The constitutionality of President Trump’s executive order aimed at limiting birthright citizenship presents an issue that legal experts consider an easy question of law. Every judge who has ruled on the matter has found the order to be unconstitutional.

The Upcoming Supreme Court Review

Trump vs. Barbara Oral Arguments

On Wednesday, the Supreme Court justices will hear oral arguments in the case of Trump vs. Barbara. Despite the Court's recent tendency to side with the president, upholding an order so clearly contrary to historical practice, constitutional text, and established precedent seems unlikely.

Even if the text of the Constitution were ambiguous—which proponents argue it is not—the President lacks the authority to alter the 14th Amendment through an executive order. Such an order is limited to regulating the executive branch, not redefining who qualifies as a U.S. citizen.

Historical Context of Birthright Citizenship

English Law and the 14th Amendment

Initially, the United States followed English common law, which granted citizenship to everyone born within the country's borders. This system was disrupted in 1857 when the Supreme Court, in Dred Scott vs. Sandford, controversially ruled that enslaved individuals were property and not citizens, regardless of birthplace.

The first sentence of the 14th Amendment, ratified in 1868 following the Civil War, was specifically designed to overturn the Dred Scott decision. It mandates that “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.”

Understanding 'Subject to the Jurisdiction Thereof'

Both proponents and opponents of the 14th Amendment understood it to automatically confer citizenship upon nearly all persons born in the U.S. The critical exceptions were understood to be children of foreign diplomats or members of invading armies.

This interpretation was cemented in the 1898 case, United States vs. Wong Kim Ark. The Court explicitly stated that those born in the U.S. are automatically citizens, even if their parents are foreign nationals. The Court noted that under English law for over three centuries, children born to alien parents were subjects unless they were the offspring of an ambassador or an alien enemy in hostile occupation.

The Court clarified that “subject to the jurisdiction thereof” was intended only to exclude those immune from U.S. legal authority, such as diplomats or combatants. Children born in the U.S. are subject to its jurisdiction in every conceivable way.

The Impact of Trump's Executive Order

Order Details and Immediate Challenges

On January 20, 2025, President Trump enacted his long-threatened executive order restricting birthright citizenship. This order stipulated that a child is only a citizen if born to U.S. citizens or lawful permanent residents (green card holders).

Under this new rule, children born in the U.S. to parents on visas or those who are undocumented would not receive automatic citizenship. For instance, a baby born to a student holding a valid visa would not be a U.S. citizen.

Judicial Rejection of the Order

Numerous legal challenges were immediately brought against the executive order, resulting in unanimous rejection by every court that reviewed it. Seattle federal District Judge John Coughenour stated, “I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order.”

Maryland federal District Judge Deborah Boardman noted that Trump’s interpretation has been “resoundingly rejected and no court in the country has ever endorsed” it. Erwin Chemerinsky, dean of the UC Berkeley Law School, asserts that historical text and original meaning all point to the order being unconstitutional.

Profound Implications of the Ruling

The potential impact of this order is vast. If enacted, it would deny citizenship to an estimated 250,000 children born in the United States annually, potentially leaving most stateless.

Furthermore, the American Civil Liberties Union argues that if the Supreme Court upholds the administration's position, it “would cast a shadow over the citizenship of millions upon millions of Americans, going back generations.” Given the weight of history, text, and precedent, the Supreme Court is expected to issue a unanimous decision striking down the order.