Supreme Court Hears Arguments in Birthright Citizenship Case

Action: On April 1, the Supreme Court heard arguments in Trump v. Barbara, a landmark case dealing with a January 2025 Executive Order in which the President directed Federal agencies not to recognize the citizenship of individuals whose mothers were either unlawfully or temporarily present in the US and whose fathers were not citizens or lawful permanent residents.¹ Courts have thus far blocked interpretation of the Order. The Supreme Court is expected to issue its decision in late June or early July.

Trusted Insights for What’s Ahead^®

• The President’s Order reinterpreted the traditional understanding of the Fourteenth Amendment which states in part, 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.” Ratified following the Civil War, the Amendment gave citizenship to formerly enslaved people who had been denied citizenship by the Supreme Court’s decision in Dred Scott v. Sandford (1857).
• In a later case, United States v. Wong Kim Ark (1898), the Supreme Court held that a child born in the US to parents who were subjects of the Emperor of China was a US citizen, reinforcing the position that the Fourteenth Amendment grants citizenship to nearly all persons born in the US, subject to narrow exceptions such as children of foreign diplomats.
• Many questions from the Justices concerned the phrase “subject to the jurisdiction” of the US. The government argues that this requires more than mere presence in the US but rather requires full political allegiance, citing the Civil Rights Act of 1866 and statements by its author Senator Lyman Trumbull that equated jurisdiction with not owing allegiance elsewhere. The government also argued that the parents’ lawful domicile establishes the requisite allegiance to the US.
• Respondents countered that the Court ruled in Wong Kim Ark that the Fourteenth Amendment embodies the English common law rule of jus soli – that birth in the sovereign’s territory convers citizenship. The respondents also pointed to contemporaneous Federal court decisions that extended citizenship to children of “temporary sojourners.” Justices presented hypotheticals about how the Order would impact the citizenship of children born to those with dual citizenship, whose parents are unknown, or whose parents had been trafficked into the US.
• Birthright citizenship is relatively uncommon – about 30 countries (mostly in the Americas) have a substantially similar version of it and another 50 have a limited version of it.² Justice Kavanaugh asked about this during oral arguments, while noting that is irrelevant to the constitutionality of the President’s Order. Notably, some countries, including the United Kingdom, Australia, and India have over time transitioned from conferring citizenship with few exceptions to all those born in those countries to systems conditioning citizenship on the status of one of the child’s parents.
• The Administration has argued that circumstances require narrowing the interpretation of the Amendment, citing birthright citizenship as an incentive for individuals to enter the country illegally or for foreign companies to facilitate “birth tourism” – describing this as a “new world” that the authors of the Amendment could not have anticipated. However, the Chief Justice retorted that “it’s a new world. It’s the same Constitution.”
• Legal scholars expect that the Court will rule against the Administration’s Order and likely also uphold an interpretation of the Fourteenth Amendment that supports birthright citizenship.³
• What this means for business:  A decision overturning birthright citizenship would introduce significant uncertainty for millions of Americans. Though the government indicated that it only planned to apply the Order prospectively, Justices questioned whether that determination was durable. It could call into question the status of millions of individuals who are US citizens under current law and raise the possibility that this or a future Administration may seek to revoke citizenship for those individuals. In that event, some employees could be reclassified, and this could easily affect future labor pools. However, as seems likely, a ruling overturning the Order could provide employers and employees with certainty about their legal status.