Supreme Court Prepares to Wade Into Birthright Citizenship Debate
By Dan Gooding
The United States Supreme Court will start hearing oral arguments Thursday on whether lower courts have the power to stop President Donald Trump's plan to drastically change birthright citizenship.
While justices won't rule on the issue of whether anyone born in the U.S. is considered a citizen — at least not yet — the hearing could mark a pivotal moment for the president's agenda and its flagship legal argument: Just because you're born on American soil doesn't make you an American.
The plan to clarify the 14th Amendment and deny automatic citizenship to those born to certain immigrants and visitors has strong support from some Constitutional scholars and conservative immigration voices, while others believe Trump is trying to undo 150 years of precedent that makes the U.S. unique among its peers.
"This idea has taken root over the last half century, to the point that everybody assumed it was already a done deal, and, in fact, the Supreme Court has never ruled on this," John Eastman, senior fellow at the MAGA-aligned Claremont Institute, which is advocating for an end to birthright citizenship, told Newsweek.
"But you've got a lot of the accumulated barnacles on the wrong view that need to be peeled away."
What Is The Supreme Court Hearing About?
President Trump's executive order, issued the day he returned to the White House, seeks to limit birthright citizenship to those who, at a minimum, have legal permanent residence, rather than those in the country on temporary visas or without any documentation at all.
That order sparked 10 different lawsuits, with the high court now combining three of those – from Massachusetts, Maryland, and Washington - for Thursday's hearing.
President Trump Birthright Citizenship
President Donald Trump signs an executive order on birthright citizenship in the Oval Office of the White House in Washington, Jan. 20, 2025. AP Photo/Evan Vucci, File
Ilya Somin, chair of constitutional studies at the libertarian Cato Institute, said in a statement shared with Newsweek that it was important to remember that the hearing was about whether Trump's plan could be blocked in different parts of the country or not, and not about the legality of birthright citizenship itself.
"If ever a nationwide injunction is justified, it is here," Somin said. "A situation where Trump's order is in force for some people, but not others (or, alternatively, in some states but not others), creates obvious confusion and anomalies, especially when it comes to a policy (citizenship rules) that is supposed to be uniform throughout the nation."
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In the past, Supreme Court justices have shown skepticism for universal injunctions by lower courts and have sought to weigh in as soon as possible. Thursday's hearing falls after the court's usual window for oral arguments, suggesting that some or all justices did not want to wait until the fall to weigh in.
Five Words in the 14th
Still, the focus of the arguments will undoubtedly be on birthright citizenship itself, with briefs filed by the Trump administration and the organizations fighting its plan arguing the merits and demerits of birthright. Scholars, immigrants' rights groups, and 183 Democratic members of Congress have all submitted additional filings arguing for it.
The joint filing from the Democratic lawmakers highlights the divide over what the 14th Amendment means when it comes to birthright citizenship, calling the Trump administration's reading of the amendment "contorted" and claiming that upending the current understanding goes against both the Constitution and the precedent of immigration law.
Birthright Citizenship Debate
Newsweek Illustration/Canva
"Plaintiffs have conclusively demonstrated in the courts below that the Fourteenth Amendment guarantees citizenship to all persons born in the United States and subject to its laws, and we need not repeat that proof here," the group wrote.
For Eastman, the former Trump lawyer who spearheaded efforts to block the certification of the 2020 election and is now working on behalf of Claremont, the right to citizenship for all born on U.S. soil is not guaranteed for all.
Eastman and others on his side of the debate argue that five words in the 14th Amendment — "subject to the jurisdiction thereof" — suggests that citizenship should only be granted in cases where the parents have pledged some allegiance to the U.S., such as becoming citizens themselves or through seeking a green card.
"Others have argued it will just create chaos, nobody will know who's a citizen and who's not," Eastman told Newsweek in an interview. "Most of the rest of the world doesn't have this notion that you're born here, you're automatically a citizen. You have to be somehow part of the political community, and so you can look at it what other countries do and find out it's rather simple."
Would Ending Birthright Ease Illegal Immigration or Add to It?
Part of that argument is based on the theory that reducing access to birthright would dissuade some immigrants from trying to reach the U.S. to give birth, therefore cutting the undocumented population.
The Migration Policy Institute, a non-partisan organization, suggested the opposite outcome was more likely. In a study published Tuesday ahead of oral arguments, the group estimated that should birthright end, the number of illegal immigrants would grow by 2.7 million by 2045, and 5.4 million by 2075, because of the number of children born on U.S. soil to undocumented parents would stay the same, though those people would now be considered to be here without protections or status.
A U.S. Border Patrol agent searches
A U.S. Border Patrol agent searches for immigrants by the U.S.-Mexico border fence on November 03, 2022 near Douglas, Arizona John Moore/Getty Images
"Beyond significantly adding to an unauthorized immigrant population that MPI estimates stood at 13.7 million as of mid-2023, the end of birthright citizenship for many children would create a self-perpetuating, multigenerational underclass—with U.S.-born residents inheriting the social disadvantage borne by their parents and even, over time, their grandparents and great-grandparents," MPI said in its analysis.
As Newsweek previously reported, it is extremely difficult to track which babies were born with birthright citizenship protections each year. While MPI estimates the number to be around a quarter million every year, Census and Centers for Disease Control and Prevention (CDC) data sets do not go deep enough, and hospitals generally do not ask expecting mothers for their immigration status.
If Trump's executive order on birthright is eventually enacted, some experts have said a new level of bureaucracy would need to be introduced to ensure the clarified rule was honored.
One concern during the 2024 election campaign was that those already granted birthright citizenship could lose it, though Trump's executive order in January provided clarity there.
"It applies prospectively only and the reason I think that so important is, for maybe half a century or more, our government has been treating people born on U.S. soil no matter what as though they were citizens," Eastman said.
"Those people have built lives and come to rely on that view, even though I believe the view was erroneous. So, President Trump's order perspective only means we're not going to pull the rug out from people that we've been saying something else to for a long time."
Until the justice rule differently, Trump's executive order remains blocked and birthright citizenship continues to apply to all newborns in the U.S.
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