Where does the Supreme Court stand on birthright citizenship? Recap
The Supreme Court gave a tough – but not dismissive – review of President Donald Trump’s effort to redefine who is an American, debating the issue on Wednesday as the president himself added to the historical significance of the case by attending the arguments.
"The examples you give to support (your position) strike me as very quirky," Chief Justice John Roberts told the Justice Department’s attorney shortly after the debate began.
But the conservative justices, who have a 6-3 majority, also had probing questions for the other side, particularly about how to understand the court’s landmark 1898 ruling upholding the citizenship of a San Francisco-born man whose Chinese parents were barred from becoming citizens under the laws of the time.
“It seems to me it’s a mess,” Justice Neil Gorsuch said.
The executive order Trump signed on his first day back in office to sharply limit automatic citizenship for babies born in the United States is central to his efforts to crack down on both legal and illegal immigration – a major campaign promise. Trump argues that benefit wasn’t intended for the children of undocumented immigrants and temporary residents. But his order challenges the longstanding interpretation of a 19th century constitutional provision guaranteeing birthright citizenship to nearly everyone – and every lower court that has reviewed Trump’s executive order ruled against it.
Trump, who became the first sitting president to attend an oral argument at the Supreme Court, left the court after Solicitor General John Sauer wrapped his oral arguments. Shortly after the arguments were over, the president posted on social media calling unrestricted birthright citizenship 'STUPID.'
Trump was a quiet presence at Supreme Court
Karissa Waddick
Aside from a few stifled gasps when he walked into the courtroom, Justices, lawyers and attendees scarcely acknowledged Trump’s presence at the Supreme Court Wednesday.
Wearing his standard black suit and red tie, Trump appeared to listen attentively during oral arguments, occasionally shifting his weight and scratching his head.
He left around 11:20 a.m. after Justices finished questioning the government's attorneys.
ACLU confident Supreme Court will reject Trump administration’s arguments
N'dea Yancey-Bragg
Fresh from oral arguments, Cecillia Wang, national legal director of the American Civil Liberties Union who is representing the challengers of Trump's executive order, said she’s confident the high court will reject the Trump administration’s arguments as she stood on the steps of the Supreme Court.
“I come out of the court today with the thought of my parents and so many of our parents and ancestors who came to this country seeking refuge, seeking new opportunities, and who relied on the rule that we've had in this country for 150 years that everyone born here is a United States citizen all the way,” Wang said.
Anthony Romero, executive director of the ACLU, said he was “especially gratified” that President Donald Trump was in the audience and hopes he was “schooled” on the importance of birthright citizenship.
Demonstrators show up to support the 14th Amendment
Swapna Venugopal Ramaswamy
Ann Reinhardt, 71, of Odenton, Maryland, said she decided to come to the Supreme Court to support the upholding of the 14th Amendment.
“The legal terms argued by the Trump administration today are based on racist allegations,” she said. “It could have a trickle-down effect and chip away at our rights.”
Bethany Karn, 62, of Takoma Park, Maryland, attended the protest outside the Supreme Court in support of her students.
As a teacher of English as a second language, she said her students and their children's constitutional rights are in jeopardy.
“It’s literally written in the constitution. It can’t get any more plain than that,” she said. “It is so obvious. But apparently, we need to be here to remind them.”
Demonstrator supports Trump’s birthright citizenship order
N'dea Yancey-Bragg
Danielle Carter-Walters said she came all the way from Chicago to show support for the end of birthright citizenship. Carter-Walters spent much of the morning shouting as speakers addressed the crowd gathered for the ACLU demonstration.
Carter-Walters, of Chicago Flips Red, said she hopes the Supreme Court will allow Trump’s executive order to go into effect and the president’s promised mass deportations will follow.
“We are standing with President Trump because we don't believe that immigrants and illegal aliens should be allowed to benefit from the 14th Amendment, which was intended for the descendants of the enslaved babies,” she said.
