The US Supreme Court ruled Tuesday that children born in the United States to parents who are unlawfully or temporarily present are citizens under the 14th Amendment, holding unconstitutional an executive order President Donald Trump signed on his first day in office in January 2025 that sought to deny them that status.
In Trump v. Barbara, Chief Justice John Roberts wrote for a five-justice majority holding the executive order unconstitutional. In a concurring opinion, Justice Brett Kavanaugh agreed the order is unlawful but on narrower grounds, writing that it contravenes a federal statute but that the Court should not have ruled on constitutional grounds. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented. The ruling upholds a decision from the US District Court for the District of New Hampshire, which last July certified a nationwide class of children who stood to lose citizenship under the order, and blocked the order from taking effect.
The order, titled “Protecting the Meaning and Value of American Citizenship,” directed federal agencies to stop recognizing citizenship for children born in the US to mothers who were unlawfully present or whose presence was lawful but temporary, unless the father was a citizen or a lawful permanent resident. The order asserted that the 14th Amendment “has never been interpreted to extend to citizenship universally to everyone born within the United States.”
Justice Roberts grounded his opinion in history, tracing the Amendment’s Citizenship Clause back through English common law. The opinion also noted widespread repudiation of the “odious” 1857 Supreme Court decision in Dred Scott v. Sandford, which had excluded the enslaved and their descendants from citizenship, after the Civil War. Roberts wrote that the Citizenship Clause was intended to constitutionalize the common-law rule, quoting Senator Lyman Trumbull’s 1866 statement that the Amendment extended its promise to “every free-born person in this land.” The opinion also relied on the Court’s 1898 ruling in United States v. Wong Kim Ark, which upheld birthright citizenship for a child born in the US to Chinese immigrant parents who were themselves ineligible for naturalization.
Justice Ketanji Brown Jackson filed a separate concurrence, joined by Sonia Sotomayor, arguing that the 14th Amendment was meant to do more than remedy slavery. It was, in her view, a broader strike against caste and subordination of any kind.
Justice Kavanaugh, concurring in the judgment but dissenting in part, argued that the executive order violates federal statute but that the 14th Amendment itself would permit Congress to legislate new exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.
Justice Thomas, joined by Justice Gorsuch, dissented, arguing that the phrase “subject to the jurisdiction thereof” historically required that a child’s parents be “domiciled” in the United States—meaning they had established it as their permanent home—and that children of temporary visitors were never understood to be citizens under the Clause.
Justice Alito filed a separate dissent arguing that the Citizenship Clause requires exclusive allegiance to the United States, a standard he said is not met when a child of foreign parents is automatically made a national of the country at birth. He warned that the ruling preserves incentives for “birth tourism” and produces results inconsistent with the Amendment’s original meaning.
Justice Gorsuch also filed a brief separate dissent, emphasizing that while the executive order has lawful applications—particularly as to temporary visitors—he harbored “doubts” about whether it could constitutionally deny citizenship to children born to parents who have long made the United States their permanent home, even if unlawfully.
Though the executive order was issued on Trump’s first day in office in January 2025, it had not yet entered into force, due to consistent the refusal of lower courts to uphold its constitutionality.
