Birthright Citizenship Hits the Supreme Court
Trump’s order to exclude the children of illegal immigrants is legal revisionism.
By The Editorial Board
March 31, 2026 5:49 pm ET
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The Supreme Court will hear arguments Wednesday on President Trump’s effort to redefine birthright citizenship, and this is deep revisionism, as the government admits. Solicitor General John Sauer argues in his brief that the prevailing interpretation of this constitutional clause is an old error: “That misreading took hold by President Franklin D. Roosevelt’s Administration.”
When a longtime legal doctrine is incorrect, the Justices shouldn’t shy away from fixing it merely because of age, and in the coming months the High Court could prove that point on the presidential removal power by finally burying Humphrey’s Executor v. U.S. (1935). Yet other times there’s a reason the orthodoxy became the orthodoxy, and the case about birthright citizenship, Trump v. Barbara, might be one of those.
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The 14th Amendment, ratified in 1868 after the Civil War, begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Does this language confer U.S. citizenship on babies whose parents are in the country illegally or temporarily? The traditional understanding is yes. Mr. Trump says no, and he ordered agencies to stop issuing these babies documents reflecting citizenship.
This constitutional provision has come to the Supreme Court before. In Wong Kim Ark (1898) the Justices recognized the citizenship of a man born to Chinese parents in San Francisco. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory,” the majority said, including “all children here born of resident aliens.” The few exceptions included children of foreign diplomats, enemies during “hostile occupation,” and Native American tribal nations.
The Trump Administration argues, however, that the Court hasn’t directly answered the current question. Congress didn’t pass the first modern immigration law until 1875, and for much of history migrants “could freely enter the United States and take up permanent residence,” the government says. Wong Kim Ark “concerned children of aliens with a lawful domicile in the United States, not children of temporarily present aliens or illegal aliens.”
The crux of the dispute is what it means for a child to be subject to U.S. “jurisdiction.” The opponents of Mr. Trump’s order say this simply refers to people who are under the government’s authority, including illegal aliens and students with visas, who must obey U.S. laws or be punished if they don’t. This helps make sense of the narrow birthright exceptions: In contrast, foreign diplomats enjoy immunity and famously don’t pay New York parking tickets.
The Trump Administration argues, on the other hand, that birthright citizenship covers only people “completely subject” to U.S. “political jurisdiction,” meaning those “who owe ‘direct and immediate allegiance’ to the Nation and may claim its protection.” Its reading excludes babies born to temporary visa holders, as well as illegal migrants, who “lack the legal capacity to form a domicile.”
Yet the challengers say this interpretation is foreclosed by Wong Kim Ark, which adopted their view of “jurisdiction,” even if the 1898 ruling lacked the distinctions and vocabulary on illegal immigration that Mr. Trump now wants to use. “Under the longstanding definition, undocumented immigrants are domiciled in this country: They reside here, with ‘an intention to remain,’” the challengers add.
Mr. Trump’s order applies to the children of “immigrants who have resided in this country for decades, some since their own infancy.” One plaintiff who sued, according to a court filing last year, is a Taiwanese woman with a student visa who had lived in the U.S. for 12 years and was applying for a green card.
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The U.S. has a strong record of assimilating newcomers, from Asians in San Francisco to Irish in New York to Cubans in Miami, and birthright citizenship has been part of that story. At the same time, illegal immigration has become a serious problem, as the American left refuses to enforce the law.
But the place to fight it is at the border, and Mr. Trump has virtually halted migrant flows. It didn’t require trying to change the settled meaning of the 14th Amendment by executive action. Mr. Trump’s order has put the Supreme Court in another difficult position by reopening a constitutional debate with fraught political implications. The decision may come down to how the originalist Justices read the text and history of the 14th Amendment.
Link: Supreme Court