By accepting the case for deliberation, the Supreme Court has indicated that significant advances have been made by nativist groups.
By Gaby Del Valle
April 1, 2026, 7:39 PM EDT
On Wednesday morning, the Supreme Court convened to hear arguments in Trump v. Barbara, a case that contests President Donald Trump’s 2025 executive order prohibiting birthright citizenship. While the justices appeared skeptical of the administration's rationale, the mere fact that the Court is engaging with the topic of birthright citizenship signifies the substantial progress made by nativist movements since Trump's initial term. The text of the 14th Amendment explicitly 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.” Trump aims to invalidate this provision, thereby creating a new, effectively stateless underclass in America, and has alarmingly advanced in this endeavor.
Shortly after taking the oath of office for his second term, Trump released an executive order titled “Protecting the Meaning and Value of American Citizenship.” According to this order, children born to undocumented mothers or women in the U.S. on non-immigrant visas would no longer automatically gain citizenship at birth, unless their fathers are U.S. citizens or permanent residents. The order was set to take effect 30 days post-issuance but faced immediate legal challenges, resulting in several federal injunctions that currently maintain the status quo of birthright citizenship.
The Trump administration's arguments pivot on a particular phrase: “subject to the jurisdiction thereof.” The administration posits that noncitizens and individuals without permanent residency are not under U.S. jurisdiction, claiming allegiance to foreign nations. This interpretation would not only dismantle longstanding U.S. legal principles but would also contradict precedents established by English common law, affecting hundreds of thousands of children who would lack legal status upon birth. Karen Tumlin, director of the Justice Action Center, described the case as a “canary in the coalmine for our democracy,” warning that if Trump can terminate birthright citizenship through executive action, no constitutional safeguards would be secure.
Most justices, except those with staunch conservative leanings, appeared unconvinced by the administration's arguments. Many of their inquiries referenced two historic rulings: Dred Scott v. Sandford (1857), which declared that enslaved individuals were not citizens—a decision that the 14th Amendment was partly designed to rectify—and United States v. Wong Kim Ark (1898), where the court determined that children born in the U.S. to Chinese nationals were, in fact, U.S. citizens, despite restrictions imposed by the Chinese Exclusion Act.
When Justice Clarence Thomas questioned the administration's representative, Sauer, about the citizenship clause in relation to Dred Scott, Sauer conceded that the decision represented “one of the worst injustices in the history of this court.” Nevertheless, Sauer contended that the 14th Amendment was intentionally ratified to grant citizenship to “newly freed slaves and their children,” who, as he argued, had a clear “relationship of domicile” to the United States and no ties to any foreign power.
Sauer further asserted that 19th-century lawmakers could not have anticipated the issue of birth tourism. “There are 500 — 500 — birth tourism companies in the People’s Republic of China whose business is to bring people here to give birth and return to that nation,” he noted. He claimed that the current understanding of birthright citizenship “could not possibly have been approved by the 19th century framers of this amendment,” stating, “We’re in a new world," where "8 billion people are one plane ride away from having a child who’s a US citizen.”
Justice Neil Gorsuch, engaged in questioning Sauer, expressed no shift in perspective; while he acknowledged the changes in the global landscape, he affirmed that “it’s the same Constitution.” Chief Justice John Roberts remarked on Sauer’s comparisons of existing exceptions—such as those for children of ambassadors or during military invasions—as “very quirky” and not directly applicable to the broader category of undocumented immigrants. Justice Elena Kagan pointed out that Sauer's arguments largely revolved around individuals temporarily present in the U.S. on visas, but the intent behind Trump’s executive order evidently aimed to restrict immigration, as articulated by the president himself.
In 2019, Trump termed birthright citizenship a “magnet for illegal immigration.” Last year, presidential adviser Stephen Miller indicated that U.S.-born children of immigrants are seen as problematic as the immigrants themselves.
The ongoing case and its ramifications underscore substantial shifts in the dialogue surrounding citizenship and immigration law in the United States under the current administration.
Share this story