Trump calls unrestricted birthright citizenship 'STUPID'
Bart Jansen
Trump called the United States the only country “STUPID” enough to grant birthright citizenship to nearly everyone born in the country, after making the unprecedented step of attending the argument at the Supreme Court.
“We are the only Country in the World STUPID enough to allow “Birthright” Citizenship!” Trump said on social media after the argument ended.
According to the Pew Research Center, there are 32 other countries that offer birthright citizenship with essentially the same terms as the United States, including Canada, Mexico and Brazil.
Debate ends after more than two hours
Maureen Groppe
The arguments are in the history books as Chief Justice John Roberts declares, after slightly more than two hours of oral arguments, that the case has been submitted.
In his final remarks, Solicitor General John Sauer returned to the Trump administration’s main point that the purpose of the citizenship clause was about granting citizenship to newly-freed slaves and their children.
“This was all about overruling the grave injustice of Dred Scott,” Sauer said about the court’s infamous 1857 decision that African Americans could not be citizens.
A decision is expected by late June or early July.
Barrett asks about Native Americans
Bart Jansen
Justice Amy Coney Barrett asked whether Native Americans are citizens because of the 14th Amendment or a 1924 act that granted them birthright citizenship.
Native Americans were excluded from the amendment because of their allegiance to their tribes. This was similar to how ambassadors were excluded because of their affiliation with their home countries.
Cecillia Wang, national legal director of the American Civil Liberties Union, said the 14th Amendment was drafted to prevent more exclusions from U.S. citizenship. But she said exceptions such as the one for Native Americans can’t change either, to adopt a more modern understanding of the country’s relationship with the tribes, she said.
“The very purpose was to foreclose new exceptions,” Wang said.
ACLU 'happy to take a win on any ground'
Maureen Groppe
Justice Brett Kavanaugh, one of the conservative justices whose vote is often key, asked whether the court should even consider the citizenship clause of the 14th Amendment if the justices agree with the challengers that Trump’s executive order violates a more recent federal law.
The court’s usual practice, he said, is to resolve issues on a statutory – not constitutional – basis when possible.
Cecillia Wang, the ACLU attorney representing the challengers, said it’s important for the court to back its landmark 1898 ruling about birthright citizenship.
“I just think it would be prudent for the court to go ahead and reaffirm that,” Wang said, “but of course we’d be happy to take a win on any ground.”
Gorsuch says Trump administration has a point – dating back to 1800s
Aysha Bagchi
Several of the questions during oral arguments today have focused on Supreme Court decisions from the 1800s, showing just how long ago these ideas around citizenship were being developed.
That was true of a question Justice Neil Gorsuch, a Trump appointee, posed to ACLU lawyer Cecillia Wang. He pointed to language from an 1884 Supreme Court decision known as "Elk v. Wilkins" that suggested birthright citizenship goes to people who are "completely subject" to U.S. political jurisdiction, rather than only under that U.S. political power "in some respect or degree."
"That language sure sounds a lot like the Solicitor General's presentation today," Gorsuch said, referring to arguments from Trump's top Supreme Court advocate, John Sauer.
Wang, however, pointed to a slightly more recent Supreme Court decision, the 1898 "United States v. Wong Kim Ark" ruling. She said in that ruling, the Supreme Court made it clear its 1884 decision "has no bearing on the question of foreign nationals."
Alito calls 14th Amendment language a 'puzzle' and 'enigma'
Bart Jansen
Justice Samuel Alito focused on the 1866 Civil Rights Act, which was approved about the same time as the 14th Amendment, because the language is more straightforward about who is a citizen.
Alito said the amendment’s language, which requires citizens to be “subject to the jurisdiction thereof” the United States, is like “the puzzle wrapped in an enigma wrapped in a mystery.” But Alito said the 1866 law said citizenship is for children “not subject to any foreign power,” which he called “pretty straightforward.”
