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14th amendment
Supreme Court Agrees to Hear Case That Could Bless Trump's Bid to End Birthright Citizenship
"That the Supreme Court is actually entertaining Trump’s unconstitutional attack on birthright citizenship is the clearest example yet that the Roberts Court is broken beyond repair," said one critic.
Dec 05, 2025
The United States Supreme Court on Friday agreed to decide whether US President Donald Trump's executive order ending birthright citizenship—as guaranteed under the 14th Amendment for more than 150 years—is constitutional.
Next spring, the justices will hear oral arguments in Trump's appeal of a lower court ruling that struck down parts of an executive order—titled Protecting the Meaning and Value of American Citizenship—signed on the first day of the president's second term. Under the directive, which has not taken effect due to legal challenges, people born in the United States would not be automatically entitled to US citizenship if their parents are in the country temporarily or without legal authorization.
Enacted in 1868, the 14th Amendment affirms that "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."
While the Trump administration argues that the 14th Amendment was adopted to grant US citizenship to freed slaves, not travelers or undocumented immigrants, two key Supreme Court cases have affirmed birthright citizenship under the Constitution—United States v. Wong Kim Ark (1898) and Afroyim v. Rusk (1967).
Here is the question presented. It's a relatively clean vehicle for the Supreme Court to finally decide whether it is lawful for the president to deny birthright citizenship to the children of immigrants. www.supremecourt.gov/DocketPDF/25...
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— Mark Joseph Stern (@mjsdc.bsky.social) December 5, 2025 at 10:55 AM
Several district court judges have issued universal preliminary injunctions to block Trump's order. However, the Supreme Court's right-wing supermajority found in June that “universal injunctions likely exceed the equitable authority that Congress has given to federal courts."
In July, a three-judge panel of the US Court of Appeals for the 9th Circuit unanimously ruled that executive order is an unconstitutional violation of the plain language of the 14th Amendment. In total, four federal courts and two appellate courts have blocked Trump's order.
“No president can change the 14th Amendment’s fundamental promise of citizenship,” Cecillia Wang, national legal director at the ACLU—which is leading the nationwide class action challenge to Trump's order—said in a statement Friday. “We look forward to putting this issue to rest once and for all in the Supreme Court this term.”
Brett Edkins, managing director of policy and political affairs at the advocacy group Stand Up America, was among those who suggested that the high court justices should have refused to hear the case given the long-settled precedent regarding the 14th Amendment.
“This case is a right-wing fantasy, full stop. That the Supreme Court is actually entertaining Trump’s unconstitutional attack on birthright citizenship is the clearest example yet that the Roberts Court is broken beyond repair," Edkins continued, referring to Chief Justice John Roberts.
"Even if the court ultimately rules against Trump, in a laughable display of its supposed independence, the fact that fringe attacks on our most basic rights as citizens are being seriously considered is outrageous and alarming," he added.
Aarti Kohli, executive director of the Asian Law Caucus, said that “it’s deeply troubling that we must waste precious judicial resources relitigating what has been settled constitutional law for over a century," adding that "every federal judge who has considered this executive order has found it unconstitutional."
Tianna Mays, legal director for Democracy Defenders Fund, asserted, “The attack on the fundamental right of birthright citizenship is an attack on the 14th Amendment and our Constitution."
"We are confident the court will affirm this basic right, which has stood for over a century," Mays added. "Millions of families across the country deserve and require that clarity and stability.”
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Trump Pushes Blatantly Unconstitutional Plan for New Mid-Decade Census
"Donald Trump has no power to alter either the timing or who is counted," said one prominent elections attorney.
Aug 07, 2025
U.S. President Donald Trump on Thursday pushed for a new census to be drawn up in a move that would flatly violate the United States Constitution, which states explicitly that the census shall be conducted once every ten years and shall count all people within each state.
In a post on his Truth Social page, Trump said that he had "instructed our Department of Commerce to immediately begin work on a new and highly accurate CENSUS based on modern day facts and figures and, importantly, using the results and information gained from the Presidential Election of 2024."
The president then added that "people who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS."
Many constitutional law experts, however, were quick to point out that Trump lacks any kind of power to demand the creation of a mid-decade census that excludes undocumented immigrants under the United States Constitution.
