Supreme Court Justices Hushed, but Not Silent, on Birthright Citizenship

Supreme Court justices have generally been reluctant to weigh in on birthright citizenship, but they have offered a smattering of comments on the issue over the years.

Why It Matters

On Monday, President Donald Trump issued an executive order to end birthright citizenship, the legal right to U.S. citizenship held by anyone born on U.S. soil, regardless of whether the person’s parents are citizens. It was one of his first acts upon returning to the White House.

The order is already facing a wave of legal challenges. Many view it as a violation of the 14th Amendment, which cannot be altered by an executive order or legislation. The challenges are likely to make their way to the Supreme Court, which would be tasked with determining whether the Constitution requires birthright citizenship.

What To Know

Supreme Court justices have offered few public comments about birthright citizenship, as the Court hasn’t issued a major ruling on the matter in over a century.

This means there’s little indication about how the current justices may end up voting, though many legal experts believe Trump’s arguments will likely fail, even with the Court’s conservative supermajority.

Conservative justices Samuel Alito and Amy Coney Barrett were both asked about where they stand on birthright citizenship during their 2006 and 2020 confirmation hearings, respectively. But both declined to take a position, saying that doing so would be improper since the Court could end up hearing a case on the matter.

“My answer is that it is inappropriate for a sitting judge or for a nominee to a judicial position to offer opinions on constitutional questions that are percolating at that time and may well come before that judge or that nominee. It may turn out to be a very simple question,” Alito said.

He continued, “It may turn out to be a complicated question. Without studying the
question, I don’t know and I wouldn’t—and even if I had an initial impression, I wouldn’t voice it here. I would have to go through the whole judicial decision-making process before reaching a conclusion that I would be willing to express.”

Barrett said during her confirmation hearing it would be “it would be improper for me as a sitting judge to opine on it” because of ongoing litigation on the matter.

Supreme Court Conservatives Likely to Reject Trump Order, Experts Say

Former federal prosecutor Neama Rahmani told Newsweek on Wednesday he expects “the majority of the conservative justices to reject Trump’s order on birthright citizenship.”

“The 14th Amendment is clear. Anyone born in the United States is a citizen. This is consistent with Supreme Court precedent as well,” he said.

Barbara McQuade, also a former federal prosecutor, told Newsweek the 14th Amendment’s “plain language” means the Court’s textualists are likely to uphold birthright citizenship.

“The executive order tries to define what it means to be ‘subject to the jurisdiction’ of the United States, but it goes against prior case law. It is the role of the courts to interpret the law, not the executive branch,” she said.

Rahmani said the Court’s “ultraconservative” justices may consider an argument that “children of undocumented parents are not subject to the jurisdiction of the United States and are therefore not citizens.” But that argument will be “rejected by most of the mainstream justices, even the conservative ones,” he added.

What Does the 14th Amendment Say?

Legal experts say the 14th Amendment makes clear the legality of birthright citizenship.

It reads: “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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The amendment was ratified on July 9, 1868, three years after the Civil War ended, to guarantee the federal rights of freed slaves.

Birthright citizenship was upheld by the Supreme Court in the pivotal 1898 case United States v. Wong Kim Ark, when the Court said a a man born in San Francisco to Chinese parents was entitled to U.S. citizenship.

What People Are Saying

Anthony Romero, executive director of the American Civil Liberties Union (ACLU), said in a statement: “Denying citizenship to U.S.-born children is not only unconstitutional — it’s also a reckless and ruthless repudiation of American values. Birthright citizenship is part of what makes the United States the strong and dynamic nation that it is. This order seeks to repeat one of the gravest errors in American history, by creating a permanent subclass of people born in the U.S. who are denied full rights as Americans.”

Donald Trump said in the statement announcing his birthright citizenship executive order: “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text.”

What Happens Next

At least two legal challenges have already been filed against the exeuctive order—one by the ACLU and the other by 18 states, which argued the order would increase their financial burdens.

These challenges are likely to play out in court over the coming months.