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birthright citizenship
A Nation's Sacred Promise Is Now Before the US Supreme Court
We shouldn’t be debating this right now. But since the president chose to act with such striking disregard for the law, here we are.
Apr 01, 2026
The US Supreme Court today will hear a major constitutional case about birthright citizenship. We shouldn’t be debating this right now. But since the president chose to act with such striking disregard for the law, here we are.
Birthright citizenship is in the Constitution. The first sentence of the 14th Amendment 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.”
This has been the law for more than 150 years. The amendment overturned the notorious Dred Scott decision, which said that even free Black Americans could not be U.S. citizens. The Supreme Court in 1898 confirmed the 14th Amendment’s plain meaning. In United States v. Wong Kim Ark, it ruled that children born here are citizens, even if their parents are not. That principle gave rise to generations of new Americans.
Donald Trump tried to Sharpie this out of the Constitution. A few hours after he took office, he signed an executive order purporting to deny citizenship to the children born here to non-U.S. citizens. Courts immediately ruled against the White House. Last summer, the Supreme Court stopped individual judges from issuing such nationwide orders, but it left open the possibility of class action lawsuits. Hence Trump v. Barbara, brought by the American Civil Liberties Union.
This is open and shut. Con law for dummies.
Grasping for arguments, Trump’s lawyers landed on this: The 14th Amendment’s “one pervading purpose” was to protect the children of former slaves, not anyone else. That reading puts aside the clear language of the amendment, along with a century and a half of history and tradition. It’s historical fan fiction, designed to appeal to an “originalist” Court.
Historians Martha Jones and Kate Masur, a member of the Brennan Center’s Historians Council, corrected the record in a key amicus brief. “When the Framers wrote birthright citizenship into the Constitution, they were not addressing only the status of former slaves,” they explained. “They were also remedying the eight decades of injustice imposed upon free people born in the United States, among them free Black Americans, including those who had never been enslaved.” What’s more, the historians note, “The Framers well understood that the Amendment’s broad terms would recognize and protect the citizenship status of the children of immigrants.”
One echo throughout history: We’ve seen the arguments against birthright citizenship before, and they were born of nativism and made by racists. In our Countering Originalism handbook, we call this a “negative precedent.” “Negative,” as in “really ugly.”
Our constitutional rights in 2026 should not just have to rely on the goings-on during the 1860s, when the amendment was drafted. For 150 years, hundreds of thousands of children born in the United States to noncitizen parents have proudly grown up as American citizens.
It’s an open-and-shut case, as I said. So why is this case happening at all?
Because Trump is forcing the issue. And the case offers a depressing window into how the Supreme Court helps drive, ratify, and legitimize extremist arguments. It has fired up an originalist-industrial complex to concoct historical evidence to buttress unjustifiable outcomes.
Trump didn’t dare do this during his first term. But after his “shock and awe” barrage of executive orders at the start of his second term, conservative scholars suddenly had to find it plausible, intriguing, worth a second look. Two top professors, Randy Barnett and Ilan Wurman, suddenly discovered a “puzzle” to solve. “Trump might have a case on birthright citizenship,” they found a way to write.
“A lot of people, when Trump first started talking about it, thought this is crazy,” conservative scholar John Yoo told The New York Times. Yoo thought Barnett and Wurman’s argument too, ahem, tortured, and instead made “the originalist case for birthright citizenship.” The vast majority of scholars agree.
I think the Court is highly likely to reaffirm birthright citizenship. But who knows? I thought it likely the Court would allow criminal prosecutions of former presidents, which is similarly anticipated in the Constitution. Here, the case is even clearer, since the law has affected the lives of so many people before now.
The willingness to chuck aside precedent as well as logic is a hallmark of the Roberts Court. This term, we brace for a demolition of the Voting Rights Act, a further grant of vast power to presidents (this time allowing them to command expert federal agencies that were made independent by Congress), and another ruling to undermine campaign finance rules. The Court stood up to block the unilateral imposition of tariffs and has shown some backbone on other emergency powers cases. But overall, bit by bit, it continues its project to remake the country.
As for birthright citizenship, it is one of the crown jewels of the U.S. Constitution. For a century and a half, the nation’s promise was that anyone born here, however humble their circumstances, is an American. Let’s hope the Court upholds that cherished principle. And let’s shake our heads at the fact that it has to.
