Justices’ decision would likely hinge on five words included in the 14th Amendment.
WASHINGTON — The U.S. Supreme Court will likely decide whether President Donald Trump can end birthright citizenship via executive order, legal scholars and attorneys tell WFAA.
On Monday, Trump signed the order, which says babies born after Feb. 19 will not automatically be considered U.S. citizens. The child can be deported if neither parent is a lawful, permanent resident of the United States.
The measure challenges precedent first cemented by the Supreme Court in 1898. The question has been considered settled law for more than 125 years.
“We think we have good grounds,” Trump said as he signed the order. “We’ll find out.”
The precedent
The Supreme Court set precedent for birthright citizenship in 1898 when Justices granted automatic citizenship to Wong Kim Ark.
Wong was born in 1873 in San Francisco to Chinese immigrants who were ineligible for naturalization and, therefore, still subject to the Emperor of China.
In 1894, Wong sailed to China for a temporary visit. When he returned in 1895, American authorities denied him re-entry to the United States.
The customs collectors cited the Chinese Exclusion Act, which had suspended virtually all Chinese immigration. For months while his trial was heard, Wong was confined to steamships off the California coast.
Justices analyzed the citizenship clause of the 14th Amendment, which guaranteed equal protection and citizenship to formerly enslaved people after the Civil War. It reversed Dred Scott v. Sandford, which held that the United States would not extend citizenship to Black descendants of Africans.
“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,” the amendment says.
The court’s decision in United States v. Wong Kim Ark hinged on six words included in the clause: “and subject to the jurisdiction thereof.”
The court settled the question of birthright citizenship, 6-2, in Wong Kim Ark’s favor.
Justices ruled that “subject to the jurisdiction thereof” only excluded from U.S. citizenship children born in certain circumstances, including children born on Native American land. That exception was later nullified in 1924 when Congress granted Native Americans full citizenship.
Today, the only applicable exception under “subject to the jurisdiction thereof” is for children born on U.S. soil to foreign officials with diplomatic immunity.
“Since then, essentially, people who’ve been born in the United States have been interpreted to be automatically citizens,” UNT Dallas College of Law associate professor Brian Owsley said. “It has been fairly settled law for quite some time.”
In subsequent years, the U.S. Congress passed laws mirroring the citizenship clause’s language.
The argument
In his executive order Monday, Trump called the Supreme Court’s decision in Dred Scott v. Sandford a “shameful” misinterpretation of the U.S. Constitution.
“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” his order says. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”
Trump contends children born to parents without lawful, permanent status in the United States are not “subject to the jurisdiction thereof.”
It’s unclear how the President’s Department of Justice will square their interpretation of the sentence with the 1898 Supreme Court decision.
“The magnitude is significant,” Owsley said. “It would be a sea change to how we view people born in the United States.”
Tuesday, states and activist groups opposed to ending birthright citizenship sued the Trump administration. They contend he lacks the authority to redefine citizenship based on his own interpretation of the 14th Amendment.
Owsley expects the debate will ascend to the Supreme Court.
“It’s going to be a hotly-contested issue,” he said.
The lawsuits seek, in part, to delay the implementation of the executive order. A federal court could stay the order’s effect until it issues a decision, which would almost certainly be appealed.
It could reach the Supreme Court, which has scrapped lesser courts’ rulings before.
“I really didn’t believe Roe v. Wade would ever be overturned and it has been, so it’s a situation where we’re looking at something unprecedented in our country’s history,” immigration attorney Eric Cedillo said.
“Again, this is an incredible departure from past precedent,” he added. “It has incredible ramifications.”
The impact
At least 1.3 million people are living in the United States with parents who are not in the country legally, the Pew Research Center estimates. It’s difficult to count the total number of children who are U.S. citizens by birthright because of the way census data is collected.
None of those people would be affected by the executive order, since it only applies to children born after Feb. 19, 2025.
However, the outcome is of special interest to DACA recipients.
President Barack Obama created the Deferred Action for Childhood Arrivals (DACA) initiative in 2012. It protected from deportation young immigrants who entered the U.S. before 2016, as long as they’d lived continuously in the states since 2007.
Enrollees are subjected to background checks and educational requirements and must stay out of serious legal trouble. They have to re-enroll every two years.
Such immigrants could obtain driver’s licenses and work permits but are not considered permanent residents or U.S. Citizens.
A generation of so-called “dreamers” are now old enough to have children. If DACA recipient’s children are born on U.S. soil after Feb. 19, the president would not consider them U.S. citizens by birthright.
“People really don’t understand what it means to be a U.S. citizen,” said Sandra Avalos, a DACA recipient whose son is a citizen by birthright. “From starting college to applying for loans for a house to being a stable parent in society — all those things that are part of the American dream — you only have those because you have a social (security card).”
Citizenship allows for opportunities and freedoms that Americans often take for granted, Avalos explained. She did not feel comfortable traveling home to visit her grandparents for 26 years.
“My parents weren’t able to be at my wedding, when I gave birth to my son or at my graduations,” she said.
Her son’s status is not threatened by the executive order because he was born before the effective date, but she said she feels for those people whose futures are less certain.
“No human being should have to experience that,” she said.
