Arguments were heard in the Supreme Court on Wednesday morning trump vs barbaraA case challenging President Donald Trump’s 2025 executive order banning birthright citizenship. The justices were skeptical of the administration’s reasoning, but by assuming birthright citizenship, they showed how much Native Americans have benefited since Trump’s first term. The 14th Amendment is absolutely clear: “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.” Trump wants to reverse this and create a new, effectively stateless American underclass, and he has gone worryingly too far.
Hours after taking the oath of office for his second term, Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship.” Under the order, children born to undocumented mothers or to women in the country on non-immigrant visas will no longer be citizens after birth unless the children’s father is a citizen or permanent resident. The provisions of the order will become effective 30 days after its issue. This was immediately challenged in court and several federal injunctions blocked its implementation, meaning birthright citizenship still remains the law of the land.
Trump’s efforts hinge on the meaning of a specific clause: “subject to his jurisdiction.” The administration argues that noncitizens and those who do not have permanent residence are not subject to United States jurisdiction because they are actually loyal to a foreign power. This interpretation would not only overturn centuries of American law, but would also overturn the precedent set by English common law, leaving hundreds of thousands of children without status or stateless at birth. Justice Action Center director Karen Tumlin called the case “an absurd case in the coal mine for our democracy: If Trump can end birthright citizenship with the stroke of a pen, no constitutional protection is safe.”
All but the most conservative judges seemed unconvinced. His questions mainly focused on two historical decisions. there was one Dred Scott vs. SandfordAn 1857 case in which the Court decided that enslaved people were not citizens – which the 14th Amendment was ratified in part to overturn. was the second United States of America v. Wong Kim ArkAn 1898 case in which the Court ruled that, despite the Chinese Exclusion Act, American-born children of Chinese citizens were in fact American citizens.
Justice Clarence Thomas asked Sawyer how the Citizenship Clause responded Dred ScottSawyer acknowledged that the 1857 decision was “one of the worst injustices in the history of this court.” But he argued that Congress specifically ratified the 14th Amendment to grant citizenship to “newly freed slaves and their children” who, according to Sawyer, had a “connection of domicile” with the United States and no “connection” to any foreign power.
Sawyer argued that nineteenth-century legislators could not have anticipated the problem of birth tourism. “There are 500 – 500 – birth tourism companies in the People’s Republic of China whose business is to bring people here to give birth and return to that country,” Sawyer said. The current interpretation of birthright citizenship “could not possibly have been approved by the 19th-century framers of this amendment,” he said. “We’re in a new world,” he added, “where 8 billion people are one plane ride away from giving birth to an American citizen child.”
Justice Neil Gorsuch, who was questioning Sawyer, appeared disinterested. “It’s a new world,” he agreed, but “it’s the same Constitution.”
“It’s a new world,” Gorsuch said, but “it’s the same Constitution.”
Chief Justice John Roberts called Sawyer’s examples of existing exceptions – including children of ambassadors or enemies during hostile invasion – “very bizarre” and not necessarily comparable with “an entire class of illegal aliens present in the country.” Justice Elena Kagan said most of Sawyer’s brief focuses on people who are in the country temporarily on visas — but Trump’s executive order was clearly intended to restrict immigration, and the president himself has said so.
In 2019, Trump called birthright citizenship a “magnet for illegal immigration.” Last year, presidential adviser Stephen Miller said that the US-born children of immigrants are as big a problem as the immigrants themselves. “As with many of these immigrant groups, it’s not just the first generation that fails,” Miller said in a Fox News interview, citing the Somali-American community, which the administration will soon target in Minneapolis as an example. “You see persistent issues in every subsequent generation. So you see persistently high rates of welfare use, persistently high rates of criminal activity, persistent failures to assimilate.”
The administration has sought to restrict legal immigration in all its forms: it has imposed steep fees for H-1B work visas, hinted it may end a work program for international students, and imposed a travel ban on several countries that is also affecting World Cup players. This operation is clearly racist. The President famously complained about “people from all these dirty countries” who immigrate and expressed a desire for “more people from Norway”. Last year, he reduced the refugee resettlement cap to just 7,500 and prioritized the resettlement of white South Africans. The Department of Homeland Security has associated “Homeland” with a certain white vision of manifest destiny that, like debates about birthright citizenship, is reminiscent of the nineteenth century.
Experts broadly agree that a majority of the justices did not agree with the administration’s reasoning, but it is not clear exactly how the court will rule.
If the court hands Trump an unexpected victory, a series of serious questions will immediately emerge — starting with when the transition begins. The order was to take effect on February 19, 2025, thirty days after Trump signed the order, and would have gone into effect if not for several federal injunctions. “If the court sides with Trump, it will have to set a date to enforce the president’s interpretation of the 14th Amendment,” said César Cuauhtémoc García Hernández, a professor of civil rights and civil liberties at the Ohio State University College of Law. The Verge. “Anyone born on or after that date and described in Trump’s order will be considered an immigrant rather than a U.S. citizen.”
Sawyer asked the court to enforce Trump’s executive order “proactively,” not retroactively, and that pushing back the change to 2025 would create too many problems, putting the citizenship of millions of children in question.
The Trump administration is trying to limit who counts as an American, while also pushing for policies that prevent non-citizens from participating in public life. The administration has tried to prevent states from paying in-state tuition to undocumented immigrants living there, deaccredited training centers that staffed non-citizen truck drivers, and largely sought to turn the US into a “paper, please” country.
Trump was in the audience during Wednesday’s debate, making him the first sitting president to participate in oral arguments before the Supreme Court. His presence may have been intended to intimidate skeptical judges into taking his side. Norman Wong, a direct descendant of Wong Kim Ark, was also outside the court, according to new York Times. Wong and his family take responsibility for the case, and he had a message for the judges: “They will be embarrassed by history if they get this wrong.”
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