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Birthright Citizenship Is a Promise We Cannot Break
Defending birthright citizenship is not only about protecting children of immigrants. It is about preserving a constitutional framework that recognizes our shared humanity and limits the government’s ability to decide whose rights matter.
Mar 31, 2026
For more than 150 years, the 14th Amendment has been an uncompromising line: If you are born on US soil, you are a citizen. That principle is so foundational, many of us take it for granted.
But that principle is under attack.
On April 1, the Supreme Court will hear oral arguments challenging President Donald Trump’s effort to end birthright citizenship. At the center of the case is an executive order issued on the first day of Trump’s second term to end Birthright Citizenship for children of undocumented parents.
The justices will now decide whether a president can rewrite one of the clearest promises embedded in American law.
If the court strikes down birthright citizenship, it would let the government decide who counts as American based on the circumstances of their birth.
On the surface, threatening the rights of children born in the United States might seem like an immigration debate. But history tells a different story.
Birthright citizenship was never an abstract ideal. It was a response to America’s long history of dehumanization—a past that Trump and his MAGA allies are now openly trying to resurrect. The 14th Amendment was designed to dismantle a system that denied Black people a political voice, treated us as property, and denied our humanity.
Ratified in 1868, the amendment overturned Dred Scott v. Sandford, which declared that Black people “had no rights which the white man was bound to respect.” Birthright citizenship was meant to be simple and permanent so no government could take it away based on race, ancestry, or political whim.
For formerly enslaved people and their descendants, it guaranteed recognition as full citizens in their own country. But the 14th Amendment did more than correct the injustices of slavery: It expanded who counts as American.
The Constitution says plainly that anyone born in the United States and subject to its laws is a citizen. That principle was reaffirmed by the Supreme Court in United States v. Wong Kim Ark, which ruled that a man born in San Francisco to Chinese immigrant parents was a citizen, establishing that US-born children of immigrants are citizens. This was despite the fact that Chinese immigrants at the time were barred from naturalization under the Chinese Exclusion laws.
The case now before the court seeks to undo that understanding.
If the court strikes down birthright citizenship, it would let the government decide who counts as American based on the circumstances of their birth.
The 14th Amendment’s authors understood the danger of that approach. Once citizenship becomes conditional, every other right soon follows.
Ending birthright citizenship would affect everyone—not just children of immigrants—in a system that has long questioned the belonging of people of color, including Black Americans.
Who must prove their citizenship? Who is presumed to have it? Who gets stopped, questioned, or detained? Who lives under suspicion?
History answers clearly: Marginalized communities pay the price first.
I write this as someone who has spent more than 15 years organizing for racial justice and as a Black man whose citizenship was once explicitly denied by law. Today, I see how systemic racism—from policing to voter suppression—continues to shape the livelihoods of Black Americans.
And that danger does not stop with birthright citizenship: These attacks threaten the entire 14th Amendment, including the Equal Protection and Due Process Clauses that underpin victories against segregation, discrimination, voter suppression, and unchecked government power.
If the government can redefine citizenship, unequal treatment under the law becomes easier to justify. Civil rights become conditional. Equal protection becomes negotiable. State power expands while accountability shrinks.
We have seen this playbook before. After Reconstruction came Jim Crow. During industrialization came the Chinese Exclusion Act. Black workers were excluded from key New Deal protections. The gains of the civil rights movement were followed by voter suppression and mass incarceration.
Each time progress threatened entrenched power, the response was restriction rather than inclusion.
The 14th Amendment was written to break that cycle.
Defending birthright citizenship is not only about protecting children of immigrants. It is about preserving a constitutional framework that recognizes our shared humanity and limits the government’s ability to decide whose rights matter.
So the stakes could not be clearer during these Supreme Court arguments.
Birthright citizenship is more than law. It is the promise that America’s diversity, struggle, and resilience matter. It is the legacy of those who fought to be recognized as fully human—and the foundation of a democracy that must belong to all of us.
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The Supreme Court's Pro-Trump Immigration Rulings Threaten Decades of Progress
The sitting members should consider what kind of legacy they wish to leave for future generations before siding blindly with our most autocratic president in history.
