The Supreme Court is preparing to hear Trump vs. Washington, a case that could redefine the constitutional meaning of birthright citizenship for the first time in more than a century.
At issue is President Donald Trump’s January 2025 Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” which instructs federal agencies not to recognize citizenship for children born in the United States to “temporary visitors and illegal aliens” if their birth occurs more than 30 days after the order takes effect.
The court’s decision will determine not only the legal status of children born to undocumented or temporary status parents, but also the constitutional boundaries of who belongs in the American political community.
At stake is whether a president can unilaterally narrow the Citizenship Clause—an action that multiple lower courts have said contradicts more than a century of precedent.
The ruling will shape immigration policy, define the limits of executive power, and decide whether the United States continues its historically broad interpretation of jus soli—Latin for “right of the soil,” the principle that a person becomes a citizen simply by being born within a country’s territory.
The alternative is a significantly more restrictive model that could alter the nation’s demographic and constitutional landscape for generations.
The Key Line in the Constitution
In Dred Scott vs. Sandford, the Supreme Court held that Black people—enslaved or free—could not be U.S. citizens and that Congress lacked power to ban slavery in the territories.
The 14th Amendment, passed in 1866 and ratified in 1868, overturned this decision and expanded fundamental rights to formerly enslaved people.
Its Citizenship Clause states: “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.”
This principle was confirmed some years later in United States vs. Wong Kim Ark, which held that children born in the United States to immigrant parents are citizens at birth, regardless of their parents’ immigration status.
Today, U.S. citizenship law combines:
- Unrestricted birthplace-based citizenship (jus soli), granting citizenship to nearly everyone born on U.S. soil (with narrow exceptions such as children of foreign diplomats); and
- Restricted ancestry-based citizenship (jus sanguinis), granting citizenship to children born abroad to U.S. parents under statutory rules.
Both sides in Trump vs. Washington agree that the Citizenship Clause requires two things—birth in the United States and being “subject to the jurisdiction” of the United States—but they disagree sharply about what that second phrase meant in 1868 and what it means today.
Before courts could grapple with these arguments in depth, several challenges were filed immediately after the release of EO 14160.
Federal courts quickly blocked the order.
One district judge wrote that “U.S. citizenship is a right no less precious than life or liberty,” and that the policy “conflicts with the plain language of the 14th Amendment, contradicts 125-year-old binding Supreme Court precedent and runs counter to our nation’s 250-year history of citizenship by birth.”
The dispute therefore turns on the meaning of one constitutional phrase—“subject to the jurisdiction thereof”—a phrase that has divided scholars, judges, and political leaders for decades.
Some scholars, such as Akhil Reed Amar of Yale Law School, emphasize the amendment’s egalitarian ideals.
Amar writes that “if you’re born in America under the American flag, you’re an American citizen…the daughter of a president or the son of an undocumented…immigrant,” describing this as a straightforward endorsement of territorial birthright citizenship.
Others, including Kurt Lash of the University of Richmond, argue the opposite.
Lash contends that “birth on American soil by itself confers no such right,” and that the jurisdiction requirement excludes children born into a “context of refused or counter-allegiance to the United States.”
The Supreme Court’s Interpretation So Far
In the Wong Kim Ark case, the Court held that a U.S.-born child of Chinese nationals legally residing in the country was a citizen under the 14th Amendment, relying on what it called the “common-law rule” of jus soli.
The government now argues that Wong Kim Ark applies only to children of citizens and lawful permanent residents—not to children of undocumented immigrants or temporary visitors.
The administration also draws on the 1884 Elk vs. Wilkins case, which stated that “no one can become a citizen of a nation without its consent,” using that line to argue that the United States did not consent to citizenship for the U.S.-born children of undocumented immigrants.
This is the legal framework lower courts used when evaluating EO 14160 before sending the case to the Supreme Court.
How Scholars Interpret the Birthright Citizenship Debate
Legal scholars have long disagreed about how the Citizenship Clause applies to the children of noncitizens, and those disagreements now inform the Supreme Court’s review.
Many scholars build on Wong Kim Ark as a starting point and work forward from there.
Amanda Frost, a professor of law at the University of Virginia explains that the Supreme Court concluded that “all persons born in the United States—whatever their race, ethnicity, or the immigration status of their parents—are U.S. citizens, period.”
She also notes, however, that resistance to this rule persisted long after 1898.
Rogers M. Smith of the University of Pennsylvania argues that the framers intended the 14th Amendment to repudiate Dred Scott and create a broad, egalitarian rule of birthright citizenship, even though the amendment’s drafters struggled to reconcile their goals with complicated questions about Native American tribes.
In the book Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America, Garrett Epps, professor of practice at the University of Oregon School of Law, states: “The Senate struggled with the question of Native Americans, whose allegiance was thought to lie with their tribes, not the United States. Lawmakers agreed the new amendment should not automatically make them citizens, but they disagreed on how to express this.”
