Summary
The Supreme Court on Wednesday heard arguments in the Trump administration’s appeal of a lower-court ruling that blocked an executive order seeking to limit birthright citizenship for children born in the United States to someone in the country illegally or temporarily. Federal courts have repeatedly prevented the order from taking effect, including a ruling by a judge in New Hampshire that said the order “likely violates the Fourteenth Amendment of the Constitution” and federal law, according to the case record described in a compilation of judicial statements.
The question before the justices, as presented by the judges who rejected the executive order, turns on the meaning of the first sentence of the 14th Amendment’s Citizenship Clause. That clause makes citizens of “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” a formulation judges in the dispute have treated as establishing citizenship by birth in the United States subject to specific, narrow exceptions.
Justice Sonia Sotomayor, writing in June and joined by Justices Elena Kagan and Ketanji Brown Jackson, argued that the president’s approach breaks from the Constitution’s meaning. Sotomayor wrote that “With the stroke of a pen, the President has made a ‘solemn mockery’ of our Constitution,” quoting an earlier 1809 opinion written by Chief Justice John Marshall. She aligned with lower-court rulings that had blocked the administration’s effort, and she also dissented from a prior decision by the court’s six conservative justices concerning the use of nationwide injunctions in the broader birthright citizenship dispute.
Sotomayor’s dissent described the executive order’s request for nationwide relief as departing from the government’s typical approach. She wrote that “Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.” She also relied on a dictionary reference from 1865 to interpret what it means to be “subject to the jurisdiction” of the United States, writing that “To be ‘subject to the jurisdiction’ of the United States means simply to be bound to its authority and its laws.”
Sotomayor said the legal answer follows straightforwardly from that framing. “Few constitutional questions can be answered by resort to the text of the Constitution alone, but this is one. The Fourteenth Amendment guarantees birthright citizenship,” she wrote. In the same body of writing, Justice Amy Coney Barrett’s response emphasized the limited posture of the earlier case, stating that the “principal dissent’s analysis of the Executive Order is premature because the birthright citizenship issue is not before us,” and noting that because it was not before the court, “we take no position on whether the dissent’s analysis is right.”
Lower courts, meanwhile, have blocked the executive order using a reading they said is consistent with long-settled precedent. In New Hampshire, U.S. District Judge Joseph N. LaPlante wrote in July that “The Executive Order likely violates the Fourteenth Amendment of the Constitution” and federal law, applying his ruling to a nationwide class of children born to mothers who are in the United States illegally or temporarily. LaPlante wrote that denying citizenship would render children “either undocumented noncitizens or stateless entirely” and that “The children would risk deportation to countries they have never visited.”
In Maryland, U.S. District Judge Deborah Boardman upheld her earlier decision in favor of immigrant rights groups and their clients challenging the order. Boardman wrote that the court reaffirmed a prior finding that “the Executive Order flouts the plain language of the Fourteenth Amendment to the United States Constitution, conflicts with binding Supreme Court precedent, and runs counter to our nation’s 250-year history of citizenship by birth,” adding that the plaintiffs were “extremely likely to succeed on the merits” of their constitutional challenge, according to the account compiled from the decisions.
Several appeals courts also rejected the order. In California, U.S. Circuit Judge Ronald Gould wrote for a unanimous panel in July that the executive order’s proposed interpretation is unconstitutional and that the district court was correct to reach that conclusion. Gould wrote that “The Defendants’ proposed interpretation of the Citizenship Clause relies on a network of inferences that are unmoored from the accepted legal principles of 1868,” and he said the executive order sought to qualify the clause by adding that the person must be a child of a citizen or lawful permanent resident, which he said contradicted the clause’s text and precedent. Gould’s opinion cited Wong Kim Ark and “Executive Branch practice for the past 125 years,” and he wrote that “We reject this approach because it is contrary to the express language of the Citizenship Clause, the reasoning of Wong Kim Ark, Executive Branch practice for the past 125 years, the legislative history to the extent that should be considered, and because it is contrary to justice.”
Gould noted that the dissent by Judge Patrick Bumatay would have dismissed the case on standing grounds, without reaching the ultimate legality of the order. In Massachusetts, U.S. Circuit Judge David Barron wrote for a unanimous three-judge panel in October, describing the fundamental question as not difficult and pointing to historical efforts to restrict birthright citizenship. Barron wrote, “It is not, which may explain why it has been more than a century since a branch of our government has made as concerted an effort as the Executive Branch now makes to deny Americans their birthright,” and he tied the executive order’s challenge to the 14th Amendment’s post-Civil War context.
Judges drawing on Wong Kim Ark have presented the 1898 decision as central to their legal framework. The compilation describes the majority opinion by Justice Horace Gray holding that a child born in San Francisco to Chinese parents was a citizen under the Constitution’s citizenship-by-birth rule. Gray’s opinion quoted that the amendment’s “real object” was to exclude, by limited exceptions, “the two classes of cases” of children of alien enemies in hostile occupation and children of diplomatic representatives, and it stated more generally that the amendment, “in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color.”
In dissent, the compilation describes Chief Justice Melville Fuller arguing that the child could not be a citizen because his parents still owed allegiance to the Chinese emperor and were not fully “subject to the jurisdiction” of the United States. Justice John Marshall Harlan, according to the account, joined that dissent. The Supreme Court’s hearing Wednesday is expected to decide whether the Constitution’s Citizenship Clause, read in light of precedent like Wong Kim Ark, bars the administration’s effort to narrow birthright citizenship based on a parent’s immigration status.