Supreme Court Strikes Down Trump’s Order Limiting Birthright Citizenship

The Supreme Court on Tuesday struck down President Trump’s executive order restricting birthright citizenship, ruling in Trump v. Barbara that the policy is unlawful. The order, signed on Trump’s first day back in office, never took effect because every federal court that reviewed it blocked it, CBS News reported.

The order sought to deny automatic citizenship to babies born in the U.S. to parents who were in the country illegally or temporarily. The administration said it would apply only to future births. The Migration Policy Institute and Penn State’s Population Research Institute estimated it would have denied citizenship to about 250,000 babies a year, according to CBS News. The case reached the justices through a suit filed in New Hampshire on behalf of all children the policy would cover, after the Court limited nationwide injunctions.

Chief Justice John Roberts wrote the opinion for five justices, who held that the order violates the 14th Amendment’s Citizenship Clause. He described the Court’s 1898 decision in United States v. Wong Kim Ark as establishing that the clause grants citizenship to nearly all children born on U.S. soil. “Citizenship, then and now, was the right to have rights,” Roberts wrote, adding “We keep that promise today,” according to CBS News. NBC News reported that he wrote that the Framers extended the promise to “every free-born person in this land.” Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson joined him.

Justice Brett Kavanaugh agreed the order was unlawful but rested his view on federal law rather than the Constitution. He wrote that Congress could create exceptions for children of parents who are in the country unlawfully or temporarily but “has not yet done so,” CBS News reported.

Justice Clarence Thomas dissented, joined by Justice Neil Gorsuch. He argued that the majority’s account of citizenship history “is not historically accurate,” according to CBS News. Justice Samuel Alito also dissented, writing separately; he suggested that Congress could legislate limits on birthright citizenship.

Trump called the decision “too bad for our Country” in a post on Truth Social and urged Congress to restrict birthright citizenship by statute, saying no constitutional amendment was needed. CBS News reported that, given the majority’s holding, a constitutional amendment would likely be needed, and NBC News said such a proposal is highly unlikely to pass.

Republicans in Congress responded. NBC News reported that Sen. Eric Schmitt of Missouri announced a constitutional amendment that would limit birthright citizenship to children of U.S. citizens and legal permanent residents, and that Sen. Lindsey Graham of South Carolina said he would make the issue one of his top priorities when he is chairman of the Senate Judiciary Committee next year. Backers argue that the 14th Amendment’s phrase “subject to the jurisdiction thereof” was meant to exclude children of people without a lawful, permanent tie to the country. Opponents counter that the Court has read the clause broadly for more than a century.

For now, the ruling leaves the status quo in place: children born in the U.S., whatever their parents’ immigration status, remain citizens at birth.