What's at Stake as Trump's Assault on Birthright Citizenship Heads to the Supreme Court

Yahoo

13-05-2025

The Supreme Court will hear oral arguments over President Donald Trump's executive order to end birthright citizenship on Thursday. Trump signed the order, 'Protecting the Meaning and Value of American Citizenship,' on the first day of his second term, but it has since been halted by nationwide injunctions issued by three separate federal district courts.
The Supreme Court is taking up the issue after the Trump administration filed emergency appeals asking the justices to narrow the injunction orders so the policy could move forward in some capacity while the issue is battled out in courts around the country. Twenty-two states have sued over the ostensibly unconstitutional executive order, which seeks to end the practice of granting citizenship to anyone born on U.S. soil.
Rolling Stone spoke with legal experts Christopher M. Lapinig and Christopher W. Schmidt about the significance of the Supreme Court's decision to hear oral arguments, the merits of the cases challenging the order, and the broader impact of the Trump administration's attack on the 14th Amendment.
Lapinig is an attorney with Asian Law Caucus, co-counsel alongside American Civil Liberties Union Foundation Immigrants' Rights Project, State Democracy Defenders Fund, NAACP Legal Defense & Educational Fund, and others on New Hampshire Indonesian Community Support, et al v. Donald J. Trump, et al (this birthright citizenship case is separate from those the Supreme Court is convening over on May 15). Schmidt is a law professor and co-director of the Institute on the Supreme Court of the United States at Chicago Kent College of Law and a research professor at the American Bar Foundation.
It's unclear exactly which questions the Supreme Court will take up on Thursday. But the oral arguments will likely have less to do with the constitutionality of birthright citizenship, and more to do with judicial authority and a contentious issue that has affected both parties in recent administrations: how lower courts can issue nationwide injunctions essentially inhibiting a president from instituting policies nationwide. The decision on that issue would not only impact these birthright citizenship cases, but the hundreds of other lawsuits challenging the Trump administration's actions that are in the pipeline.
Here's what else is at stake:
The 14th Amendment, passed by Congress in 1866 and ratified in 1868, is pretty cut and dry regarding birthright citizenship: '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.' It has long been widely interpreted that anyone born on U.S. soil is an American citizen, regardless of the citizenship of the child's parents.
'It essentially was part of the efforts to make sure that slavery would not happen again, or anything resembling slavery would not happen again. And so the drafters of the 14th Amendment were abolitionists, right? They were anti-slavery, and they created this language with the idea of anti-subordination in mind,' Lapinig says. 'And what that means is essentially that they wanted to make sure that no person in the United States would be subordinated or relegated to second-class citizens or something else by virtue of their race or their ethnicity or national origin.'
Drafters built 'subject to the jurisdiction thereof' into the amendment's language. Lapinig says they 'contemplated that birthright citizenship should not extend to invaders, for example,' but that 'it's otherwise clear from the sort of discussions leading up to the enactment of the 14th Amendment that, of course, the 14th Amendment was to make sure that children of formerly enslaved people would be citizens by birth.'
'They also made clear,' he continues, 'that they knew that, for example, children of immigrants from places like China or anywhere else would also be U.S. citizens by birth if they were born in the United States.'
The 'subject to the jurisdiction thereof' line in the 14th Amendment is the key to the Trump administration's argument.
'They are arguing that the categories of people that they are attempting to exclude are not subject to jurisdiction,' Schmidt says. 'Their argument being that if you're not legally in the country, [or] temporarily, you're not, in some sense, subject to the jurisdiction of the United States. Now, even as I talk through that, it doesn't seem to really resonate in any meaningful way when people think about why you're subject to jurisdiction.'
'That was put in there to exclude people like someone born to a foreign diplomat who is subject to a different set of rules, even when they're in the United States, perhaps also Native American populations who are not fully subject to the control of the United States. So, there were certain groups of people who were thought to fit in that category at the time.'
Both the text and the amendment's history are not favorable to Trump's argument.
''Subject to jurisdiction' basically means, does the United States sovereign have control, or can it regulate you, like it can regulate other people? And whether you're in the country legally or not, you're subject to the sovereign authority of the United States, which is why [the jurisdiction argument] just doesn't seem to make a lot of sense, just in terms of the language,' Schmidt says. 'Also, for those people who studied immigration policy around the time of the 14th Amendment … the categories of 'legal,' 'illegal,' 'documented,' 'undocumented' — they were not categories that had much or any meaning at the time. The process by which someone would enter the country or leave the country was not nearly as regulated … And there wasn't this sort of idea that there is a separate category of people who are undocumented or illegal immigrants.'
He adds: 'This is a provision of the Constitution that has always struck me as being more clear than much of the Constitution.'
Notably, beyond the text and history arguments when interpreting the Constitution against Trump's executive order, there is also strong precedent against it with the Supreme Court's ruling in United States v. Wong Kim Ark, in which the justices decided 6-2 in favor of Wong Kim Ark.
In the New Hampshire lawsuit, along with the other cases involving birthright citizenship, lawyers cite the 1898 case. Wong Kim Ark was a Chinese-American cook born in San Francisco in 1873. 'His parents, who were from China, because of the Chinese Exclusion Act, were ineligible to be U.S. citizens,' Lapinig says.
Wong Kim Ark left the U.S. for China to see his family and his wife, whom he married on a previous trip ('Chinese immigration, especially Chinese women, were restricted' at the time, Lapinig says), but when he returned home to San Francisco, he was denied reentry by immigration officials on the claim that he was not a U.S. citizen, despite being born in San Francisco. He and his lawyers argued he was a U.S. citizen under the 14th Amendment. The case made it all the way to the Supreme Court, which sided with Wong Kim Ark. The ruling 'enshrined the right to birthright citizenship for all babies, all children born in the United States to this day,' says Lapinig.