Alito asked whether the children of Iranian or Russian or Mexican parents should be considered citizens if they were obligated to serve in the military of those countries because of their parents’ citizenship.
“It sure seems like that makes them subject to a foreign power,” Alito said.
Cecillia Wang, national legal director of the American Civil Liberties Union, said those military obligations don’t block citizenship under the 1866 law.
“What the framers meant by the phrase ‘not subject to any foreign power’ was referring to the ambassador exception,” Wang said. Otherwise the children of any foreign nationals might lose their U.S. citizenship, she said.
Outside the Supreme Court, some listen to arguments on a speaker
N'dea Yancey-Bragg
As oral arguments got underway, the line to get into the court dissipated. Katherine Earnst said she opted to “self eject” from the line and listen to oral arguments on a friend’s speaker in the grass.
Earnst said she was already considering coming, but officially made the decision “when I heard that it would be the first time a sitting president was going to be in the gallery looking at three of the justices that he had named to the court, essentially enacting a scene straight from Sopranos.”
Earnst, a former law clerk at the Senate, said arguments have been interesting so far, particularly questions from Ketanji Brown Jackson and about the word “domiciled.” She’s hopeful the court will eventually side against the administration.
“Because immigration is what made America incredible. It's what made us into the superpower that we are,” she said. “And if we're supposed to be proud of that, why are we going to be throwing that away?”
Democrat senator says Trump’s bid to limit birthright citizenship is ‘wrong’
N'dea Yancey-Bragg
Senator Alex Padilla, D-California, held up his own copy of the Constitution and a protest sign to stress the clarity of the language in the 14th Amendment.
“It’s almost unbelievable that we’re here today because as the sign says the 14th Amendment speaks for itself,” Padilla said.
Padilla said President Donald Trump is trying to “pick who gets to be an American” calling the move “wrong,” “un-American” and “dangerous.” He expressed optimism that the court would reject the administration’s arguments against birthright citizenship.
The Senator also said the case is personal for him because he is a “proud son of immigrants.”
“From the moment I was born I was a US citizen,” Padilla said. “I’ll be damned if Donald Trump tries to take that away from me.”
ACLU pushed on court's 1898 ruling
Maureen Groppe
Cecillia Wang, the attorney for the challengers, is getting a lot of questions about the use of the word “domicile” in the court’s landmark 1898 decision in Wong Kim Ark.
The Trump administration relies on the frequent use of the word in that decision to argue that the ruling turned on the fact that the parents of Wong Kim Ark were legal and permanent residents.
Justice Neil Gorsuch suggested the purpose of the word “domicile” in the 1898 decision is uncertain.
“It seems to me it’s a mess,” he said. “Maybe you can persuade me otherwise.”
Wang said the 1898 court made clear that parents’ residential status was relevant to its decision and other federal court decisions did the same.
Trump leaves Supreme Court after Sauer's argument
Bart Jansen
Trump left the Supreme Court after Solicitor General Sauer’s more than an hour-long argument before the justices.
Trump’s return to the White House at 11:30 a.m. meant he didn’t hear the argument against his executive order, which placed restrictions on birthright citizenship, from Cecillia Wang, national legal director of the American Civil Liberties Union.
Roberts focuses on 'domicile' appearing 20 times in previous court ruling
Bart Jansen
Chief Justice John Roberts asked why opponents of Trump’s order, which requires parents to be “domiciled” in the United States for their babies to become citizens, dismissed the term that appears 20 times in an 1898 court decision that upheld birthright citizenship.
“The government doesn’t want it to be overruled because it relies on that particular fact in that case,” Roberts said. “Isn’t it at least something to be concerned about, to say since it was discussed 20 different times, and it has that significant role in the opinion, that you can just dismiss it as irrelevant?”
Cecillia Wang, national legal director of the American Civil Liberties Union, said birthright citizenship came from English common law that didn’t require parents to be domiciled.
