Cases before the Supreme Court inevitably present hard issues of law and almost always involve questions over matters about which the lower courts have disagreed. But the constitutionality of President Trump’s executive order limiting birthright citizenship is an easy question of law and every single judge to rule on it has found it to be unconstitutional.
On Wednesday, the justices will hear oral arguments in Trump vs. Barbara, and even for a conservative court that has repeatedly sided with the president, it is hard to imagine the justices upholding an executive order that is so clearly in violation of historical practice, the text of the Constitution and decided precedents.
When the United States was first established, it followed English law, a system through which everyone born in the country was deemed a citizen. The U.S. Supreme Court tragically departed from this system in 1857 in Dred Scott vs. Sandford, when it held that enslaved individuals were property of their owners and thus were not citizens, even if they had been born in the U.S.
However, the first sentence of the 14th Amendment, adopted after the Civil War in 1868, was intended to explicitly overrule Dred Scott vs. Sandford and to ensure that “[a]ll 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.” Both supporters and opponents of the 14th Amendment shared the understanding that it would automatically grant citizenship to all persons born within the country’s borders, except children of foreign diplomats and invading armies.
In 1898, in United States vs. Wong Kim Ark, the Supreme Court made it explicit that those who are born in the U.S. are automatically American citizens even if their parents are citizens of other countries. The court stated that under English law for more than three centuries, every child born in England to “alien parents” was “a natural born-subject unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.” The court explained that this was the law among the colonies at the time of the Declaration of Independence and in the U.S. from its inception as a country.
The court was clear that the phrase “subject to the jurisdiction thereof” was meant to exclude from automatic citizenship only the babies of foreign diplomats or hostile invaders, who are not subject to United States legal authority due to their diplomatic and combatant immunity. Meanwhile, children born in the U.S. are subject to its jurisdiction in every way.
For more than a century it was accepted law that everyone born in this country is counted as a U.S. citizen. But on Jan. 20, 2025, Trump issued his long threatened executive order limiting birthright citizenship. Under it, a child is a citizen only if born to U.S. citizens or those with green cards. Under the Trump executive order children born to parents who are in the country on visas or parents who are undocumented would not be citizens. So, for example, if a student with a valid visa has a baby while living in the U.S., that child is not a citizen.
Challenges were brought to the Trump executive order in many courts, every one of which declared it unconstitutional. The first to rule was Seattle federal District Judge John Coughenour, who responded, “I’ve been on the bench for over four decades. 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 wrote that “the Supreme Court has resoundingly rejected and no court in the country has ever endorsed” Trump’s interpretation of birthright citizenship.
Moreover, even if the Constitution was unclear on this, Trump still would not have the authority to change the 14th Amendment by executive order, which is limited to regulating the conduct of the executive branch of the federal government. This is the president redefining who counts as a U.S. citizen and nothing in the Constitution or federal law gives him the power to do that.
This is a case of profound importance. Once in effect, it would deny citizenship to approximately 250,000 children born in the United States each year. It would leave most of these children without citizenship in any country. Moreover, as the American Civil Liberties Union says in its brief, the Supreme Court’s accepting the Trump administration argument “would cast a shadow over the citizenship of millions upon millions of Americans, going back generations.”
Conservative justices constantly say the Constitution should be interpreted based on history and its text and its original meaning. All of these sources make the Trump executive order on birthright citizenship unconstitutional. The Supreme Court decision should be unanimous in striking it down.
Erwin Chemerinsky is the dean of the UC Berkeley Law School.
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