In addition to the pretty straightforward legal precedent against Trump's executive order, Schmidt notes that it's 'just established practice' that birthright citizenship applies to anyone born in the U.S., even if their parents are undocumented, and that 'Congress has been operating under the assumption this is the proper reading of the 14th Amendment for generations.'
The Supreme Court's move to hear oral arguments is unusual because typically when the Supreme Court schedules oral arguments, it's after granting certiorari, meaning the court has agreed to review a decision from a lower court. 'The striking thing about the granting of oral arguments in the birthright citizenship cases is that they did not grant certiorari in any of the cases, nor did they identify a question presented that they're going to be talking about,' Schmidt says.
There are a couple of topics that could be addressed on May 15. The first is the one Trump brought to the court: the validity of nationwide injunctions, which the district courts involved in the cases issued after deeming the executive order likely unconstitutional. 'This is what the Trump administration went to the court saying: 'We want you to lift these nationwide injunctions, because it's an abuse of judicial authority,'' says Schmidt. 'So, it's highly likely that the court will want to hear some discussion simply about that problem, which certainly is sharply put into focus with this case, but it actually transcends this particular case. It's just about the scope of district court authority on these national issues.'
The other topic is the substantive question of the lawsuits, which is unlikely to be discussed on Thursday as the administration only asked the court, so far, to narrow the nationwide injunctions. The question is a big one, though: 'The constitutionality of a redefinition of birthright citizenship away from what's been understood for over 100 years, to make it more narrowly applied, namely, at least according to the Trump executive order, to not apply to people who were born in the United States but to parents who are not in the United States with legal documentation or are only here temporarily,' Schmidt says.
Babies born after Feb. 19, 2025 to parents who do not have U.S. citizenship or permanent immigration status in the U.S. are the target of the executive order, should it stand. It is unclear how this would be enforced if the courts do ultimately allow it to stand.
'Anyone that is even on a visa that, in theory, could lead to a green card, like, say, an H-1B visa, which is a very common sort of skilled worker visa that is issued in the United States [would be vulnerable],' Lapinig says. 'If at that point, they're only put only on an H-1B and have not quite obtained legal permanent residents in the United States, then the executive order would consider their children, their babies, born to be ineligible for their birthright citizenship.'
Other visa holders, such as students, exchange visitors, tourists, athletes, and entertainers would also fall under this umbrella, as would Deferred Action for Childhood Arrival (DACA) recipients, and people with humanitarian visas, among others.
'This is the president of the United States declaring what at least takes the form of an authoritative interpretation of the Constitution. So simply the significance of who is making the claim and the significance of how much the claim would affect people does seem to indicate that allowing lower court decisions to do the work for the Supreme Court … it has always struck me as unlikely,' says Schmidt.
There is also likely a strategic reason the Supreme Court might want to take this case up. While the GOP-controlled court may give Trump some wins, like it did with the Trump immunity case last July, it's likely 'the court really wants to assert that it's not just simply a rubber stamp for the Trump administration, and it wants to find opportunities to also assert its role in this whole process,' Schmidt says. 'So therefore, it wants to find some Trump administration initiatives to strike down, and this has always struck me as easy pickings. The law is so clear, so well-established, and the impact of this on American society would be very disruptive, quite radical, quite harmful.'
'It is just head spinning, the amount of activity coming out of the executive branch that is constitutionally and legally questionable, and the burden that's going to place on the courts,' Schmidt adds. 'It's a question about whether the courts are going to be spread so thin with these really major issues, and whether they want to be a little strategic about which cases they're going to take on. … They might just allow the lower courts to take this one. I still don't think that's likely, but it is an option.'
Should Trump's executive order be implemented as is, the policy would create an 'underclass of individuals,' says Lapinig, which is something the drafters of the 14th Amendment worked to combat. 'The 14th Amendment was truly an effort to make sure that slavery itself would not happen again in the United States, but also that nothing like slavery would happen again, as in that there would never be the creation and growth of an underclass of people in the United States that were denied off their race or ethnicity or ancestry, equal rights to others.'
'This executive order would create, dramatically, a large underclass of people in the United States that, in turn, would not be eligible for any public benefits, or [other] aspects of public support — and all Americans would be affected, because they are in your communities,' he adds. 'The fabric of every community in the United States would be affected in some way because there would be the presence of folks who would unfortunately be part of this underclass of people. And so those communities would have to — whether on an individual level or on a community level — deal with the ramifications of children who are or who have been, who will be excluded from membership among the ranks of U.S. citizens.'
As for the New Hampshire v. Trump lawsuit, which was filed hours after Trump signed the birthright citizenship executive order on his first day in office on Jan. 20, Judge Joseph Laplante issued a preliminary injunction on Feb. 10. On April 10, Trump and his administration filed a notice of appeal.
'We are very confident in our lawsuit, in the legal merits of our lawsuit, and our position that this executive order is completely and flagrantly unconstitutional,' Lapinig says. 'We know that the law — has stood for as I mentioned over 120 years — is clearly on our side, and so we will just continue to litigate our lawsuit and do what we can to make sure that this executive order is never implemented.'
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