Supreme Court Strikes Down Trump Birthright Citizenship Order, But the Margin Was Closer Than Expected

Today’s Focus

The Supreme Court closed its term this week by striking down President Donald Trump’s executive order that sought to end birthright citizenship for children born in the United States to noncitizen parents, according to reporting by The Atlantic.

Court-watchers had widely expected the order to fall. What surprised legal observers was the margin. Atlantic staff writer Quinta Jurecic wrote that depending on how the votes are counted on separate questions, the ruling split either 6-3 or 5-4 on whether the executive order could stand.

The decision came alongside two other high-profile rulings, Trump v. Slaughter and Trump v. Cook, that addressed the president’s power to fire Senate-confirmed leaders of independent agencies. In those cases, the Court broadly endorsed the “unitary executive” theory, giving the president wide authority to remove agency heads, Jurecic reported.

The justices carved out an exception for the Federal Reserve. Governor Lisa Cook can remain in her post for now, the Court held, treating the Fed’s independence as constitutionally distinct from other agencies.

The birthright case, sometimes referred to in shorthand as Barbara, turned on the Fourteenth Amendment’s Citizenship Clause, which grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Trump’s order, issued at the start of his second term, directed federal agencies to stop recognizing U.S. citizenship for children born to parents without lawful status or on temporary visas.

Writing in National Review, conservative commentators argued the ruling does not end the debate. They contended that Congress retains authority to legislate on aspects of birthright citizenship even if the executive branch cannot act alone.

The White House has not indicated whether it will pursue new regulatory action or press allies in Congress to take up the issue.

The Debate

Supporters argue

Supporters of restricting birthright citizenship contend the practice as currently applied was never what the Fourteenth Amendment’s drafters intended. Writing in National Review, contributors argued that the “subject to the jurisdiction thereof” clause was meant to exclude children of foreign nationals who owe primary allegiance elsewhere, and that Congress has room to codify that reading.

The magazine’s editors framed the ruling as a setback but not a defeat, contending lawmakers can address what they call “the worst aspects” of automatic citizenship through statute. They pointed to concerns about “birth tourism” and incentives for unlawful entry as policy problems Congress can still tackle.

Trump administration allies have argued the executive order was a legitimate attempt to force judicial clarity on a question the Court had not squarely addressed in more than a century. They noted that the 1898 case United States v. Wong Kim Ark involved a child of lawfully domiciled immigrants, leaving open questions about children of parents present unlawfully.

Restrictionist groups, including the Center for Immigration Studies, have long argued that the United States is an outlier among developed countries in extending automatic citizenship to nearly all children born on its soil.

Critics argue

Critics of the executive order welcomed the ruling and said the closer-than-expected margin should not obscure what they view as a clear constitutional command. Immigrant rights organizations, including the American Civil Liberties Union, which brought one of the challenges, argued the text of the Fourteenth Amendment leaves no room for the president to redefine citizenship by fiat.

Legal scholars aligned with the challengers pointed to Wong Kim Ark as controlling precedent for well over a century. They contended that any effort to distinguish children of unauthorized immigrants from other U.S.-born children reads a limitation into the amendment that the framers of Reconstruction specifically rejected.

Democratic officials framed the order as an attempt to circumvent Congress and the Constitution simultaneously. They warned that even a narrow win at the Court signals that a future ruling could go the other way if the composition of the bench shifts, or if Congress passes a statute the justices treat differently from a unilateral executive order.

Civil liberties groups also raised alarm at the Slaughter and Cook rulings, arguing that expanded presidential removal power weakens the independence of regulators Congress designed to be insulated from politics.

What the experts say

Nonpartisan constitutional scholars have long treated birthright citizenship as settled doctrine. Garrett Epps, a legal scholar who has written extensively on the Fourteenth Amendment, has argued in academic work that the drafters explicitly debated and rejected proposals to exclude children of immigrants from the Citizenship Clause.

The Migration Policy Institute, a nonpartisan research organization, has estimated that roughly 250,000 children are born each year in the United States to at least one parent without legal status. Ending birthright citizenship for that group, MPI researchers have written in peer-reviewed work, would over time produce a large, multigenerational population of stateless or undocumented people born on U.S. soil.

Historically, the United States is one of about 30 countries, most in the Americas, that grant unconditional jus soli citizenship, according to data compiled by the Law Library of Congress. European countries generally use jus sanguinis, granting citizenship through parentage.

On the Fed exception in Trump v. Cook, scholars at the Brookings Institution have noted that the Court has historically treated monetary policy independence as a distinct constitutional and practical matter.

By the Numbers

6-3 or 5-4: the split on the birthright ruling depending on how the votes are counted across separate questions, according to The Atlantic.
1898: the year the Supreme Court decided United States v. Wong Kim Ark, the leading precedent on birthright citizenship.
~250,000: estimated annual U.S. births to at least one parent without legal status, according to the Migration Policy Institute.
~30: countries worldwide that grant unconditional birthright citizenship, per the Law Library of Congress.
14th Amendment, ratified 1868: the constitutional provision at the center of the case.
2: other major rulings this week on presidential removal power, Trump v. Slaughter and Trump v. Cook.
1: agency, the Federal Reserve, carved out from the expanded removal doctrine.