Anthony Michael Kreis, a professor of constitutional law at Georgia State College of Law, wrote on X that the "Constitution's text is plain" regarding the census and it doesn't allow for anything resembling Trump's plan to exclude undocumented immigrants from the count.
Kreis specifically pointed to the changes to the census made by the 14th Amendment, which demands that the census count "the whole number of persons in each State," as a legal dagger in the heart of Trump's scheme.
"The 14th Amendment's mandate that the census 'count[s] the whole number of persons in each State' governs us in no uncertain terms," he argued.
Elections attorney Marc Elias similarly dismissed Trump's plan as a flagrant violation of the Constitution.
"The Constitution dictates that the census is a count [of] 'all persons' conducted every 'ten years,'" he wrote on Bluesky. "Donald Trump has no power to alter either the timing or who is counted."
The United States Supreme Court in 2019 blocked the first Trump administration from adding a question about residents' citizenship to the 2020 census, and it's not clear how Trump's order for a new census excluding undocumented immigrants would be different from his prior attempt.
In addition to questions of constitutional legality, Trump's plan also has issues when it comes to sheer logistics.
Michael McDonald, a political scientist at the University of Florida, argued that Trump's plan is wildly impractical given the resources and time needed to successfully conduct an accurate census.
"Just from a logistical standpoint it is not feasible to conduct a 'new' mid-decade census with accuracy," he wrote on Bluesky. "To give a sense of the scale of what is required, preparations are already underway for the *2030* census. This will add chaos to the Census Bureau and degrade the accuracy of the 2030 census."
CNN political reporter Aaron Blake also noted on X that it's unclear that excluding undocumented immigrants from the census would even be much of a political boon for the GOP. As evidence, Blake pointed to a 2020 estimate from Pew Research Center projecting that Republican-controlled states such as Florida and Texas would each lose a seat if their undocumented immigrant populations weren't counted, which would balance out projected GOP gains in Alabama and Ohio under such circumstances.
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With Its Birthright Non-Decision, the Supreme Court Chickened Out and Left a Mess Behind
Barrett and the conservative majority produced a complicated and confusing procedural ruling that leaves the executive order in legal limbo.
Jul 10, 2025
Just how bad is the Supreme Court’s June 27 decision on birthright citizenship? Among progressive and liberal commentators, the thinking is surprisingly mixed. Some assert that Trump v. CASA “couldn’t be more disastrous” and will leave the Trump administration with “blood on its hands”; others see “silver linings” in the ruling.
The reason for the diverse reactions is simple: The 6-3 majority decision written by Justice Amy Coney Barrett didn’t address the underlying issue in the case—the constitutionality of President Donald Trump’s executive order ending birthright citizenship under the 14th Amendment for the children of undocumented immigrants. Instead, Barrett and the conservative majority produced a complicated and confusing procedural ruling that leaves the executive order in legal limbo, intact for now but subject to further litigation.
As I have written before, Trump’s birthright order defies the plain text of the very first sentence of the 14th Amendment. Known as the “Citizenship Clause,” the sentence 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.”
Had Barrett and her confederates not ducked the underlying issue of the executive order’s constitutionality, they would have been forced either to rewrite the Citizenship Clause to uphold the order—a step even they apparently are not yet prepared to take—or invalidate a centerpiece of the MAGA mass deportation agenda.
The executive order stunningly disregards these easily understood words, proclaiming that the amendment “has never been interpreted to extend citizenship universally to everyone born within the United States,” but was adopted only to repudiate the Supreme Court’s infamous Dred Scott decision that denied citizenship to Black Americans.
But while repudiating Dred Scott was the immediate impetus for crafting the Citizenship Clause, the Senate and the House debates in 1866 extended far beyond that notorious decision.
The clause was introduced in the Senate by Jacob Howard of Michigan on May 30, 1866, as an add-on to the draft of the 14th Amendment formulated by the House. The clause tracked similar language contained in the Civil Rights Act of 1866 and followed the general principles of English common law and the ancient doctrine of jus solis (the “law of the soil’’)—the principle that all those born within the geographic boundaries of a nation are citizens at birth. (More than 30 countries today recognize the doctrine, including the United States, Canada, and Mexico. Great Britain modified its nationality law in 1981.)
