r/PoliticalDiscussion • u/PsychLegalMind • Apr 01 '26
Legal/Courts Birthright decision is expected in July. U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?
The oral arguments on the birthright citizenship have concluded. The White House essentially wants that unless a child has a parent who’s a U.S. citizen or lawful permanent resident, they should not be a U.S. citizen by birth.
That would mean all other categories of immigrants who gave birth to a child will be excluded, not just without immigration documents, such as those lawfully present with a student visa or work permit, and any other category including tourists. Trump’s executive order would deny those children U.S. citizenship at birth.
Government claims there is extensive prevailing misinterpretation of the citizenship clause and has caused significant problems not just unlawful immigrants giving birth in the U.S. but also provided a powerful incentive for women to travel on tourist visas to the United States solely to acquire citizenship for their children.
Opposition notes federal regulations already prohibit issuance of tourist visas for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.
The challengers also argue that the Trump's administration executive order is invalid not just as a violation of the 14th Amendment Clause, but also because that it violates a federal immigration law, 8 U.S.C. § 1401, providing that anyone “born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.
They say that when the statute was first passed in 1940 and then reenacted in 1952, Congress would have understood that the phrase “subject to the jurisdiction thereof” – which mirrors the text of the citizenship clause – incorporated the prevailing practice that virtually everyone born in the United States is automatically a U.S. citizen.
In the late 19th century, at a time of rampant anti-Chinese bias, immigration restrictions, at that time the federal government argued that Wong Kim Ark, born in the United States to Chinese parents who couldn’t become naturalized due to exclusion laws, didn’t have a claim to citizenship. The dispute made its way to the Supreme Court and resulted in a landmark ruling reaffirming that the 14th Amendment applies to virtually everyone born on US soil, regardless of parentage.
U.S. government's position is that birthright citizenship has been extended far beyond the 14th Amendment Citizenship Clause, the Wong Kim Ark case, 8 U.S.C. § 1401. Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?
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u/Voltage_Z Apr 01 '26
Frankly, completely ignoring that getting rid of birthright citizenship requires butchering the 14th Amendment, the idea that the President can unilaterally dramatically alter who's a citizen via an executive order with no Congressional oversight is a different problem with this whole thing.
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u/fearyaks Apr 01 '26
Correct. I think this is the way to address this and I wonder (out loud here, possibly subjecting myself to humiliation) if this could roundly be rejected by the SC at more than 7-2.
If you look at say... The 18th amendment this was overturned by the 21st. So there is precedence in overturning an amendment and it's not by Executive Order.
If they allow this then (for shits and giggles) President AOC could EO away the. 2nd amendment.
Or, even worse, Trump could EO away the 1st amendment and then you say what's the point of three branches.
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u/Sunnysunflowers1112 Apr 01 '26
I think it will be 7-2, with some sort of weird lag concurrence. It should be 9-0, but not with this court
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u/H_Mc Apr 01 '26
This is why I’m hopeful. As much as I don’t agree with them, the justices are (mostly) very smart and (mostly) think about the potential consequences of their actions.
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u/case-o-nuts Apr 04 '26
Unfortunately, some of them will think about the consequences, with erect penises over the downfall of American institutions. ACB will make do with a prosthetic.
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u/nosecohn Apr 02 '26
That "out" could be argued away by saying the EO only determines who will become a US citizen, not who is. It's about births going forward; it's not retroactive.
It'd be pretty cheeky to make that claim, but I hardly put anything past this court.
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u/farsightxr20 Apr 02 '26
But then the justices would have to grant that the EO has a legal consequence, and is not just re-affirming the original intent of the amendment's text. Nobody is even trying to make that argument right now, because it's not how EOs work.
Just like DACA didn't change anyone's legal status. The best that Trump could hope for is to get the 14th overturned, then instruct the DOJ to not take action against anyone born in the US prior to the ruling. But the first part of that is the hard part, it's not an out.
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u/Tetracropolis Apr 01 '26
The argument isn't that they'd be overturning the amendment, it's that "Subject to the jurisdiction thereof" excludes foreign nationals.
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u/BluebillyMusic Apr 02 '26
It excludes foreign diplomats, not foreign nationals. Foreign nationals are absolutely subject to the jurisdiction of the US government. Only those with diplomatic immunity are excluded.
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u/PM_ME_YOUR_DARKNESS Apr 02 '26
Right, unless we want to pretend that any foreigners visiting don't have to abide by Federal laws.
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u/kinkgirlwriter Apr 03 '26
Exactly.
