Trump Seeks to Upend Citizenship Rules at Supreme Court (2)

When Donald Trump suggested he might end automatic birthright citizenship by executive order in 2018, the idea was unimaginable enough that then-House Speaker Paul Ryan dismissed it. The president, he said, “obviously cannot do that.”

Ryan, a Republican who stepped down months later, pointed to the text of the Constitution’s 14th Amendment, a post-Civil War provision long understood to guarantee citizenship to virtually everyone born on US soil.

Demonstrators outside the US Supreme Court in May 2025, when the justices were considering whether to allow President Donald Trump’s executive order restricting birthright citizenship to start taking effect while a lawsuit proceeded.

Photographer: Kent Nishimura/Bloomberg

But the battle lines have shifted. The Supreme Court hears arguments Wednesday morning in Washington amid Trump’s assertion that the provision was designed to cover only the children of freed slaves. Some Republican lawmakers now back Trump. More significantly, a small contingent of conservative scholars has joined the cause, pressing newly constructed arguments that the clause was originally understood to be far narrower than the conventional wisdom now holds.

Read More: Supreme Court to Review Trump’s Birthright Citizenship Curbs

Those contentions are central to the fate of a Trump executive order that would block citizenship for an estimated 250,000 children of undocumented immigrants and temporary visitors each year. Democrats say Trump’s plan would also strip millions of current Americans of their citizenship, along with their ability to vote and get passports. Trump issued the order last year on his first day back in the presidency.

Trump said Tuesday he plans to attend the argument, a step that would create an unusual spectacle inside the courtroom. Although presidents occasionally go to ceremonial Supreme Court sessions — such as the formal investiture of a new justice — no chief executive has sat through an argument, at least in the modern era.

Should Trump attend, he would sit just a few feet away from the justices, including those he derided in personal terms after the court struck downhis signature global tariffs in February.

The case will test the conservative-controlled Supreme Court’s embrace of “originalism,” the judicial philosophy that has produced transformative rulings on guns and abortion. The approach focuses on the Constitution’s words and the meaning they held when adopted, relying heavily on historical evidence.

“If Trump’s position loses, it will be because of originalism,” said Ilan Wurman, a University of Minnesota law professor who filed a brief in support of Trump. “It will be because two or three of the Republican-appointed justices think Trump is wrong on the meaning and the history” of the 14th Amendment.

Critics say Trump is seeking to rewrite the 14th Amendment, which was ratified in 1868. The first sentence of the amendment promises citizenship to “all persons” who are born in the US and “subject to the jurisdiction thereof,” a provision many scholars, advocates and public officials say is straightforward in its breadth.

Trump and his allies “try to gaslight the American people and suggest that the citizenship clause of the 14th Amendment doesn’t say what it actually says,” California Attorney General Rob Bonta, a Democrat who signed a brief urging the court to rule against Trump, said in an interview. “It’s not up for debate. It’s a constitutional right.”

Pivotal Precedent

The broad position has found plenty of adherents, past and present. The Supreme Court ruled in an 1898 decision known as US v. Wong Kim Ark that the citizenship clause covered a man born in California to two Chinese parents. The 6-2 decision scrutinized the phrase “subject to the jurisdiction thereof” and concluded it was written to exclude only a few narrow classes of people, including the children of invaders, foreign ambassadors and Native Americans.

“Wong Kim Ark itself is an originalist decision,” said Cody Wofsy, a lawyer at the American Civil Liberties Union, which is challenging the executive order on behalf of affected immigrants. “What it explained is that the meaning of the words of the Constitution were enshrining the longstanding legal rule that people born in this country are citizens,” subject to those few exceptions.

More recently, federal courts have uniformly ruled against Trump’s initiative, at times with sharp language. Republican-appointed US District Judge John Coughenour in Seattle last year called the executive order “blatantly unconstitutional” and said it “boggles my mind” that a lawyer could argue to the contrary.

The ACLU and its allies say those opinions are buttressed by a wealth of historical evidence about the American and English “common law” that formed the legal backdrop for the 14th Amendment. They also point to comments by lawmakers including Senator Jacob Howard, who they say proposed the key language in 1866 as a way to establish a clear, broad constitutional rule.

US President Donald Trump, right, and D. John Sauer, US solicitor general.

Photographer: Annabelle Gordon/Bloomberg

Trump has cast the citizenship clause as being solely about “babies of slaves,” a contention echoed by his top Supreme Court lawyer, Solicitor General D. John Sauer. “The 14th Amendment’s citizenship clause was adopted to grant citizenship to freed slaves and their children — not to children of temporarily present aliens or illegal aliens,” Sauer wrote in the opening words of his primary brief.

Guns and Abortion

Wurman and a handful of other scholars say they now have historical evidence to buttress Trump’s position. In a brief filed in support of Trump, Wurman said birthright citizenship stemmed from the idea of a “mutual compact” between the parents and the sovereign authority – something he says isn’t present when an immigrant is in the country illegally.

“This is a surprisingly difficult issue,” Wurman said in an interview. “If you believe in the conventional wisdom, then I guess it’s easy – it’s open and shut. But there’s lots of evidence on the other side.”

The Supreme Court’s conservatives leaned on academic research when they declared that the Constitution protects individual gun rights in 2008 and that it doesn’t guarantee a right to abortion in 2022. Both rulings focused intensely on American and English legal history, drawing on scholarly debate that had developed over the course of years.

By contrast, the originalist support for Trump’s position on birthright citizenship developed only after he issued his executive order, says Evan Bernick, a law professor at Northern Illinois University College of Law. The three 21st century law review articles Sauer cites in his brief are all from 2025.

Bernick, who filed his own brief opposing the executive order, called the recent research “entirely unconvincing.”

One possibility is that the court could sidestep the 14th Amendment debate and toss out Trump’s executive order as violating similarly worded statutes enacted in 1940 and 1952. That would leave open the possibility that Congress could change those laws and re-ignite the battle.

“I’d take that win,” said Bonta, the California attorney general. “But it would be nice if they reaffirmed, just for clarity and to shut the door on any future attempts.”

The case is Trump v. Barbara, 25-365.

--With assistance from Ben Bain.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

Sara Forden

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