Supreme Court strikes down Trump’s birthright citizenship executive order in landmark decision

On Tuesday, a divided Supreme Court struck down President Donald Trump’s executive order on birthright citizenship and offered a broad constitutional understanding of the right to automatic citizenship for children born in the territory of the United States regardless of their nationality.

In his majority opinion for the Court in Trump v. Barbara, Chief Justice John Roberts held that “[c]hildren 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.”

The 14th Amendment’s Citizenship Clause 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.”

Joining the majority opinion were Justices Elena Kagan, Sonia Sotomayor, Amy Coney Barrett, and Ketanji Brown Jackson. Justice Brett Kavanaugh filed an opinion concurring in the judgment and dissenting in part. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch wrote separate dissents.

The Court had considered the concept of birthright citizenship during two hours of oral argument on April 1, 2026. The justices raised several key questions about an executive order’s definition of a right established in the Constitution’s 14th Amendment.

At issue was Trump’s executive order No. 14,160, Protecting the Meaning and Value of American Citizenship, which claimed that birthright citizenship did not apply in two situations: 1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Majority Opinion

“The Citizenship Clause must be understood in light of its historical context, from the English common law to the widespread condemnation of the Court’s decision in Dred Scott v. Sandford,” Roberts wrote. In Dred Scott, Chief Justice Roger Brooke Taney held that African Americans “had no rights which the white man was bound to respect” and that African Americans were not American citizens.

“Under the English common law, children ‘born within the [sovereign’s] dominions’ owed a natural ‘allegiance’ to the sovereign who protected them at birth,’” Roberts noted. “This common law of citizenship—known as jus soli, or right of the soil—crossed the Atlantic and prevailed in ‘each and all of the states’ after American independence.”

Roberts then cited the Civil Rights Act of 1866, which made citizens of “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” He said, “What the Civil Rights Act began, the Fourteenth Amendment, and its repudiation of Dred Scott, would finish.”

The Chief Justice then turned to 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. “In Wong Kim Ark, the Court held that the Fourteenth Amendment was ‘declaratory’ of the ‘fundamental rule of citizenship by birth that prevailed at common law,’” Roberts said, with some exceptions. Today, those exclusions include children of accredited foreign diplomats; children of hostile invaders or occupying forces; births aboard foreign sovereign vessels; and children born in American Samoa and Swains Island.

Roberts also rejected arguments made by the Trump administration that birthright citizenship was a right only reserved to those domiciled in the United States.

“Attempts to narrow Wong Kim Ark by noting that the Court’s opinion repeatedly referred to the domicile of Wong’s parents fail because the holding’s underlying reasoning cannot be squared with a domicile requirement,” he concluded. “The Court exhaustively canvassed the text and history of the Citizenship Clause and at no point identified any evidence that the ratifiers thought themselves to be imposing a domicile limitation.”

Concurrences and Dissents

Justice Kavanaugh disagreed with the majority’s constitutional holding, but he concluded that Trump’s executive order violated a federal statute, 8 U.S.C. §1401(a). “Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.”

Justice Thomas, joined by Justice Gorsuch, argued in his 91-page dissent that “the Civil Rights Act and the Citizenship Clause guaranteed citizenship to persons born and domiciled in the United States regardless of their race. Neither guaranteed citizenship to persons who were not domiciled in the United States.” He also called the Chief Justice’s majority opinion “not historically accurate.”

“The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens,” Thomas concluded. “In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”

In her concurring opinion, Justice Jackson, joined by Justice Sotomayor, objected to the dissent from Justice Thomas. “Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott,’ and those who shared with them certain characteristics.”

“It is for this reason, he says, that ‘children who were born in the United States but [to parents] not domiciled here’ are not entitled to claim birthright citizenship. But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification.”

Justice Alito called the majority opinion a “serious mistake.” He rejected the idea that the 14th Amendment confers citizenship “on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’ women who come here solely for the purpose of giving birth to a child and then promptly return home.” And like Thomas, Alito believed the 14th Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”

Justice Gorsuch wrote to explain his agreement with Justice Thomas. “At the heart of today’s dispute lie two competing views of the Fourteenth Amendment’s Citizenship Clause,” he explained. “On one account, the Clause incorporated the English common law rule of jus soli (literally, the ‘right of the soil’),” he noted. The other account, he said, “adopted a distinctly American settler’s view of citizenship … that promises the full ‘dignity and glory of American citizenship’ to any child born in this country to parents who have made this Nation their permanent home, regardless of their race, religion, or national origin.” Gorsuch agreed with the latter interpretation.

To be sure, today’s 194-page decision from the Court is a landmark decision with many facets to be explored. But for now, birthright citizenship covers anyone born in the territory of the United States, with some very limited exceptions.

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