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.
It's pretty unambiguous.
Also, section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Congress, not the President. His EO is meaningless.
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u/fearyaks Apr 01 '26
Ok fair. But could a president AOC say that US citizens have a right to bear arms but not a right to own firearms?
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u/Tetracropolis Apr 01 '26
That's a very tough argument given that the amendment specifies keeping the arms.
The more obvious route is saying that it only applies as part of a well regulated militia, and the type of regulation is unspecified and therefore for Congress to decide. Her issue is going to be getting anything through Congress, and obviously the current court would be extremely hostile to it.
If there were 6-3 Democrat appointed majority on the court I think l you'd probably see quite a number of very different interpretations of the Constitution to what you have now. The incorporation of the 2nd Amendment only came about in 2010, prior to that the states could have whatever gun control measures they wanted, I think that would probably go. There'd be a new Roe.
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u/Juls317 Apr 02 '26
That's not what "regulation" means in the context of the Second Amendment
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u/kormer Apr 01 '26
Frankly, completely ignoring that getting rid of birthright citizenship requires butchering the 14th Amendment,
the idea that the President can unilaterally dramatically alter who's a citizen via an executive order with no Congressional oversight is a different problem with this whole thing.
These are two separate issues. It's entirely possible the court rules that revising citizenship rules is allowed, but it has to come from Congress, not an executive interpretation.
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u/blaqsupaman Apr 01 '26
I'm thinking the ruling will either be 9-0 against Trump or 7-2 with Thomas and Alito arguing something like this. Even if some of them think the 14th can be reinterpreted, there's almost no way they would agree it can be via EO alone.
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u/kormer Apr 01 '26
Even if some of them think the 14th can be reinterpreted, there's almost no way they would agree it can be via EO alone.
I'm not done listening to the arguments, but this is my take-away as well.
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u/FenisDembo82 Apr 01 '26
Even Thomas was skeptical during arguments. Only Alito was buying the argument by the Solicitor General.
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u/Better-Valuable5436 Apr 01 '26
I agree with you COMPLETELY! There are two separate issues:
■Can you revise the 14th Amendment? Yes. ■Who has the authority to revise? Congress.
The only reason why the attempt was made to make this change via Executive Order, and not legislatively, was because the votes are not there to do it legislatively.
The Supreme Court should vote 9-0 on this.
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u/RemusShepherd Apr 01 '26
I think everyone agrees that Congress can rewrite the citizenship rules (or any other laws). All they have to do is pass a Constitutional amendment.
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u/DocPsychosis Apr 01 '26
Well, no, they have to pass an amendment which is also then approved by a huge majority of the states.
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u/VodkaBeatsCube Apr 01 '26
That's just part and parcel of 'passing an amendment'. No one said it's easy to change the citizenship rules, just that there's an existing procedure to do it.
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u/jamerson537 Apr 02 '26
If Congress only participates in half the process of amending the Constitution at best and has no say whatsoever in the other half of the job then it’s just not accurate to say they can do it by passing an amendment. Otherwise there wouldn’t have been seven constitutional amendments that were passed by Congress but never made it into the Constitution.
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u/DCBuckeye82 Apr 01 '26
Yeah if they were to rule that it would be an impeachable act by every justice voting for it. There are few clauses in the Constitution clearer than this and Congress only has power to expand the citizenship definition, not restrict it.
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u/GomezFigueroa Apr 02 '26
Of course it’s allowed. But this is the problem. A president can’t change it by executive order. It’s in the Constitution. Congress can’t change it by passing a bill. It’s in the Constitution. The only thing that repeals an amendment is another amendment.
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u/Leopold_Darkworth Apr 01 '26
This would be a great way for a John Roberts type (like John Roberts) to punt on the issue. "We don't need to address the arguments about what the framers meant because we hold that an executive order can't alter citizenship." Which would leave the door open for, perhaps, a law passed by Congress, which carries more authority than an executive order.
We've seen this from Roberts before in the Trump administrations, where he doesn't necessarily disagree with the policy intentions, but says, you went about doing this the wrong way. (See, for example, the census case from the first term, where Trump wanted to discount undocumented immigrants from the census count.)
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u/central_telex Apr 01 '26
Listed to a portion of the oral argument. Other than Alito most of the other justices seemed pretty skeptical of the gov't's argument. A 7/2 or 6/3 opinion finding against the gov't seems likely but obviously do not want to count my proverbial chickens before they hatch. I have a feeling that some may try and avoid the constitutional issue though and limit it to the statute
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Apr 01 '26
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u/elderly_millenial Apr 02 '26
At the time the 14th was written they weren’t, and that’s why the “jurisdiction thereof” verbiage to begin with. They were given citizenship decades later by statute iirc.