“You can’t make sense of the holding in the case, without looking to the controlling rule of decision, which is the common law,” Wang said.
Barrett suggests win for Trump could invite tricky questions
Aysha Bagchi
The Trump administration has argued that birthright citizenship under the Constitution goes to children of people who are "domiciled" in the United States, meaning they are in the U.S. with a permanent or indefinite intent to stay. Children of unauthorized immigrants, the Trump administration has said, are legally unable to form that intent.
Justice Amy Coney Barrett, a Trump appointee, suggested that definition of birthright citizenship could be difficult to actually apply.
"You're not going to know at the time of birth, for some people, whether they have the intent to stay or not," Barrett said.
John Sauer, arguing for the Trump administration, said the president's executive order doesn't require the court to analyze those cases because it grants birthright citizenship based on the legal immigration status of a child's parents, so it doesn't require courts to analyze a parent's intent.
"As a practical matter, I don't think it's presented by this executive order," Sauer said.
Gorsuch brings up citizenship law
Maureen Groppe
Justice Neil Gorusch raised the fact that the 1952 Immigration and Nationality Act uses the same language as the 14th Amendment.
Gorsuch asked whether there’s an argument that the law was understood in 1952 to grant birthright citizenship to the people Trump wants to exclude. That would allow the court to rule against Trump’s policy without having to decide what the language meant when it was adopted in the Constitution in 1868 − a loss for Trump but not as big a loss.
Solicitor General John Sauer said it would be very surprising if a law that uses the same language as a clause in the Constitution means something completely different.
“So really, at the end of the day, then this is a straight up constitutional ruling you want from this court?” Gorsuch asked.
If the court does rule against Trump on the original meaning of the citizenship clause, that would mean the president’s birthright citizenship policy could only be adopted by amending the Constitution.
Kagan says rationale for birthright citizenship has held for 'a long, long time'
Bart Jansen
Justice Elena Kagan asked Solicitor General John Sauer for his rationale to change more than 125 years of Supreme Court interpretation of birthright citizenship applying to nearly all children born in the United States.
She said the 14th Amendment ratified in 1868 came from a common law tradition in England and the high court interpreted it as applying without limitations in 1898.
“That was the clear rationale, a clear rationale that is diametrically different from your rationale,” Kagan said. “Everybody has believed that for a long, long time.”
Sauer said there was uncertainty about birthright citizenship for 50 years, as seen in 12 legal treatises about children of “temporary sojourners” not deserving citizenship from 1881 to 1921.
“The consensus goes entirely in the opposite direction,” Sauer said. “What’s at issue here that was not at issue (in the 1898 court decision) is the children of temporary visitors do not become citizens under the clause."
Sotomayor says Trump admin wants Supreme Court to overrule earlier decisions
Aysha Bagchi
Justice Sonia Sotomayor, an Obama appointee, said the Trump administration is urging the Supreme Court to overrule its past decisions. She specifically referenced an earlier decision in which the Supreme Court said that the child of a woman who unlawfully overstayed her visa "is, of course, an American citizen."
John Sauer, who is arguing on behalf of the Trump administration, replied that the administration isn't asking for overturning a past ruling because he doesn't see that earlier statement from the high court as a fully-fledged decision.
"We think that's similar to a drive-by jurisdictional ruling, where there's a simple statement that's not debated, there's no further analysis of it. There's really an assumption there," Sauer said.
Sotomayor: Win for Trump could open door to stripping citizenship from more people
Aysha Bagchi
Justice Sonia Sotomayor suggested that a win for the Trump administration in this case could open the door to a future executive order targeting birthright citizenship for people born before Trump re-took the Oval Office.
Trump's executive order only targeted birthright citizenship going forward. It didn't aim to strip that citizenship from anyone who had previously received it.
"The government could move to unnaturalize people who were born here of illegal residents," she suggested to John Sauer, who is arguing for the Trump administration.
Sauer said the Supreme Court should issue a ruling that only applies going forward.