Other scholars take a narrower view.
Michael D. Ramsey of the University of San Diego argues that although the original meaning of the clause supports a wide rule, the framers left “little evidence that [they] considered or could have foreseen the modern implications” of universal birthright citizenship.
He notes that restrictive immigration laws did not emerge until the late 19th century, making contemporary disputes difficult for strict originalists to resolve.
Together, these perspectives frame the central question for the justices: Does the Citizenship Clause establish a simple rule based on birthplace alone, or does it require a deeper relationship of allegiance between parent and nation?
What Birthright Citizenship Advocates Say
The respondent states argue that the 14th Amendment “bestow[s] citizenship on children born in the United States regardless of…the immigration status of their parents.”
They rely heavily on Wong Kim Ark, emphasizing that “every branch of the federal government has long endorsed it.”
Their brief notes that the clause contains “no mention of parental citizenship, immigration status, ‘primary allegiance,’ or domicile,” and that reading such limits into “subject to the jurisdiction thereof” contradicts both the text and the common-law rule of jus soli.
To support their view, the states cite early cases such as Murray vs. Schooner Charming Betsy in 1804 in which it was established that people born within U.S. territory were generally presumed to owe allegiance to the United States—a principle that later supported the idea that birth on U.S. soil creates a political connection sufficient for citizenship; and Lynch vs. Clarke from 1844, an influential state-court decision which held that a child born in the United States to noncitizen parents was nevertheless a U.S. citizen by birth, helping to entrench jus soli as the default common-law rule long before the 14th Amendment.
The respondent states also rely on treatises like Frederick Van Dyne’s Citizenship of the United States, (1904) affirming that, under longstanding American law and common-law principles, nearly all children born on U.S. soil are citizens at birth, reinforcing jus soli as the governing rule and influencing early 20th-century interpretations of the Citizenship Clause.
They also invoke Reconstruction-era debates.
When asked during the Civil Rights Act of 1866 debates whether the proposed language would “have the effect of naturalizing the children of Chinese and Gypsies born in this country,” Senator Lyman Trumbull, an Illinois Republican, replied: “Undoubtedly.”
Respondents also cite Amar’s description of the broad birthright rule and argue that this reflects the Reconstruction-era Republican understanding of equal citizenship.
They point to longstanding administrative practice as well, including the State Department’s statement that children born in the United States “acquire U.S. citizenship at birth even if their parents were in the United States illegally,” as evidence that federal agencies have consistently interpreted the clause to cover U.S.-born children of undocumented immigrants.
Government research also reinforces this view. A Congressional Research Service overview notes: “Under federal law, nearly all people born in the United States become citizens at birth. This rule is known as ‘birthright citizenship,’ and it derives from both the Constitution and complementary statutes and regulations.”
Taken together, the respondent states present their case as grounded not only in the 14th Amendment’s text and Wong Kim Ark, but also in what the University of Virginia’s Frost describes as more than a century of “birthright citizenship…well established in U.S. law” for “all born on U.S. soil,” even as implementation has sometimes been contested.
What the Trump Administration Says
The White House argues that the Citizenship Clause was “adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens.”
It claims that American birthright citizenship requires “primary allegiance” to the United States—a condition it says is absent when parents are neither citizens nor lawful permanent residents—and that EO 14160 restores the clause’s original meaning.
The government further argues that extending birthright citizenship to children of undocumented immigrants has caused “substantial harm,” including creating incentives for illegal immigration and undermining national security.
It frames its position as part of a broader effort to reassert executive control over immigration and citizenship policy, arguing that universal jus soli has expanded far beyond what the 14th Amendment intended.
Supporters of EO 14160 add that limiting birthright citizenship would curb “birth tourism,” reduce unauthorized immigration, and return citizenship law to what they view as its historically correct foundations.
What Are the Implications?
A decision to narrow birthright citizenship would have sweeping consequences.
Plaintiffs estimate the order would deny automatic citizenship to more than 150,000 U.S.-born babies each year.
Judges reviewing the policy warn it could leave “tens of thousands” of children without clear legal status.
Demographic data underscore the scale: in 2014, the Pew Research Center estimated that about 275,000 babies—roughly 7 percent of all U.S. births—were born to unauthorized-immigrant parents.
An Urban Institute study reports that 15.9 million children in the United States (22.5 percent of all children) are U.S.-born with at least one immigrant parent.
Globally, unconditional jus soli is increasingly rare; only about 33 to 35 countries—mostly in the Americas—still grant automatic birthright citizenship, as many others have tightened their rules.
What Happens Next
The Supreme Court’s ruling, expected by summer 2026, will determine whether the 14th Amendment secures what one brief calls a “sweeping…grant of U.S. citizenship” to virtually all people born on American soil, or whether, as critics argue, citizenship should instead depend on a “mutual recognition of allegiance” between family and state.
Either outcome would mark the most significant reinterpretation of the Citizenship Clause since Reconstruction.