In his introductory remarks, Howard noted the phrase “subject to the jurisdiction” of the United States meant that the citizenship clause would not apply to the children of ambassadors or foreign ministers, the children of occupying foreign soldiers, or to the offspring of Native Americans who claimed allegiance to tribal governments, but that the clause would “include every other class of person,” regardless of race or descent. (Native Americans were accorded citizenship by legislation passed in 1924.)
The citizenship clause, Howard said, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”
Trump’s executive order also contradicts the court’s precedent opinions dating back to the landmark 1898 case of United States v. Wong Kim Ark, which recognized the citizenship of a man born in the U.S. to parents who at the time were subjects of the Chinese Emperor but domiciled in California. That case and other later decisions demonstrate the inclusive nature of the Citizenship Clause.
Had Barrett and her confederates not ducked the underlying issue of the executive order’s constitutionality, they would have been forced either to rewrite the Citizenship Clause to uphold the order—a step even they apparently are not yet prepared to take—or invalidate a centerpiece of the MAGA mass deportation agenda.
In the end, they chose to do neither.
But they still managed to hand Trump the next best thing to a total victory. Barrett’s ruling granted the administration’s request for a “partial stay” (or pause) on three nationwide preliminary injunctions that had been issued by three federal district court judges—which blocked the birthright order from taking effect anywhere in the country—and sent the cases back to the district judges for further consideration to weed through and apply the jurisprudential mess that Barrett left behind.
In a tortured analysis that New York Magazine’s Chas Danner called “an originalist fever dream,” Barrett limited the court’s review to the sole question of whether, under the Judiciary Act of 1789, federal courts have the authority to issue nationwide, or “universal,” injunctions. The act was one of the first laws passed by Congress after the ratification of the Constitution, and in modified form remains on the books in Title 28 of the United States Code. And as Barrett noted, it is the Judiciary Act that has endowed federal courts with jurisdiction over “all suits… in equity,” and that “still today… authorizes the federal courts to issue equitable remedies,” such as injunctions.
As an originalist, Barrett interprets the Constitution and federal statutes rigidly according to their text and their “original public meaning,” discounting evolving legal norms and practices as well as contemporary social values and needs. When it comes to universal injunctions, however, originalists have a problem. No federal statute, including the Judiciary Act, explicitly authorizes judges to issue nationwide injunctions, but no statute prohibits them from doing so.
In the absence of any guidance from the 1789 act, Barrett and the majority revved up their originalist wayback machine to examine how the English High Court of Chancery operated at the time of the founding, asking if that court issued forms of equitable relief analogous to contemporary universal injunctions. “The answer,” she wrote, “is no.” Equitable remedies at the time of the founding, she concluded, could provide “complete relief between the parties” to a lawsuit, but “complete relief is not synonymous with universal relief” that applies throughout an entire country.
But then, in another confusing twist, Barrett offered the aforementioned silver linings, writing that legal challenges to Trump’s birthright order might proceed under the Administrative Procedures Act, or as class actions, or in lawsuits brought by individual states seeking relief on behalf of their own residents, which 22 states to date have joined. Barrett left it to the district courts to determine which of these alternative legal avenues might suffice, and she gave them 30 days to do so before the executive order takes effect.
In a blistering dissent, Justice Sonia Sotomayor charged that Barrett’s opinion “kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies” and that “newborns subject to the Citizenship Order will face the gravest harms imaginable,” jeopardizing their “chance to participate in American society… unless their parents have sufficient resources to file individual suits.”
In another scathing dissent, Justice Ketanji Brown Jackson blasted Barrett’s opinion “as an existential threat to the rule of law.”
Trump, by contrast, hailed the court’s decision, boasting that it will unblock other items on his political agenda that have been stymied by district court injunctions.
In the meantime, attorneys in the CASA case have amended their complaint to proceed as a class action, and New Jersey Attorney General Matthew Platkin has expressed confidence that broad injunctions stopping Trump’s executive order can still be enforced in lawsuits filed by state governments.
Whether the new legal maneuvers succeed remains to be seen. None would be necessary if the Supreme Court had stood up to Trump and done its job in the first place.
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