Supreme Court hears historic birthright citizenship arguments

On Wednesday, the Supreme Court considered a case that could reshape the concept of birthright citizenship. During two hours of debate, the justices raised several key questions about an executive order’s definition of a right established in the Constitution’s 14th Amendment.

The justices heard arguments in Trump v. Barbara with President Donald Trump in attendance at the court for part of the session. At issue was Trump’s executive order No. 14,160, Protecting the Meaning and Value of American Citizenship, which claims birthright citizenship does not apply in several situations traditionally understood to be protected by the 14th Amendment’s Citizenship Clause, which reads 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.”

One question was the importance of the precedent of United States v. Wong Kim Ark (1898), a long-settled ruling that defines the citizenship rights of people born in territory controlled by the United States. Another was the role of English common law as the basis for the Citizenship Clause—and how best to understand its lessons. And still another was how the definition of birthright citizenship fits in modern times within the contours of the prior two precedents.

The Supreme Court has long interpreted the Citizenship Clause to bestow automatic citizenship on a child born in the territory of the United States regardless of their nationality, with limited exceptions. The clause was meant as a direct rejection of the Supreme Court’s Dred Scott v. Sandford decision from 1857, where Chief Justice Roger Taney held that African Americans had “had no rights which the white man was bound to respect.”

In the Wong Kim Ark case, a divided Supreme Court held that Wong Kim Ark, who was born in San Francisco to parents who were Chinese citizens, automatically became a United States citizen at birth.

The administration argued in briefs that another Supreme Court precedent, Elk v. Wilkins (1884) applied to Barbara. In the administration’s view, Elk and other precedents limited birthright citizenship to children of persons “domiciled within the United States.” The administration also argued key language in the Citizenship Clause—the words “and subject to the jurisdiction thereof”—did not grant U.S. citizenship in situations where children were born in the territory of the United States to parents who were not legally in the country or where the parents were temporary visitors.

The arguments at the Supreme Court

The questioning at the Supreme Court on Wednesday branched out in several directions, from the importance of English common law to the ability of the courts and elected officials today to reconsider citizenship status related to situations that did not exist more than 100 years ago.

Link: Read the arguments transcripts | Listen to the audio

After Solicitor General D. John Sauer’s opening statement, Chief Justice John Roberts asked Sauer about his push to expand the list of birthright citizenship exceptions under the “jurisdiction of the United States.” “You obvious put a lot of weight on the theory of ‘the jurisdiction thereof.’ The examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens [that] are here in the country,” Roberts commented. “I’m not sure how you can get to that big group from such a tiny list … of idiosyncratic examples.” Sauer pointed to the debates of the Civil Rights Act of 1866 and other evidence supporting his case.

Soon, the subject of the English common law came into play, as first raised by Justice Samuel Alito, who wondered if a general rule based on the common law applied to situations that exist today. Justice Clarence Thomas also asked Sauer if immigration was part of the debate about the 14th amendment when it was considered by Congress.

Justice Elena Kagan noted that Sauer’s court brief sought to revise Wong Kim Ark, which she viewed as a precedent having a clear rationale as “a common law tradition … it came from England, we know what it was, everybody got citizenship by birth except for a few discrete categories.” Sauer did not agree with Kagan’s description of Wong Kim Ark, which he argued did not apply to the children of temporary visitors to the United States.

Justice Ketanji Brown Jackson commented that Sauer had “hurdles to clear” to establish a case that the framers and ratifiers of the 14th Amendment were not importing established common law rules when they crafted the amendment’s language.

Cecillia Wang then argued the case for the American Civil Liberties Union—challenging the administration’s executive order. She quickly faced questions from several justices.

Chief Justice Roberts asked Wang why in her arguments she downplayed the importance of the word “domiciled” in the administration’s case when the word was used more than 20 times in the Wong Kim Ark decision. Justice Alito noted that the concept of “permanent domiciles” was included in the opening and closing of the majority opinion in the Wong Kim Ark.

In response to both questions, Wang cited the English common law tradition, and an early Supreme Court decision, The Schooner Exchange v. McFaddon (1812), as establishing that having a domicile was not a factor in establishing birthright citizenship.

Justice Kagan later returned to a question posed by Justice Alito about how the Supreme Court should deal with a problem that did not exist when the 14th Amendment was ratified, and the circumstances of how the Court should consider birthright citizenship for children of persons unlawfully in the United States.

Wang dismissed the executive order’s domicile requirement and argued that it was “crystal clear” from Wong Kim Ark and prior congressional debates that “the framers of the 14th amendment meant to have a universal common law rule of citizenship, subject to a closed set of exceptions.”

Justice Brett Kavanaugh then asked Wang if the idea of considering exceptions to the 14th Amendment was “frozen” at the time that the 14th Amendment was framed and ratified or if the Court should consider exceptions based on “modern circumstances” such as non-citizens unlawfully in the country. Wang cited a case brief that said the government’s position was a challenge to the current rule and not promoting a new rule itself.

As the arguments unfolded, it became clear that the justices were considering the 14th Amendment’s text and history, as well as the context of the Wong Kim Ark’s precedent in modern times and the implications and complications of possibly expanding exceptions to birthright citizenship. Several justices also asked about the ability of Congress on its own to establish birthright citizenship exceptions through legislative action.

Given the complexity of the case, a final decision from the Court is not expected until at least late June 2026.

Scott Bomboy is the editor-in-chief of the National Constitution Center.