APRIL 1, 2026
The Key Supreme Court Exchanges on Birthright Citizenship. – Tonia Cowa
The Supreme Court left the fate of President Trump’s executive order limiting birthright citizenship in doubt after justices on its conservative majority opened with tough questions on the government’s position that the 14th Amendment wasn’t meant to grant citizenship to the children of immigrants in the U.S. illegally or temporarily.
But they injected new uncertainty later in the two-hour hearing when some key justices started asking about current exceptions to automatic birthright citizenship under the Constitution, and whether those open the door to the ones that Trump is trying to enact.
Here are a few key exchanges from Wednesday’s proceedings.
Chief Justice John Roberts initially seemed doubtful of the government’s argument that the 14th Amendment’s Citizenship Clause excludes a broad group of children of immigrants who aren’t permanent residents or in the country legally—noting that the current exceptions are quite narrow.
But later, while questioning the lawyer representing the challengers, he seemed sympathetic to the government claim that the court’s own precedent supports the Trump administration’s position. Solicitor General John Sauer had argued the court in a 1898 case, known as Wong Kim Ark, suggested that U.S. citizenship doesn’t extend to the children of immigrants who aren’t allowed to reside in the U.S.
The court ruled in that case a U.S.-born son of Chinese immigrants was a U.S. citizen under the 14th Amendment.
The Citizenship Clause states: “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.” But what does it mean to be “subject to the jurisdiction thereof”? Elena Kagan pressed the government on its interpretation.
Trump’s order appeared to be in trouble when Justice Samuel Alito, one of the court’s staunchest conservatives, asked the government’s lawyer to address the “humanitarian problem” that would arise if birthright citizenship were limited.
But Alito later pressed the challengers’ attorney about the Civil Rights Act of 1866, which established the first federal rule for birthright citizenship. It was also used as the basis for the 14th Amendment’s Citizenship Clause.
Alito suggested the 1866 law was clear in excluding temporary and illegal immigrants when it defined citizens as all persons born in the U.S. and “not subject to any foreign power, excluding Indians not taxed.”
Justice Neil Gorsuch, whom Trump appointed to the court, questioned how to square arguments against Trump’s order with the current birthright citizenship exception for children of Native American tribes. In an exchange with the challengers’ lawyer, he referenced the 1884 ruling Elk v. Wilkins, in which the court said a Native American man born into a tribe wasn’t a citizen at birth under the 14th Amendment.
Justice Clarence Thomas asked only a few questions, which seemed to lean in favor of the administration. In one particularly telling moment, he asked a question that opened the door for Sauer to talk about the debates in Congress when the 14th Amendment’s Citizenship Clause was ratified and how they support the government’s position now. Trump has said that the Citizenship Clause was meant to give newly freed slaves and their children birthright citizenship, not immigrants in the country temporarily or illegally.
Courtesy/Source: WSJ
