30 Jun Supreme Court Strikes Down Executive Order on Birthright Citizenship
Today, in Trump v. Barbara, the Supreme Court struck down President Trump’s Executive Order purporting to end birthright citizenship. In doing so, the majority relied on the plain text of the Fourteenth Amendment’s Citizenship Clause, the unbroken history of English common law through Reconstruction that recognized birthright citizenship, and existing Supreme Court precedent. In terms of the importance of today’s decision, as Chief Justice Roberts explained in writing for the majority: “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.’ … We keep that promise today.”
On January 20, 2025, President Trump issued Executive Order No. 14160, titled “Protecting the Meaning and Value of American Citizenship.” That Order provided that babies born to individuals who were in the United States either unlawfully or temporarily would not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act. Several lawsuits followed, and one district court provisionally certified a class of all children who would be denied citizenship under the Order and preliminary enjoined the enforcement of the Order. The Trump administration sought Supreme Court review on the question of whether the Order violates the Fourteenth Amendment or the INA.
One of the Reconstruction Amendments, the Fourteenth Amendment’s Citizenship Clause provides: “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.” It was enacted after the Civil War and in response to the Supreme Court’s decision in Dred Scott v. Sandford, 19 How. 393 (1857). Dred Scott, considered one of the Court’s most disgraced decisions which today’s majority calls “odious,” held that African Americans, including those that were free, were “not included, and were not intended to be included under the word ‘citizens’ in the Constitution.” Under that decision, even if Northern states chose to grant citizenship to African Americans, they could not even if they were born in the United States.
In a 5-4 opinion, the majority held that the Fourteenth Amendment’s text is clear: “[a] child born on American soil and subject to American law was made an American citizen.” History is important context to understand the Citizenship Clause of the Fourteenth Amendment as that Clause was a repudiation of Dred Scott. But to understand the Clause, the majority takes us through a history lesson back to the time of the British Empire and English common law.
Under English common law, the sovereign’s power, including a claim to the people’s allegiance, was complete. Under English common law, children born to foreign parents anywhere in the British Isles would remain a British subject because that child owed allegiance to the sovereign. That view was adopted after the Revolution in the United States and at the time of our country’s founding, the right of the soil – known as jus soli – prevailed. This meant that all “who [we]re born within the jurisdiction of a State” were citizens. Judicial opinions and treatises at the time of founding confirm that citizenship was based on whether the child was born in America.
This clear common law rule was then muddied by the slave States which sought to deny citizenship to African Americans. These laws, which did not even confer citizenship on emancipated slaves resulted in the denial of almost 500,000 African Americans of citizenship status. Then came the Dred Scott decision, which nationalized the South’s citizenship-stripping project. It took a bloody Civil War, but in its aftermath came a repudiation of the Dred Scott decision.
After the Civil War, Congress first passed the Civil Rights Act of 1866 which provided that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby . . . citizens of the United States.” But Dred Scott still stood as an obstacle to this law, so Congress, per the majority, sought to “permanently enshrine the common law in the Constitution.” Chief Justice Roberts explained that the goal of the Fourteenth Amendment was to “put the ‘great question of citizenship’ ‘beyond the legislative power’ altogether, to settle the issue once and for all.” And the “ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions.” This meant that under the Constitution, with the exception of foreign ministers and members of 19th century Indian tribes over whom the United States had ceded its jurisdiction, “children born to parents unlawfully or temporarily present in the United States… are citizens at birth.”
Finally, the Court’s precedent provided additional support for its textual and historical analysis. In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court rejected the federal government’s argument that only children born to parents who were “domiciled” in the United States were citizens under the Fourteenth Amendment. Instead, the Court in Wong Kim Ark held that all children born in this country, whether to permanent residents or temporary visitors, were citizens (subject to similar exclusions that we have today like for children of ambassadors or other representatives of foreign sovereigns). And Chief Justice Roberts noted that “[n]ot surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power.”
The federal government focused on the domicile argument that was rejected in Wong Kim Ark. But the majority countered that: “postenactment history cannot override the text. If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design.”
Justice Kavanaugh concurred in the judgment and dissented in part. He disagrees with the constitutional holding but would find that the Executive Order violates 8 U.S.C. §1401(a). Under his view, Congress could change the statute consistent with the Fourteenth Amendment to create exceptions to birthright citizenship.
Justice Thomas wrote a dissent, joined by Justice Gorsuch and Justice Alito penned a separate dissent. All three would have upheld the Executive Order though with slightly different arguments. Justice Gorsuch wrote separately to indicate that in his view, although the Order has some lawful applications and thus can survive a facial challenge, he has doubts as to its legality as applied to children born to parents who are here unlawfully but have long made the United States their home – i.e., their domicile.
While the Executive Order was always couched as prospective, today’s result avoids potentially stripping approximately 250,000 children per year of citizenship. This would have resulted in likely increased burdens for local governments that provide critical services to residents in their communities as these children would no longer be eligible for federal benefits like TANF & WIC. It would have also created some uncertainty for local governments as to how vital records should be administered for children born to parents lacking legal status going forward. Today’s result maintains the status quo for both individuals and local governments.
You can read the decision here.