Trump’s birthright citizenship ban may fail, but the administration has already gone too far

On Wednesday morning, the Supreme Court heard arguments Trump vs. Barbaraa case challenging President Donald Trump’s 2025 executive order banning birthright citizenship. The justices seemed skeptical of the administration’s argument, but by gaining birthright citizenship, they showed how much ground the nationalists had gained since Trump’s first term. The Fourteenth Amendment is quite clear: “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 seeks to undo this and create a new stateless American underclass, and he has reached a disturbing extent.

Hours after being sworn in for his second term, Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship.” Under the order, children born to undocumented mothers — or to women in the country on nonimmigrant visas — would not become citizens at birth, unless the children’s fathers were citizens or permanent residents. The provisions of the order will enter into force 30 days after its issuance. It was immediately challenged in court, and several federal injunctions blocked its implementation, meaning that birthright citizenship remains the law of the land for the time being.

Trump’s efforts hinge on the meaning of a specific clause: “subject to its jurisdiction.” The administration asserts that non-citizens and those without permanent residency are not subject to US jurisdiction, because they are in fact loyal to a foreign power. This interpretation would reflect not only centuries of American law, but also precedent established by English common law Hundreds of thousands of children Without setting or Stateless At birth. Karen Tomlin, director of the Center for Judicial Action, called the case “the canary in the coal mine of our democracy”: If Trump can end birthright citizenship with the stroke of a pen, no constitutional protection will be secure.

All but the most conservative judges seemed unconvinced. Their questions focused largely on two landmark decisions. He was one Dred Scott vs. Sandfordan 1857 case in which the court decided that slaves were not citizens—and which the Fourteenth Amendment was ratified in part to repeal. And the other was United States v. Wong Kim Arkan 1898 case in which the court ruled that despite the Chinese Exclusion Act, children born in the United States to Chinese citizens were indeed American citizens.

After Judge Clarence Thomas Sawyer asked how the citizenship clause would respond Dred ScottSawyer acknowledged that the 1857 decision “imposed one of the worst injustices in the history of this court.” But he said Congress ratified the 14th Amendment specifically to grant citizenship to “newly freed slaves and their children” who, according to Sauer, had a “domicile connection” with the United States and no “native connection to any foreign power.”

Lawmakers in the 19th century could not have anticipated the problem of birth tourism, Sawyer said. “There are 500 to 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,” Sawyer said. He said the current interpretation of birthright citizenship “could not have been approved by the drafters of this amendment in the 19th century.” He continued: “We are in a new world, where 8 billion people are one plane ride away from having an American citizen’s child.”

Justice Neil Gorsuch, who was questioning Sawyer, appeared unimpressed. He agreed, saying: “It’s a new world, but it’s the same constitution.”

Chief Justice John Roberts called Sawyer’s examples of existing exceptions — including the children of ambassadors or enemies during a hostile invasion — “highly convoluted” and not necessarily comparable to “an entire class of illegal aliens here in the country.” Justice Elena Kagan noted that most of Sawyer’s brief focused on people temporarily in the country on visas — but Trump’s executive order was clearly intended to restrict immigration, and the president has said so himself.

In 2019, Trump It’s called born citizenship “A magnet for illegal immigration.” Last year, presidential adviser Stephen Miller said that children of immigrants born in the United States were as much a problem as the immigrants themselves. “With a lot of these immigrant groups, it wasn’t just the first generation that wasn’t successful,” Miller said in an interview with Fox News, citing the Somali American community, which the administration manages. He will soon return to Minneapolisfor example. “You see persistent problems in every subsequent generation. So you see consistent high rates of welfare use, consistent high rates of criminal activity, and persistent failure to uptake.”

The administration has sought to restrict legal immigration in all its forms: it Exorbitant fees were imposed For H-1B work visas, this has been indicated May complete a work program for international studentsA travel ban was imposed on several countries It even affects World Cup players. The process is blatantly racist. President famously complained Of “all these people from dirty countries” who are immigrating, he expressed his desire to have “more people from Norway.” Last year, it is – Reducing the ceiling for refugee resettlement to only 7,500, and gave priority to the resettlement of whites to South Africa. The Department of Homeland Security I linked “home” To a clear white vision of Manifest Destiny, which takes us back to the nineteenth century, as do debates over birthright citizenship.

The experts are On a large scale in deal Most judges were not convinced by the administration’s argument, but it is not clear exactly how the court will rule.

If the court gives Trump an unexpected victory, a series of grim questions will immediately arise – starting with when change will begin. The order was supposed to take effect on February 19, 2025, thirty days after Trump signed the order, and would have gone into effect but for a number of federal orders. “If the court sides with Trump, it will have to decide when to start enforcing the president’s interpretation of the 14th Amendment,” said Cesar Cuauhtémoc García Hernández, a professor of civil rights and civil liberties at Ohio State University College of Law. Edge. “Anyone born on or after that date described in Trump’s order will be treated as an immigrant and not as a U.S. citizen.”

Sawyer asked the court to implement Trump’s executive order “proactively” rather than retroactively, and postponing the change to 2025 would pose a number of problems, putting the citizenship of millions of children into question.

The Trump administration is trying to narrow who is considered an American, while at the same time pushing for policies that bar noncitizens from participating in public life. The administration has tried that Preventing countries from offering tuition fees within the country For illegal immigrants living there, Accreditation has been cancelled For training centers that work with non-citizen truck drivers, and for Widely sought after To turn America into a “Papers Please” nation.

Trump He was in the audience During Wednesday’s arguments, making him the first president to attend oral arguments before the Supreme Court. His presence may have been intended to intimidate skeptical judges into siding with him. Norman Wong, a direct descendant of Wong Kim Ark, was also outside the courtroom, according to the newspaper New York Times. Wong and his family embody the dangers of this case, and he had a message for the judges: “They will be shamed in the eyes of history if they get this wrong.”