WASHINGTON – The Supreme Court on Tuesday rejected President Donald Trump’s attempt to end automatic citizenship to children born in the United States to parents in the country illegally or temporarily.

The decision affirming the traditional interpretation of birthright citizenship was 6-3. 

“Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause,” Chief Justice John Roberts wrote in the majority opinion.

Trump v. Barbara scrutinized Executive Order 14160, signed by Trump hours into his second term. The order sought to end automatic U.S. citizenship for any newborn without at least one parent who holds citizenship or legal permanent residency. 

Every lower court that considered the order struck it down, and skepticism was widespread among the justices during oral arguments April 1. 

Trump’s order reinterpreted the Citizenship Clause of the 14th Amendment, ratified in 1868 after the Civil War, which granted citizenship to people born in the U.S. and “subject to the jurisdiction thereof.”

But his focus on parentage didn’t fly with the high court.

“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. Words appearing frequently in the Executive Order –`mother,’ ‘father,’ ‘lawful,’ ‘temporary’ – are absent from the Clause. For a simple reason: they did not matter,” Roberts wrote.

Congress crafted the Citizenship Clause to overrule the infamous 1857 Dred Scott ruling, which held that Black people whose ancestors were brought to the U.S. as slaves did not have automatic citizenship.

“For them, blood, not soil, was made the rule,” Roberts wrote of Dred Scott in Tuesday’s ruling.

‘Scant evidence’

In 1952, Congress codified the precise language of the 14th Amendment in the Immigration and Nationality Act.

That gave the Supreme Court another path for rebuffing the president. Justice Brett Kavanaugh, in a concurring opinion that supported the decision to overturn Trump’s executive order, wrote that in his view, the order did not violate the 14th Amendment but did violate the 1952 law.

Either way, the Trump administration asserted, the provision had been misinterpreted for over a century. U.S. Solicitor General D. John Sauer argued before the high court that the amendment was only intended to grant citizenship to children whose parents are in the U.S. lawfully, and that the 1952 law was similarly misinterpreted.

At oral arguments, several justices challenged the assertion, noting that the Citizenship Clause focuses on where the child is born, not the parents’ immigration status. 

“There is scant evidence for this dramatically revisionist view,” Roberts wrote for the court Tuesday.

Roberts was joined by the three liberal justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, along with Justice Amy Coney Barrett. Kavanaugh provided the sixth vote.

In a dissent joined by Justices Samuel Alito and Neil Gorsuch, Justice Clarence Thomas called it “extraordinary” to allow citizenship for “the children of foreign temporary visitors and illegal aliens.”

He warned that the version of birthright citizenship affirmed by the court has “encouraged ‘birth tourism’ – the practice of traveling here with temporary authorization solely to give birth and obtain citizenship for one’s children, then returning to raise them in another country. Today, ‘birth tourism companies’ reportedly collect large fees from wealthy foreigners to facilitate their trips to give birth in the United States.”

Trump attended the oral argument, a first for a sitting president, signaling the priority he puts on the issue.

“We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!” he wrote on Truth Social beforehand. 

1898 precedent

The Supreme Court seemed to settle the issue of birthright citizenship in 1898, when it ruled in United States v. Wong Kim Ark that a man born in San Francisco – to Chinese immigrant parents who had not been naturalized – was a U.S. citizen.

Sauer argued that unrestricted birthright citizenship acts as a magnet or “pull factor” for illegal immigration and has contributed to so-called birth tourism, in which foreign nationals travel to the United States to give birth to secure lifelong citizenship for their child.

The argument closely mirrored assertions from White House Deputy Chief of Staff Stephen Miller, the architect of Trump immigration policies, who has called birthright citizenship a “scam” allowing immigrants to obtain “unlimited welfare.”

No American is entitled to unlimited welfare. But to the extent the government provides benefits, every baby born in the U.S. is as eligible as any other, regardless of parentage. 

Alito, in a separate dissent, called the ruling “a serious mistake.”

He depicted the traditional interpretation of birthright citizenship upheld Tuesday as an outlier: “Other than Canada, the United States will be the only affluent nation where birth alone is enough to establish citizenship,” he wrote.

Worldwide, 32 nations confer citizenship automatically to anyone born on their soil.

Conservatives have also at times raised the specter of “terror babies” who grow up with no allegiance to the U.S. but, thanks to their lifelong citizenship, can come and go at will on behalf of adversaries.

Up to a quarter of a million babies born in the U.S. each year would have been denied citizenship under the rules Trump sought – about 7% of all births nationwide in 2024. In Arizona, ending automatic citizenship at birth would have excluded about 3,400 babies born in 2022, the state told a federal court shortly after Trump issued the order.

“Tens of thousands” of people who are essentially stateless would be born each year under Trump’s order, said Leon Rodriguez, who served as director of U.S. Citizenship and Immigration Services under President Barack Obama.

“The way the Constitution has been interpreted going back to the Civil War is that if you are born in the United States and you are neither the child of an enemy combatant or a diplomat, then you are presumed to be a U.S. citizen,” he said by phone, adding, ”Many different parts of our legal system, including the immigration system itself (are) built on that assumption.”

Arizona was one of 22 states that challenged Trump’s order.

The ruling, Attorney General Kris Mayes said, “upheld the soul of this nation.”

A Reuters/IPSOS poll from April found that 64% of adults disapprove of Trump’s order, including 91% of Democrats, though 64% of Republicans approve. 

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