US Supreme Court to hear constitutional test of birthright citizenship 

Washington, DC – If you are born on US soil, are you automatically a citizen of the country?

This is the question that will be put before the US Supreme Court on Wednesday, a response to US President Donald Trump’s extraordinary effort to change longstanding interpretations of the country’s constitution amid his wider hardline immigration drive.

Advocates challenging Trump’s efforts to do away with so-called birthright citizenship – in which any infants born in the US, regardless of their parents’ immigration status, concurrently become US citizens – hope to present what they see as an open-and-shut case to a nine-justice panel of the country’s top court.

“This is one of the biggest issues for American society,” said Aarti Kohli, who will be present at Wednesday’s hearing as executive director of the Asian Law Caucus, one of several groups that brought the challenge.

“It’s not just about what the executive order does, but it’s about the power that the president has to rewrite the Constitution.”

Advocates have not shied from the difficult context of the highly consequential case, which they say risks transforming the cultural fabric of the US, inflating the number of people living in the US not afforded equal rights, and creating a “permanent underclass” for some immigrant groups.

It will be brought before a US Supreme Court dominated by a 6-to-3 conservative supermajority. The panel has recently handed Trump a handful of major defeats, but it has largely leaned in the president’s favour on immigration.

“Every judge in the lower courts, regardless of which party appointed that judge, has ruled in our favour,” Kohli said.

Trump’s executive order and the 14th Amendment

Wednesday’s case before the Supreme Court represents the culmination of a months-long challenge to an executive order signed by Trump just hours after taking office on January 20, 2025.

The order sought to effectively end birthright citizenship, long interpreted as established under the 14th Amendment of the US Constitution, ratified in 1868, three years after slavery was officially outlawed in the US.

The amendment overturned the 1857 Dred Scott v Sandford Supreme Court ruling, which maintained that Black slaves born in the US were not US citizens.

Instead, the 14th Amendment stated: “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”.

Trump’s executive order argued the 14th Amendment “has never been interpreted to extend citizenship universally to everyone born within the United States”. It singled out the phrase “subject to the jurisdiction thereof” to argue the constitutional amendment does not apply to those in the United States without documentation or on temporary visas.

If further ordered, “no department or agency” is to issue or accept citizenship documents for individuals born to parents of those categories.

The executive order said it would take effect for those born after 30 days of its signing, but its enforcement has been widely blocked amid ongoing legal challenges.

What will challengers argue?

At least 10 legal challenges have been launched against Trump’s order, but Trump v Barbara is the first to be heard before the Supreme Court.

The case is named after one of the plaintiffs, “Barbara”, a Honduran citizen who was expecting her fourth child while living in New Hampshire in October 2025, awaiting the processing of her asylum application. Her co-plaintiffs include a woman from Taiwan – in the US on a student visa – who gave birth to a child in Utah in April 2025 and a Brazilian national, whose wife gave birth in March 2025.

Because the case is a class action, it is brought on behalf of all people in the same “class” as the plaintiffs: children who would be denied citizenship under Trump’s order.

Kohli, whose organisation brought the case alongside the ACLU, the Legal Defence Fund, and the Democracy Defenders Fund, said the arguments put forward on Wednesday will be relatively straightforward: Trump’s order directly runs counter to the “clear language” of the 14th Amendment.

A subsequent US Supreme Court ruling, 1898’s United States v Wong Kim Ark, further affirmed that a child born to non-citizen parents was a US citizen, the lawyers will argue.

The concept was then codified in the 1952 Immigration and Nationality Act, which said: “a person born in the United States, and subject to the jurisdiction thereof … shall be nationals and citizens of the United States at birth”.

The practice had previously been English common law.

“If you look at the legislative history, it’s very clear that Congress understood it to mean that it’s any child who is born in the United States.  Nowhere in the Constitution or in the [1952] statute does it say anything about the domicile of the parents,” Kohli said.

“It’s very clear settled law,” she said.

The phrase “subject to the jurisdiction thereof” has long been applied only to a very limited group of individuals, including the children of foreign diplomats, those born to invading armies while on US soil and those born on sovereign Native American territory, she added.

Trump admin claims ‘misreading’

Beyond Trump’s executive order, Department of Justice lawyers have argued that over a century of US practice has been predicated on a fundamental “misreading” of the US Constitution.

In court filings, they argued the 14th Amendment was drafted for “newly freed slaves and their children, not on the children of aliens who are temporarily present in the United States or of illegal aliens”.

They further argued that the Supreme Court ruling in the Ark case related only to non-citizens “enjoying a permanent domicile and residence” in the US, which, they said, precludes some categories of people living in the country.

The lawyers, led by solicitor general John Sauer, argued that the 1952 law’s language – which “transplants” directly from the 14th amendment – should also be reinterpreted.

While once considered a fringe legal perspective, the position broadly follows an argument laid out in the Heritage Foundation’s Project 2025 policy framework, which has informed much of the Trump administration’s actions during his second term.

Trump adviser Stephen Miller, largely seen as the architect of Trump’s hardline immigration policy, has been a standard-bearer of the plan.

On Monday, Trump again cheered the effort as he appeared to pressure the Supreme Court justices – three of whom he appointed – to rule in his favour.

He said the US “laughing at how STUPID our US Court System has become”.

Underscoring the significance for the president, Trump’s schedule on Wednesday showed him stopping at the Supreme Court. Sitting in on the top court oral argument would make him the first sitting president to do so.

Generational stakes

Advocates say the stakes of the case before the Supreme Court should not be understated.

A joint analysis by the Migration Policy Institute (MPI) and Penn State’s Population Research Institute has found that Trump’s executive order would affect about 255,000 infants born in the US every year.

That would swell the numbers of undocumented individuals in the US, potentially with no ties to other countries, for generations, the analysis found; It “would create a self-perpetuating, multigenerational underclass — with US-born residents inheriting the social disadvantage borne by their parents and even, over time, their grandparents and great-grandparents”.

The order will be “creating a permanent underclass if these children are not US citizens”, Kohli said, “and the bureaucratic chaos will be unimaginable.”

She saw the effort as part of a larger ambition of the Trump administration: stemming demographic changes in the US, where the white population remains the majority while steadily declining in proportion year over year.

The move, she added, was in line with Trump’s wider deportation drive, his efforts to stem asylum claims, curtail legal immigration pathways, and severely constrict the US refugee programme.

“Just like their enforcement agenda is going after a wide array of immigrants, not just undocumented immigrants, they’re going after people with lawful status and trying to create conditions so horrific that those people will self-deport,” Kohli said.

“The goal really is to stop immigrants, particularly immigrants of colour, from accessing citizenship,” she said.