"We are not asking for any retroactive relief," he said.
Hundreds gather for birthright citizenship rally outside Supreme Court
N'dea Yancey-Bragg
In front of the court, the number of demonstrators swelled shortly after President Donald Trump arrived. A large group came marching in beating a drum and joined the crowd in front of the Supreme Court.
ACLU spokesperson Anu Joshi said she expects between 500 and 700 people will attend the protest.
Mike Martin, 75, was among them. Martin said he came from his home in Springfield, Va. He said he doesn’t know anyone personally who could be affected by the executive order, but said he felt compelled to come to the court to show his support for birthright citizenship. He pointed out that even when courts were pushed to revoke citizenship for Japanese Americans born in the United States after the attack on Pearl Harbor, they rejected the argument.
“I just feel very strongly that this is yet another way to challenge our laws, circumvent our laws by executive order,“ he said.
As Martin spoke to USA TODAY another man, who did not give his name, interjected.
“I'm all for people coming to America,” he said. “Let's just do it the right way.”
The vast majority of demonstrators appeared to be in support of birthright citizenship. At one point, a man in a Trump 2024 shirt stopped briefly then continued biking past. As speakers began addressing the crowd, one counter protester continually shouted through the speeches. She was surrounded by law enforcement and representatives from the ACLU but continued speaking.
Chief Justice Roberts presses DOJ on 'birth tourism'
Maureen Groppe
Chief Justice John Roberts pushed back on the Trump administration’s claim that “birth tourism” is reason for the court to uphold the president’s executive order.
He first asked the lawyer for the Justice Department how common it is for people to come to the United States for the sole purpose of having a baby.
“No one knows for sure,” Solicitor General John Sauer responded.
Roberts then asked Sauer if he agrees that the issue “has no impact on the legal analysis,” pointing out that birth tourism wasn’t a problem in the 19th Century so could not have been considered by the authors of the citizenship clause. It may be a new world, Roberts said, “but it’s the same constitution.”
In response, Sauer referred back to Justice Alito’s question about whether the general language of the citizenship clause can be interpreted more broadly to accommodate evolving situations. That would allow the court to address “reasonably comparable evils,” he said.
Advocate says president can’t change birthright citizenship on a ‘whim’
Swapna Venugopal Ramaswamy
Shana Khader, deputy legal director at We Are CASA, an immigrant rights organization with more than 180,000 members, said President Trump’s executive order on birthright citizenship was "illegal."
“The 14th amendment is clear and protects all of us who are born in the U.S. The president can not just take this illegal action. What the EO purports to do has enormous consequences both legal and practical and symbolic for immigrant communities,” she said as she stood before the steps of the Supreme Court as the president attended the hearing.
“At its core it’s a question about who has the right to be a citizen and the president cannot change that on a whim.”
It will also result in chaos when a person’s birth certificate is no longer proof of U.S. citizenship, she said.
Jackson questions administration's view of being 'domiciled' in US
Bart Jansen
Justice Ketanji Brown Jackson asked Solicitor General John Sauer what he meant when he argued that immigrant parents must be “domiciled” in the United States for their children to deserve citizenship.
“I’m struggling to figure out who is domiciled in your argument,” Jackson said.
Sauer said domiciled means people who are lawfully present in the country and have an intent to remain permanently. But Jackson asked whether Congress could alter that definition, which could defeat the permanence of birthright citizenship that the authors of the 14th Amendment sought.
“No, I don’t think so, because it is up to the alien whether they want to be domiciled here,” Sauer said.
'Very quirky': Roberts questions Trump admin's argument
Aysha Bagchi
Chief Justice John Roberts appeared to question one of the arguments from the government for excluding the children of unauthorized immigrants from birthright citizenship. The government said in a court filing that children of ambassadors and of invaders don't get automatic citizenship by being born within U.S. territory, and that shows parental status is relevant to a child's citizenship status.
