The US supreme court will hear arguments on Wednesday over whether Donald Trump can reverse generations of precedent and deny birthright citizenship to babies born on US soil, which would impact hundreds of thousands of children annually.
As of Wednesday morning, and per his official schedule sent out by the White House, the US president has plans to sit in on the hearing.
On his first day in office, Trump issued an executive order that sought to undo birthright citizenship, overriding the US constitution – or, as his administration has argued, interpret the constitution correctly, in defiance of supreme court precedent.
If the court rules against Trump, it would be a major hit for one of his biggest policy changes, coming after the court struck down his tariffs, another of his signature policies. It would likely anger the president, who earlier this week claimed that other countries are “selling citizenships” to the US and attacked the federal court system as “stupid” on Truth Social.
Democratic state attorneys general and advocacy groups immediately filed lawsuits against the order, arguing it extends beyond Trump’s authority. The supreme court will hear Trump v Barbara, a class action brought by parents of children who would be affected by the change.
“This Order seeks to strip away the ‘priceless treasure’ of citizenship … threatening them with a lifetime of exclusion from society and fear of deportation from the only country they have ever known,” the American Civil Liberties Union (ACLU) wrote in its initial filing of the class action case in federal court in New Hampshire last year. “But that is illegal. The Constitution and Congress – not President Trump – dictate who is entitled to full membership in American society.”
The 14th amendment, adopted in 1868 during the reconstruction era after the US civil war to codify the rights of Black Americans and reverse the Dred Scott decision, confers citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof”.
The Trump administration argues the phrase “subject to the jurisdiction thereof” means babies born in the US to people who are not lawfully present in the country are not citizens. The executive order says this includes when neither of a person’s parents were US citizens or lawful permanent residents, or if a parent has legal, but temporary, status.
The order would apply to those born in the US after 19 February 2025. The Migration Policy Institute estimated this change would increase the population of unauthorized immigrants significantly – “by an additional 2.7 million by 2045 and by 5.4 million by 2075”, a projection released last May said, based on an average of about 255,000 children born under these parameters each year.
One named plaintiff in the case is a Honduran citizen with a pending asylum application in the US who was expecting her fourth child. Another is a citizen of Taiwan who has been in the US for 12 years whose fourth child would be affected by the order; her three other children are US citizens. A third is a father, a Brazilian citizen living in the US for the past five years, whose first child was born in March 2025, after the order would be in place if it’s legally upheld.
“She fears her child will be unjustly denied the security, rights, and opportunities that come with US citizenship, leaving their future in doubt,” the lawsuit said of the person with the pseudonym Barbara.
The ACLU argues ending birthright citizenship would create “a permanent subclass of people born in the United States who are denied their rights as American citizens,” noting the case’s high stakes, “whether America will preserve the country’s tradition from its founding and constitutional promise that every child born here belongs here.”
The president cannot unilaterally overturn a constitutional amendment; that requires congressional action. But the administration is arguing not that they’re overturning the amendment, but rather interpreting it according to its intended meaning. The Trump administration wants the supreme court to reinterpret the amendment and allow the order to be enforced, overriding more than 125 years of legal precedent.
The landmark decision on birthright citizenship, United States v Wong Kim Ark, made clear that a child born to parents of Chinese descent who had permanent “domicile” in the US would be a US citizen at the time of birth under the 14th amendment. The Trump administration argues “domicile”, meaning a permanent residence, is a critical part of the interpretation, despite the word not appearing in the amendment itself.
“Birthright Citizenship was not meant for people taking vacations to become permanent Citizens of the United States of America, and bringing their families with them, all the time laughing at the ‘SUCKERS’ that we are!” the president wrote on Truth Social last year.
The administration is relying in part on the legal arguments of a white supremacist from the late 1800s, the Washington Post reported. John Eastman, a lawyer who worked with Trump to try to overturn the 2020 election results, is also a key proponent of the effort to overturn birthright citizenship, Politico reported.
While most conservative legal scholars believe the 14th amendment has been interpreted correctly, more in recent years have come to believe Trump could win. Two legal scholars wrote in the New York Times last year that “the justices will find that the case for Mr Trump’s order is stronger than his critics realize.”
