President Donald Trump is asking the Supreme Court to prop up a January executive order ending birthright citizenship in the United States.
The order, which would stop the practice of granting citizenship to children of undocumented immigrants and other noncitizens born in the U.S., was all but laughed out of court by a federal judge that month. U.S. District Judge John Coughenour called the novel interpretation of the law “blatantly unconstitutional” while issuing a temporary restraining order on the Trump administration. Coughenour was one of three federal judges to put a pause on the policy.
The emergency application from the Trump administration asks the high court to “restrict the scope” of nationwide stays on the order’s implementation, citing Justice Clarence Thomas’s 2018 claim that universal injunctions were “legally and historically dubious.”
“Universal injunctions have reached epidemic proportions since the start of the current Administration,” attorneys for the Trump administration wrote, hoping the conservative-controlled Supreme Court would “declare that enough is enough” and check the judiciary’s own power to rein in the executive branch.
The court has proven to be unpredictable in Trump cases, throwing several wrenches into the administration’s more blatant schemes. And the concept of birthright citizenship for all people born on American soil has much deeper roots than the Project 2025 platform.
Birthright citizenship is older than the United States
Birthright citizenship has been formally codified in the Constitution for over 150 years, but the concept dates back to long before the nation’s founding.
University of Virginia Professor Amanda Frost traced the pre-14th Amendment foundations of birthright citizenship in an article for the Yale Journal of Law and Humanities last year.
“Common law doctrine [of citizenship by birth] was the law of the land until it was erroneously rejected by the Supreme Court in its 1857 decision in Dred Scott v. Sandford, which declared that no person of African descent, slave or free, could be a U.S. citizen,” Frost wrote.
The “antebellum doctrine” of rights at birth was present in the laws of at least six northern states, laying the groundwork for a post-Civil War amendment. Incompatible statutes on the question of citizenship were finally resolved after the abolition of slavery and the ratification of the 14th Amendment.
SCOTUS has long supported the 14th Amendment
The most sweeping of the Reconstruction Amendments, the 14th Amendment overturned the Dred Scott decision, which held that Black Americans weren’t entitled to citizenship at birth. The amendment explicitly states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” and has been held to grant unconditional citizenship to those born on US soil since 1898.
That year, the Supreme Court ruled in United States v. Wong Kim Ark that an American-born son of two Chinese nationals was entitled to American citizenship despite laws barring Chinese individuals from the country.
For the majority, Justice Horace Gray ruled that the 14th Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory… including all children here born of resident aliens,” clarifying that Wong was a citizen.
The Supreme Court’s finding has been the law of the land since, with Congress occasionally broadening the scope of citizenship based on the court’s ruling. Lawmakers granted citizenship to all Native Americans in 1924, after the court had ruled decades before that people born on reservations were not entitled to citizenship.
“Either a crazy theory or a dishonest interpretation”
Experts agree that the text of the 14th Amendment is clear, and that Trump’s interpretation doesn’t pass muster. Harvard Law School professor Gerald Neuman defended citizenship for all people born in the United States in a January interview with Harvard Law Today.
“The argument is either a crazy theory or dishonest interpretation of the Constitution,” Neuman said, adding that an executive order was also insufficient to augment constitutional law. “The president has no authority to change the citizenship rule at all… the merits are clear. There’s only one reasonable answer to this.”
Beyond questions of constitutionality, state officials fear the change would create devastating logistical crises. Officials from at least 24 states signed on to an amicus brief in support of New Jersey’s challenge to the executive order last month, saying the change would “cause administrative confusion…and immeasurable harm to individuals.”
Julia Gelatt of the Migration Policy Institute told Salon last year that excluding certain American-born children from citizenship would create a “multigenerational class of people who are excluded from full rights.”
“Denying people that legal status, even if they’re born in the United States, would put people in a much more legally vulnerable, economically vulnerable position,” Gelatt said.
It is unclear whether the Supreme Court will give in to the president’s fringe interpretation, though the court recently narrowly ruled against the Trump administration’s illegal impoundment of $2 billion in Congressionally approved foreign aid.
At least one expert thinks justices wouldn’t go so far. UCLA Professor Hiroshi Motomura told Salon last year that birthright citizenship was even more sacred than other rights this court has placed on the chopping block.
“Even though people say that the court has become more conservative, this would be even further in the direction of trying to overturn the past than we’ve seen,” he told Salon. “This goes way beyond overruling Roe v. Wade. I think that was a radical move, but this is no comparison. This is quite a bit more of a rethinking of what the country is even about.”
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