"The examples you give to support (your argument) strike me as very quirky," Roberts told John Sauer, who is arguing on behalf of the government.
"Children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to the whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples," Roberts said.
Sauer said there is historical evidence to support understanding birthright citizenship as being conferred to people who don't owe allegiance to any other country.
Unrestricted birthright citizenship 'demeans' American citizenship: Sauer
Bart Jansen
Solicitor General John Sauer argued that the 14th Amendment ratified in 1868 shouldn’t grant citizenship to the holders of temporary visas or immigrants without legal authorization to be in the country.
“Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations,” Sauer added. “It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws but also jump in front of those who follow the rules.”
“It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States," Sauer said.
Alito asks about adapting citizenship clause to current situation
Maureen Groppe
Justice Samuel Alito, one of the court’s most conservative justices, asked the Justice Department how the court should consider the fact that the problem Trump wants to address – illegal immigration – was “basically unknown” at the time the citizenship clause was adopted.
Does a general rule like birthright citizenship apply only to the situations the authors of the amendment had in mind or can it be applied to new circumstances, he asked.
His question could show a willingness to adapt the language to the present time.
Justice Elena Kagan immediately followed up to say that Alito’s theory is not central to the argument the Justice Department made in its written filing.
"Most of your brief is not about illegal aliens," she said.
Thomas asks if Trump's order affects state citizenship
Bart Jansen
Justice Clarence Thomas asked Solicitor General John Sauer how Trump’s order restricting national citizenship could affect state citizenship.
“Are we to have two definitions for those?” Thomas asked.
Solicitor General John Sauer quoted the 14th Amendment applying to “citizens of the United States and of the State wherein they reside.” But he said, as applied under Trump’s order, that the children must be born to people who are domiciled in the United States rather than temporary or unauthorized visitors.
“There is a constitutional guarantee that applies to both federal or national and state citizenship,” Sauer said.
Debate begins with Justice Department’s opening argument
Maureen Groppe
The debate, which is scheduled for an hour but is expected to go much longer, has begun.
Solicitor General John Sauer, the lawyer representing the Trump administration, goes first because the administration is appealing a lower court’s ruling that the president’s executive order is probably illegal.
Sauer told the court that the citizenship clause of the 14th Amendment was adopted after the Civil War to grant citizenship to newly-freed slaves and their children. It did not grant citizenship to the children of people in the country temporarily or without documentation, he said, because those parents lack “direct and immediate allegiance” to the United States.
Sauer said this misunderstanding of the 14th Amendment contradicts the practice of most modern nations and is a powerful incentive for illegal immigration and “birth tourism.”
People hoping to get into Supreme Court say arguments are personal
N'dea Yancey-Bragg
For Alba Rivera, 50, the issue before the Supreme Court is deeply personal.
Rivera said she came to the United States from El Salvador in 1989 when she was a teenager and had children before becoming a citizen. Her son got in line for oral arguments around 2 a.m. and she brought her daughter, 13-year-old Arianna Aleman, with her to the court to show her support for other immigrant families at around 6 a.m. on Wednesday.
“I had my children when I didn't have any status in this country,” she said. “So that's why I'm over here to support my children and my people and people who come from other countries than Spanish ones.”
Elaria Essak, an international child protection lawyer who said she arrived around 4 a.m., echoed that sentiment.
“I am a daughter of immigrants,” she said. “This is a really important case for me. I'm also representing the Coptic diaspora.”
Essak has attended oral arguments at the Supreme Court before, but she’s worried about her chances of getting in today. She said she’s witnessed some people cutting in line. She’s not sure exactly how the court will rule but, having previously worked in immigration law and kept a close eye on these kinds of cases, she’s expecting a close decision. Whatever way the court decides, Essak is worried about the “ripple effects.”
“No matter what someone's political views are, we have to really consider that there are really heavy consequences if birthright citizenship is revoked,” she said. “And there are also heavy consequences if it continues. It’s going to be under scrutiny, I think, for a long time, at least for the remainder of this administration.”
