Supreme Court shuts down Trump’s attempt to change birthright citizenship
by Stephen Dinan, Alex Swoyer · The Washington TimesThe Supreme Court forcefully affirmed America’s guarantee of automatic citizenship to persons born on U.S. soil, ruling Tuesday against President Trump’s attempt to unilaterally rewrite the bedrock birthright.
The court’s majority said the Constitution was clear when it granted citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof” — and that includes children of illegal immigrants or temporary legal visitors.
“Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ’every free-born person in this land,’” Chief Justice John G Roberts Jr. wrote for the majority. “We keep that promise today.”
The decision was the final one to be delivered from cases heard during the high court’s 2025-2026 term, and it was a major blow — albeit expected — to the president.
Overall, Mr. Trump notched a mixed record, including a major decision backing his presidential firing powers on Monday, and a decision in February erasing his global tariffs.
But the birthright case overshadows them all, at least in part because of the boldness of Mr. Trump’s Inauguration Day executive order attempting to limit the practice.
SEE ALSO: Trump says China is the winner in Supreme Court’s birthright citizenship ruling
He sought to deny citizenship to children born in cases where both parents lacked permanent legal status. That included illegal immigrant parents and those here on visitor visas, such as foreign students, guest workers and tourists.
The problem for Mr. Trump, Chief Justice Roberts said, is that the Constitution guarantees citizenship to all persons “subject to the jurisdiction” of the U.S.
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And he said American history and the history of the 14th Amendment show that was meant to include the wide diaspora of humanity, regardless of origin.
“No matter their intentions, however, they could be assured that their children would be American citizens by birth alone,” the chief justice wrote.
He said the amendment allows for few exceptions involving quirks of international jurisdiction— for example, children born to diplomats or invading armies. But everyone else is covered.
The chief justice said that was clear as far back as 1898, when the Supreme Court issued its Wong Kim Ark ruling that strongly hinted that nearly all persons born here, regardless of parents’ status, were automatic citizens.
Justice Clarence Thomas led the dissent, saying his colleagues were overreading the 14th Amendment, enacted in the wake of the Civil War to guarantee citizenship to freed Black slaves.
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“The court today takes the extraordinary step of holding facially unconstitutional the president’s order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support,” wrote Justice Thomas, a George H.W. Bush pick and one of two Black members of the court.
The other, Justice Ketanji Brown Jackson, a Biden nominee, chided Justice Thomas for his “narrow vision” of the 14th Amendment, saying he was wrongly pitting “Black Americans against immigrants.”
“The Reconstruction Amendments were an anticaste, antisubordination reset for the nation, not a mere spot treatment for the dark stain of slavery,” she wrote.
Six justices ruled against Mr. Trump, though, for different reasons.
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The chief justice, joined by fellow GOP appointee Justice Amy Coney Barrett and the court’s three Democratic picks, said Mr. Trump’s order was unconstitutional.
Justice Brett M. Kavanaugh took a different approach, saying Mr. Trump’s order wasn’t unconstitutional, but it was illegal.
He said Congress in 1940 wrote birthright citizenship into the law, and a president can’t circumvent the law through an executive order.
Mr. Trump took to social media to denounce the decision, calling it a “massive … win” for China. His administration has pointed to women who come to the U.S. specifically to deliver babies who can enjoy automatic citizenship.
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Women pay tens of thousands of dollars for the practice, known as “birth tourism,” and while citizens of many countries attempt it, it’s particularly prevalent among Chinese women.
Justice Samuel A. Alito, who dissented from Tuesday’s decision, said those children could be a national security issue.
“Suppose the child never visited the United States while growing up and was inculcated with hatred of this country. According to the court, that person is a citizen of the United States. He can enter and leave the country as he pleases. He can travel the world on a United States passport. Even if he plots to harm this country, he cannot be deprived of his status as a citizen, at least under current precedent,” Justice Alito wrote.
He said Tuesday’s ruling would “degrade the concept of United States citizenship.”
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“In my judgment, the Court has made a mistake that will seriously affect the country’s future,” he wrote.
Mr. Trump, on social media, suggested there’s still room for Congress to act.
“No long and unwieldy Constitutional Amendment is necessary! Congress should start TODAY to work on ending expensive and unfair to our Country, Birthright Citizenship. They will have my Complete and Total Support!” he wrote.
But Chief Justice Roberts’ ruling, which relies on the Constitution, seems to preclude Congress from acting on its own. To change birthright citizenship would require an amendment to the Constitution — something unthinkable in today’s political climate.
Republicans suggested there may be still wiggle room for Congress to pass legislation redefining who qualifies under the phrase “subject to the jurisdiction” in the 14th Amendment’s citizenship guarantee.
Rep. Chip Roy, Texas Republican, also suggested Congress could pass legislation blocking federal funding from any agency or state that takes an expansive view of birthright citizenship.
“Congress must act immediately and must not hide behind the fiction that it must amend the Constitution to fix this abuse of our laws,” Mr. Roy said.
Congress could also pursue legislation to try to tighten the rules on birth tourism or foreigners using American women for surrogacy pregnancies.
America’s guarantee of birthright citizenship is common for most of the Western Hemisphere, including Brazil, Mexico and Canada.
But it is a relative rarity for America’s peer nations elsewhere, according to a 2018 survey by the Library of Congress. Spain, Great Britain and Germany based citizenship on a parent’s status, while France based it on age and residency of the child. Australia used a combination.
Ireland had unconditional birthright citizenship until 2005, when it imposed restrictions based on a parent’s status.
Some countries also don’t recognize children born to parents who aren’t on their own soil. That would create a tricky problem if those children are born in the U.S., because they could be considered stateless persons.
Mr. Trump’s executive order couldn’t change the language of the Constitution. Instead, it directed the federal apparatus not to recognize children born to those parents the president had singled out.
The number of people who would have been subject to Mr. Trump’s executive order is hotly debated.
The Pew Research Center earlier this spring calculated that about 260,000 babies born in 2023 could have been excluded. Most were born to illegal immigrant mothers, though about 15,000 were to mothers with temporary legal status.
That accounted for about 7% of all U.S. births that year.
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Stephen Dinan
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