof,’ contending that it excludes persons who have not submitted themselves to the complete and lawful authority of the United States — a category the government defines to include undocumented immigrants. This interpretation draws upon the writings of a small but vocal cohort of legal scholars, most notably former Judge Michael Anton and Professor John Eastman, who have argued that the framers of the Fourteenth Amendment intended to exclude from its grant of citizenship the children of persons who owed allegiance to a foreign sovereign. The government’s brief invokes fragments of the 1866 congressional debate, particularly remarks by Senator Lyman Trumbull and Senator Jacob Howard, suggesting that ‘subject to the jurisdiction’ meant ‘not subject to any foreign power.’
This reading, however, confronts formidable obstacles in text, history, and precedent. The phrase ‘subject to the jurisdiction thereof’ was understood at the time of ratification to exclude only narrow categories of persons: children born to foreign diplomats enjoying immunity from American law, children born to members of occupying enemy forces, and members of Native American tribes governed by their own sovereign nations — a status later resolved by the Indian Citizenship Act of 1924. Undocumented immigrants, whatever the irregularity of their entry, are indisputably subject to American jurisdiction in the most concrete sense: they may be arrested, prosecuted, taxed, and tried in American courts. To argue otherwise is to suggest that the government simultaneously claims the power to deport, detain, and punish such individuals while asserting they are beyond its jurisdiction — a contradiction that borders on the absurd.
During oral arguments, the Justices probed both sides with characteristic rigor. Justice Ketanji Brown Jackson pressed the Solicitor General on whether the government’s reading would not effectively render the Citizenship Clause a nullity, since Congress could simply redefine ‘jurisdiction’ to exclude any disfavored group. Justice Neil Gorsuch, a textualist, questioned whether the executive branch possessed the constitutional authority to reinterpret an amendment whose meaning had been settled by the judiciary for over a century. Even Justice Samuel Alito, often sympathetic to executive power in matters of immigration, appeared skeptical of the mechanism employed, noting that an executive order cannot amend the Constitution. Chief Justice John Roberts, whose institutionalist tendencies have shaped the Court’s recent jurisprudence, asked whether the government’s position was distinguishable from a request that the Court overrule Wong Kim Ark — a step the administration’s brief carefully avoided requesting but which its logic would seem to require.
The stakes of the case extend far beyond the immediate legal question. Birthright citizenship is not an incidental feature of American law; it is the constitutional repudiation of Dred Scott v. Sandford, the 1857 decision in which Chief Justice Roger Taney declared that persons of African descent could never be citizens of the United States. The Fourteenth Amendment was written in the blood of six hundred thousand dead to ensure that citizenship in this Republic would not be a grant of privilege dispensed by the powerful to the compliant, but a right inhering in the fact of birth upon this soil. To permit its abrogation by executive fiat — without the supermajority consensus required by Article V’s amendment process — would represent an alteration in the constitutional order of the first magnitude.
It is worth noting, too, the practical consequences that would attend the government’s position should it prevail. The executive order, if enforced, would create for the first time in American history a class of persons born in the United States who are citizens of no nation — stateless from the moment of their first breath. International law, codified in the 1961 Convention on the Reduction of Statelessness, to which the United States is not a party but whose principles it has historically respected, regards the creation of statelessness as among the gravest of governmental offenses against human dignity. The children affected would be denied passports, unable to work lawfully, ineligible for federal benefits, and vulnerable to deportation to countries with which they have no connection. The order would, in effect, create an American underclass defined not by conduct but by parentage — a concept the Fourteenth Amendment was designed expressly to destroy.
Legal scholars across the ideological spectrum have expressed deep reservations about the executive order’s constitutionality. Professor Ilya Somin of George Mason University, a libertarian-leaning scholar hardly sympathetic to expansive government, has called the order ‘clearly unconstitutional under existing precedent and under the original meaning of the Fourteenth Amendment.’ The Federalist Society, while hosting debates on the question, has seen several of its prominent members publicly distance themselves from the administration’s interpretation. The American Bar Association filed an amicus brief opposing the order, as did a bipartisan group of former attorneys general and constitutional law professors from Harvard, Yale, Stanford, and the University of Chicago.
The administration’s defenders argue that the question of birthright citizenship for children of undocumented immigrants has never been squarely presented to the Supreme Court, since Wong Kim Ark involved the child of lawful permanent residents. This is technically accurate but substantively misleading. The Court’s reasoning in Wong Kim Ark was not confined to the children of legal residents; it articulated a broad principle rooted in the English common law of jus soli — the right of the soil — holding that birth within the dominion of the sovereign conferred allegiance and, correspondingly, the rights of citizenship. The opinion explicitly addressed the scope of ‘subject to the jurisdiction thereof’ and concluded it encompassed all persons within the territory except those in the narrowly defined excluded categories. To carve out a new exception 128 years later, on the basis of immigration status categories that did not exist when the amendment was ratified, would require not interpretation but invention.
A decision is expected by the end of the Court’s term in late June. The conventional wisdom among Court observers is that the executive order will not survive, though the margin and reasoning remain uncertain. A narrow ruling could hold simply that an executive order is an improper vehicle for so consequential a constitutional reinterpretation, leaving open the theoretical possibility of congressional action. A broader ruling could reaffirm Wong Kim Ark in terms that foreclose future legislative attempts. The distinction matters enormously, for it will determine whether this case closes the question or merely adjourns it.
What ought not be adjourned is the Republic’s reckoning with the principle at stake. The Fourteenth Amendment was not written in the language of ambiguity. It was written in the language of command. ‘All persons born’ — not some persons, not favored persons, not persons whose parents arrived through approved channels — ‘are citizens.’ The framers of Reconstruction understood, as perhaps we have forgotten, that citizenship must be placed beyond the reach of political expedience, lest it become the instrument of precisely the tyranny it was designed to prevent. The promise of birthright citizenship is not a loophole to be closed. It is the door through which the nation walks toward its own stated ideals. To bar that door by presidential decree would be to diminish not merely the rights of the vulnerable, but the constitutional architecture that protects us all.