Trump arrives at Supreme Court
Bart Jansen
Trump arrived at the Supreme Court about 9:40 a.m. for his unprecedented attendance at an oral argument.
His motorcade passed school groups touring the National Mall on his way from the White House to the court, which is across the street from the Capitol.
His car pulled around to the back entrance of the court.
Demonstrators urge Trump to keep ‘hands off birthright citizenship’
N'dea Yancey-Bragg
Outside the Supreme Court, dozens of demonstrators and spectators are gathered ahead of oral arguments. Protesters are blasting music by Bad Bunny, chanting “ICE OUT” and carrying signs urging President Donald Trump to keep his “hands off birthright citizenship.”
Dozens more are lined up alongside the court waiting to see if they’ll be let inside to watch oral arguments. One of those at the front of the line, Leo Contrera, has been waiting since Monday.
Contrera, 43, and his nephew have been taking turns getting food, going to the bathroom and running to Walmart for supplies. He’s slept and brushed their teeth on the sidewalk for days all in hopes of attending oral arguments for the first time.
Contrera said he traveled all the way from Kansas City because he’s worried about the potential ripple effects if the executive order is put into effect. He worried how it would impact not only his own Latino community, but all Americans.
“My parents are US citizens. I'm a US citizen, born and raised. And so it doesn't affect me at all,” he said. “But it's important for other people and that's important enough to come out and speak up if I have an opportunity.”
How the Supreme Court has ruled on Trump’s other immigration policies
Maureen Groppe
Most of the Supreme Court’s rulings on Trump’s immigration policies so far have been interim decisions about whether the policies can go into effect as they’re being litigated.
Trump has an impressive winning streak on those cases.
But while the Supreme Court has historically been deferential to presidents on immigration issues, defining who is an American by birth is different, according to longtime immigration law scholar Stephen Yale-Loehr.
"This involves a clause in the Constitution itself,” Yale-Loehr said.
What about the Supreme Court’s 1898 ruling on birthright citizenship?
Maureen Groppe
The Justice Department says the Supreme Court doesn’t need to overturn its 1898 ruling on birthright citizenship to approve Trump’s executive order.
That decision upheld only the citizenship of a Chinese American man whose parents were lawful and permanent residents, the department’s lawyers argue.
But lawyers for the challengers say the 1898 court made clear that parents’ residential status was relevant to its decision.
ACLU offers to 'school' Trump on Constitution as he attends Supreme Court
Bart Jansen
Anthony Romero, executive director of the American Civil Liberties Union, which is arguing against Trump’s executive order in the birthright citizenship case, welcomed the president's attendance at the court to “school him” about the Constitution.
“If President Trump wishes to come to the Supreme Court to watch the ACLU school him in the meaning of the Constitution and birthright citizenship, we will be glad to sit alongside of him in that very court,” Romero said in a statement.
“Any effort to distract from the gravity and importance of this case will not succeed,” Romero added. “The Supreme Court is up to the task of interpreting and defending the Constitution even under the glare of a sitting president a couple dozen feet away from them.”
Spectators line up days early at Supreme Court to witness arguments
Bart Jansen
People bring folding chairs and sleeping bags to camp out as if for a concert days ahead of time for seats to the Supreme Court, although in this case the rock stars are justices and lawyers arguing the case.
The ornate courtroom has more than 400 seats, but most are occupied by clerks, lawyers and reporters, according to Scotusblog.com, which covers the court.
That leaves about 50 seats for the general public for the argument that begins at 10 a.m.
Meet Cecillia Wang of the ACLU, who is representing the challengers
Maureen Groppe
Cecillia Wang, the national legal director for the American Civil Liberties Union, is representing the families challenging Trump’s executive order.
Under Wang’s leadership, the ACLU challenged several immigration policies of the first Trump administration, including the administration’s unsuccessful effort to add a citizenship question to the 2020 Census.
