This week, President Trump’s attempts to redefine birthright citizenship will reach the Supreme Court for the first time during his second term. The court will be looking at significant administrative actions related to this issue.
Right now, the judiciary isn’t directly challenging the legality of Trump’s order, which seeks to deny automatic citizenship to children born on U.S. soil to parents lacking permanent legal status. Instead, the administration’s request focuses on limiting several national injunctions imposed by various district judges, arguing that those injunctions have overreached.
This situation has already sparked renewed discussions about legal rights and the effectiveness of presidential reforms.
Trump stirred things up from day one of his presidency by issuing an executive order aimed at restricting birthright citizenship for children born in the U.S. to parents without legal status, aligning with promises he made during his campaign.
The order has faced challenges in ten separate cases, with some currently on emergency appeal to the Supreme Court.
A judge is set to discuss the national injunction issue in a rare emergency hearing on Thursday, which will determine if lower courts can issue such injunctions against Trump’s order.
Underlying this is a substantial debate around the citizenship clause of the 14th Amendment, a discussion that crosses political lines and has potential implications for the Supreme Court. Many scholars maintain that birthright citizenship applies to nearly all individuals born in the U.S., with few notable exceptions.
Within conservative legal circles, Trump’s order has ignited debate, leading to a wave of academic analyses and public discussions. Two law professors amplified the debate in February by suggesting in a New York Times piece that Trump could prevail if the Supreme Court weighed in.
They argued that if the court examines this issue, it might find Trump’s legal stance stronger than critics believe, pointing to the narrow eligibility requirements for citizenship.
This narrower view traditionally excludes children of diplomats or those born in hostile situations. However, some assert it should also apply to non-citizen children.
Kurt Rush, a law professor at the University of Richmond, published a paper in February arguing that children of non-citizens are analogous to Native Americans at the time of the 14th Amendment, who were not considered under U.S. sovereignty. He suggests that these children, born to families that reject U.S. authority, could be seen as lacking automatic citizenship.
This viewpoint has generated criticism. Evan Barnick, a law professor at Northern Illinois University, identifies as an originalist and has written critiques suggesting that Rush’s analogy is flawed, pointing out significant differences between the realities faced by Native Americans and those faced by today’s non-citizens.
He noted that Native Americans were protected by treaties, whereas non-citizens and their children lack similar protections under current laws.
The discussions surrounding birthright citizenship have become quite common in legal circles, with many taking part in in-person debates. Barnick believes that traditional understandings of citizenship should prevail, while Wormann, also an originalist, contends that the issue remains unresolved.
Views among conservative judges vary, such as U.S. Circuit Judge James Ho, who once advocated for the traditional view of birthright citizenship but seems to have shifted his perspective over time.
Despite ongoing heated discussions, the Supreme Court’s task this week is to determine whether a national injunction can be issued against Trump’s orders, rather than providing relief to only those directly involved in the lawsuits.
This has led to numerous states, lawmakers, and advocacy groups questioning whether the Constitution guarantees citizenship to children born in the U.S. to non-citizens.
In a brief filed against the government’s position, over 180 Democrats emphasized that the president should follow the political process and adhere to constitutional guidelines, rather than bypassing them. They asserted that unless Congress alters the law, the president must comply with existing constitutional structures.