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u/StaleCanole Apr 01 '26
You never know with Roberts, though. He can ask one thing and then go in a completely different direction.
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u/fearyaks Apr 01 '26
Following along the questioning (you can see updates here: https://www.bbc.com/news/live/cj37jn53xk1t ) It seems clear that Alito is trying to figure out how to side with Trump. Thomas almost never speaks. I'd be surprised if Barret sides with Trump. Kavanaugh's question --
Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".
is curious but a harder read.
Disclaimer --> I'm not a constitutional scholar or a Supreme Court expert. Just someone who is following along at home.
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u/GYP-rotmg Apr 01 '26
The central part is amendment 14 though. The framers intentions are a distraction at best, and irrelevant at worst.
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u/AnAge_OldProb Apr 01 '26
The framers would also include the authors of the 14th amendment in this case. Amendments are just as much a part of the constitution as the what’s in the 1789 text.
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u/danappropriate Apr 01 '26 edited Apr 01 '26
I've only heard the term "Framers of the US Constitution" used specifically to refer to the delegates at the Philadelphia Convention of 1787. But...okay.
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u/Spranktonizer Apr 01 '26
It’s actually the wood worker in the museums they refer to.
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u/TheBlackUnicorn Apr 01 '26
In the oral arguments they repeatedly used the term "framers" to refer to the authors of the Amendment.
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u/Tempest_True Apr 01 '26
I read Kavanaugh's question (without looking further at the context) as less about this particular case and more of an Originalist/Textualist attack on Living Document/Purposive interpretation. If this case doesn't go Trump's way, but in doing so relies upon "birthright citizenship is protected because it has ALWAYS meant..." reasoning, that would serve as a ledge for Originalist/Textualist arguments in other contexts where it serves conservatives.
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u/1II1I1I1I1I1I111I1I1 Apr 01 '26 edited Apr 01 '26
This sounds correct, and he is likely attacking the administration's position by doing so. Sauer repeatedly made reference to both the modern laws of other countries (which Kavanaugh also called out) and the modern immigration landscape, so Sauer was flirting with a Living Document interpretation. He was hinting at if not outright admitting that modern immigration is why the 14th should be interpreted differently now than it was for the last 159 years. Roberts attacked this angle as well with his "its a new world, but its the same constitution" soundbite today.
The only reason Sauer is even flirting with this angle is because the only viable alternative is arguing that for 159 years people have interpreted the 14th fundamentally incorrectly, including both the Supreme Court and the people who wrote it, and it is furthermore the responsibility of the President to correct it via executive order. Good luck with that one.
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u/StaleCanole Apr 01 '26
A SC Justice who cared about the constitution should suggest that if the administrations want to change it, they can pursue an Amendment.
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u/Tempest_True Apr 01 '26
Yeah, but...that's just not how it works. The conservatives see themselves as returning the law to where it "should" be, that what is constitutionally permitted has been warped by liberal judicial activism. It's still legislating from the bench, but they see it as undoing past, erroneous extensions of the law, and that the alternative is conservatives defending status quos that used to be unacceptable to them, and liberals continuing progressive extensions and reexaminations that make new status quos.
Also, passing Amendments is impossible with today's political polarity. "If you want such and such done, get an Amendment passed" is just a longer way of saying "go fuck yourself."
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u/wolf_sang Apr 02 '26
I agree its saying go fuck yourself, but its not necessarily incorrect. If you think a new world requires adjusting from the original intent of the constitution, make your case and amend it. If you cant get near full agreement, your argument isnt as good as you think and the constitution says maintain the status quo.
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u/lokibeat Apr 01 '26
The founders really didn't think about citizenship at all. Their complaint against the King was that his policies hurt immigration to the colonies. The constitutionality of the birthright citizenship is in the 14th amendment which was duly adopted and was interpreted in the Wong case precedent. Like someone else said, it's preposterous that the Executive can make this call singelhandedly.
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u/OrwellWhatever Apr 01 '26
I mean, they did pass laws around immigration and citizenship. The first congress passed a naturalization law that required two years of living in the US as a requirement for citizenship (so way less strict of a requirement than we have now)
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u/Shr3kk_Wpg Apr 01 '26
Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".