Wang, who clerked for two former Supreme Court justices, has said her American citizenship was made possible by the 14th Amendment’s birthright citizenship guarantee and by changes to laws that had restricted Asian immigration.
Meet the lawyer, Solicitor General John Sauer, arguing for Trump
Maureen Groppe
Solicitor General John Sauer, the government’s top lawyer on Supreme Court matters, is representing the Trump administration.
Sauer, who clerked for the late Justice Antonin Scalia, has secured big wins for Trump at the high court. Those include the 2024 ruling handing Trump significant immunity for some potentially criminal acts and last year’s decision limiting the ability of judges to block Trump’s birthright citizenship executive order.
But in February, the court struck down the sweeping tariffs that were central to Trump’s economic agenda.
The policy arguments for and against Trump’s birthright citizenship order
Maureen Groppe
The Trump administration says the president's executive order is necessary because the ongoing “misinterpretation” of the 14th Amendment is a powerful incentive for illegal immigration and encourages “birth tourists” to travel to the United States solely to acquire citizenship for their children.
Cody Wofsy, one of the ACLU attorneys leading the challenge, counters that birth tourism is a “tiny marginal issue that is already addressed by federal regulations that make it illegal.” The ACLU also argues that birthright citizenship embodies fundamental American values of equality and opportunity.
Who is challenging Trump’s executive order?
Maureen Groppe
Trump’s order was immediately challenged by Democrat-led states and immigrant advocacy groups representing expectant parents and their children.
The lead plaintiff in Trump v. Barbara, the case before the court, is a pseudonym for a woman seeking asylum from gang activity in Honduras who says her family has become part of the local community in New Hampshire.
A federal judge in New Hampshire concluded that the executive order likely violates the 14th Amendment and federal law. (All the other judges who have ruled on the order reached similar conclusions.)
Trump says he'll attend Supreme Court argument
Bart Jansen
Trump plans to become the first sitting president to attend an oral argument at the court, making an unprecedented appearance to reinforce his contention that the 14th Amendment shouldn’t provide citizenship to nearly anyone born in the United States.
"I'm going," Trump told reporters March 31, adding: "I think so. I do believe. Because I've listened to this argument for so long."
Trump previously said he was considering attending the high court’s argument about his emergency tariffs, but opted against it. The court ruled that he wasn’t authorized to impose the tariffs, although he has other options to impose tariffs. He was highly critical of two justices he appointed – Neil Gorsuch and Amy Coney Barrett – who joined the 6-3 majority to overturn the tariffs.
Trump's attendance would be a first. Former President Richard Nixon appeared as a lawyer before the high court. William Howard Taft served as president before joining the court as chief justice. And former President John Quincy Adams, who was then serving in the House, argued the Amistad case before the high court in 1841.
The legal issue in 14th amendment being debated
Maureen Groppe
The 14th Amendment grants automatic citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
The legal fight is over the meaning of “subject to the jurisdiction.”
The Justice Department says that phrase means more than having to comply with U.S. laws and includes a concept of allegiance that can’t be met by people who are in the country temporarily or who entered illegally.
The challengers argue that “subject to the jurisdiction” was intended to exclude only the children of diplomats, of invading armies and to Native American Tribes who have since been granted birthright citizenship through a 1924 law.
Didn’t the Supreme Court already debate Trump's policy?
Maureen Groppe
The court last year debated the ability of judges to pause Trump’s executive order while it’s being litigated.
In a 6-3 decision, the court made it harder – though not impossible − to curb presidential policies on a nationwide basis. In doing so, the majority did not address the legality of Trump’s order. But the court’s three liberals touched on it in their joint dissent.
Justice Sonia Sotomayor, for example, referred to the order’s “patent unlawfulness.”
“As every conceivable source of law confirms, birthright citizenship is the law of the land,” she wrote in the dissent.