U.S. Supreme Court upholds birthright citizenship, rejects Trump executive order

President Trump issued the executive order on the first day of his second term, seeking to bar citizenship for babies born in the U.S. to parents who entered the country illegally or who are living and working in the U.S. legally with temporary visas. The order affected people on H-1B and L-1 highly skilled work visas, as well as holders of dependent, student, temporary labour, and achievement visas, which USCIS categorizes as "lawful but temporary." The order never went into effect because every lower court judge to review it concluded it was unconstitutional; one judge described the order as 'blatantly unconstitutional.'

A ruling rooted in the post-Civil War amendment

The ACLU's Cecillia Wang, a birthright citizen born to Chinese parents, argued the case at the Supreme Court in April. In an interview with NPR, Wang said: 'in America we do not punish children for the sins of their fathers, but instead we wipe the slate clean. When you're born in this country, we're all American, all the same.' The case drew on the 1898 Supreme Court precedent of Wong Kim Ark, who was born in San Francisco in 1873 to Chinese immigrants whose parents ran a business in the city before ultimately returning to China.

Roberts' opinion reached back more than a century to anchor the ruling in the original meaning of the Fourteenth Amendment. The amendment states: 'All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.' Roberts wrote that the men who wrote the Fourteenth Amendment after the Civil War defined citizenship in broad terms on purpose, rejecting the views of those who wanted to limit citizenship. He added: 'Citizenship, then and now, was the right to have rights – to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land.' Roberts closed: 'We keep that promise today.'

Wong Kim Ark and 160 years of legal precedent

The 1898 Wong Kim Ark decision interpreted the phrase "subject to the jurisdiction thereof" to mean that all children born in the U.S. were automatically granted citizenship, with three limited exceptions, only one of which exists today — children of foreign diplomats. At the time of Wong Kim Ark's birth, no documentation was required for immigrants entering the United States. In 1895, Wong Kim Ark visited his family in China and was denied re-entry to the U.S. on grounds that he was not a citizen. He challenged the denial and won in the Supreme Court by a 6-to-2 vote. Congress subsequently codified the legal understanding of birthright citizenship established by the decision, and the broad interpretation has not been embraced by the courts or legal norms for 160 years.

A wartime test of the principle

The historical reach of birthright citizenship was reinforced by another wartime episode. During World War II, Japanese citizens were held as enemy aliens in detention camps in the United States. Newborn children of those Japanese enemy aliens were automatically granted American citizenship because they were born on U.S. soil — a fact that underscored the breadth of the principle even in times of national hostility toward a particular group.

Trump has long maintained that the Constitution does not guarantee birthright citizenship, arguing that the citizenship provision 'wasn't meant for the entire world to occupy the United States.' His administration's order also targeted people who are lawfully present in the U.S. and on the path to permanent legal status, meaning the ruling shields a wide range of American-born children, including those whose parents are pursuing green cards through skilled employment or education. The decision was issued on a Tuesday.