Feb 18, 2026
The justices on the Supreme Court should not favor the president who appointed them because checks and balances demand that they uphold the law without passion or prejudice. The current Supreme Court has increasingly shown a pattern of siding with the Trump administration—a result made predictable by the court’s conservative majority. Immigration cases have, with rare exception, aligned along these partisan lines.
On June 27, 2025, the Supreme Court sidestepped the question of birthright citizenship and overruled lower court decisions that sought to protect it. The original plaintiffs filed suit to enjoin the enforcement of the executive order that identifies circumstances in which a person born in the United States is not “subject to the jurisdiction thereof,” thereby restricting the constitutionally guaranteed bestowal of birthright citizenship. The Trump administration petitioned the Supreme Court, which granted review. The plaintiffs argued that the executive order violates the 14th Amendment’s Citizenship Clause, as well as sections 1 and 201 of the Nationality Act of 1940—the constitutional guarantee that birth on US soil confers citizenship.
Before the case reached the Supreme Court, the district court entered universal injunctions barring the application of the executive order to anyone, thereby preserving birthright citizenship, and the appellate court denied the government’s request to postpone the granted relief. In its application to the Supreme Court, the government argued that federal courts lacked equitable authority to issue universal injunctions under the Judiciary Act of 1789, attacking the district court’s authority in order to preserve the president’s propensity to overstep his. The Supreme Court granted the government's application and held that Congress has not granted federal courts authority to universally enjoin the enforcement of an executive order. Reaching all the way back to pre-Revolution English law and the Founding Fathers, the Supreme Court reasoned that no such authority exists. Their reasoning reads as petulant and arbitrary, an invocation of ancient doctrine to narrow modern rights.
On September 8, 2025, the Supreme Court granted an application for stay by the Department of Homeland Security (DHS). The decision states that the Immigration and Nationality Act authorizes immigration officers to interrogate any alien (or person believed to be an alien) as to “his right to be or to remain in the United States.” They also found that they may briefly detain individuals if they have a “reasonable suspicion” that he or she is an alien illegally present in the United States, based on the “totality of the particular circumstances.”
The Supreme Court’s deep bias in favor of Trump administration policies gestures toward a reversal, through immigration cases, of the trenchant progress in civil rights litigation that the Warren Court and subsequent courts have made.
The Supreme Court’s interpretation of the law, however, takes tremendous liberties with the letter of these laws, essentially recognizing ethnicity as a basis for reasonable suspicion. Specifically, the California District Court enjoined immigration officers from making investigative stops based on, among other factors, speaking Spanish or English with an accent, and race or ethnicity. In a nutshell, the lower court forbade immigration enforcement from racially profiling Latine Angelenos. The Supreme Court overruled the lower court, reasoning that, while ethnicity alone cannot furnish reasonable suspicion, it can be a relevant factor when considered along with other salient factors. This argument is internally incoherent and contradictory, suggesting that racial bias is at once insufficient and persuasive evidence. Citing the myriad “significant economic and social problems” caused by “illegal” immigration, the Supreme Court sided with DHS, finding that the government would suffer irreparable injury from the injunction. The relevance of socioeconomic problems to the question of racial profiling and potential excessive force in the execution thereof is tenuous at best.
Justice Sonia Sotomayor wrote the dissenting opinion, in which Justices Elena Kagan and Ketanji Brown Jackson joined. She argued that “we should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,“ as it would be a loss to our constitutional freedom.
On December 23, 2025, however, the Supreme Court issued an noticeably restrained opinion upholding a lower court’s temporary restraining order (TRO), which barred the deployment of the National Guard in Illinois. The court found that, under the Posse Comitatus Act, the military is prohibited from executing the laws, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress. The decision further stated that, before the president can federalize the guard under 10 USC §12406(3), he must have statutory or constitutional authority to execute the laws with the regular military and must be unable with those forces to perform that function.
The Supreme Court’s deep bias in favor of Trump administration policies gestures toward a reversal, through immigration cases, of the trenchant progress in civil rights litigation that the Warren Court and subsequent courts have made. The sitting members should consider what kind of legacy they wish to leave for future generations before siding blindly with our most autocratic president in history. Political expediency may be convenient in the short term, but history will judge harshly those who twisted our most sacred liberties to the advantage of an advantageous few, rather than standing with the people our Constitution was written to protect.
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