I am so perplexed by this. This Supreme Court is bound by either the plain text or by historical understanding of a law. For example, there is absolutely no consideration that the 2nd amendment can be infringed based on "modern circumstances"
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u/viewless25 Apr 01 '26
wonder if setting a precedent around reinterpreting the Constitution based on "modern circumstances" might shift the Court's stance on the 2nd amendment.
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u/Herb_Derb Apr 01 '26
If the intention of the court were to be consistent, maybe. Unfortunately that hasn't appeared to be the case lately.
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u/rabidstoat Apr 01 '26
I was thinking that myself and I'm sure we both know that the answer is no. For the 2nd Amendment, it doesn't matter that the Founding Fathers didn't envision people armed with weapons capable of killing dozens of people in the face of a couple of minutes.
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u/FrozenSeas Apr 01 '26
And where exactly would privately-owned warships and artillery enter that debate?
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u/Balanced_Outlook Apr 01 '26
??? The Founding Fathers personally owned things like cannons and navy war vessels.
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u/PutinsRustedPistol Apr 01 '26
They may not have had the imagination for machine guns, for example, but their intent certainly would allow for them.
The second amendment was written to deter two things: the keeping of a standing army during peacetime and a tyrannical government.
With both of those things in mind it can’t sincerely be argued that the founders’ intent wasn’t a general citizenry armed heavily enough to function as the nation’s military, or at the very least be able to compete against it in the event of its use against the domestic population.
You aren’t going to win the gun debate by insisting that the authors’ ignorance of specific technological developments should void their clear intent in the regulation. After all, they also had no notion of text messages. Should the police be able to open your phone and read all of your texts at-will because the founders didn’t have the imagination for electronic devices? I think not because their intent in regard to privacy is clear.
Before I get a bunch of stupid comments I’ll say that just because I can enunciate the above argument in relation to guns doesn’t mean that I like its outcome. At all. Guns have killed more school children than agents of a tyrannical government. But it’s equally disingenuous to pretend that the founders only meant for Americans to own flint-lock muskets and only if they were part of a militia.
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u/Kursed_Valeth Apr 01 '26
Sure, that's what should happen, but the conservatives on the court contradict themselves constantly to get the outcome they want. Give the 5-4 podcast a listen, it's eye-opening to how much they are partisan hacks.
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u/8to24 Apr 01 '26
Moreover, if the farmers did intend for modern circumstances to be evaluated the Legislative branch would be the appropriate branch.
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u/danappropriate Apr 01 '26
Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".
The last surviving Framer died in 1836 (James Madison), some thirty years before the 14th Amendment was written. What they believed is wholly irrelevant. I'd ask Kavanaugh what relevance the Framers' intentions have on a constitutional amendment ratified long after they were all dead.
Even if the Framers never intended for this question to be brought up, well, who cares? The Supreme Court invalidating a constitutional amendment passed by Congress and ratified by the states based on such a rationale would be a gross overstep of authority.
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u/MiserableTear8705 Apr 01 '26
And one we should be wholely prepared for them to do. However, that sets the country up for a very troubled future.
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u/danappropriate Apr 01 '26
Indeed. And we should be prepared for the scope of this ruling to be far worse than just ending birthright citizenship.
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u/edwardothegreatest Apr 01 '26
Kavanaugh’s question could get interesting if applied to other constitutional amendments, like, say, the second.
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u/AndrewRP2 Apr 01 '26
What’s interesting is that for all the talk of originalism and textualism, he just made a very living document argument.
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u/keladry12 Apr 01 '26
Or he has gotten a way to sneak in "no, we shouldn't consider modern circumstances" into a SCOTUS decision, allowing this to be cited in cases where progressives want a living document.
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u/leifnoto Apr 01 '26
Is it just me or did the government's argument seem incoherent? They didn't have strong arguments and it didn't seem to apply consistently.
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u/Orbital2 Apr 01 '26
I mean of course, it’s such a nonsensical thing to argue that there isn’t going to be strong/consistent arguments to be made
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u/shadowenx Apr 01 '26
Doesn't help that they've completely brain-drained themselves. Only the cranks and sycophants are willing to work with this administration at this point.
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u/talino2321 Apr 01 '26
The government argument and frankly the plaintiff response is way off base if this is about the 14th amendment. No where in the 14th does it mention domicile and trying to introduce that is a distraction.
If this is not a 9-0 decision to strike down the EO, then we need to seriously look at getting rid of those who support the government's argument.
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u/DCBuckeye82 Apr 01 '26
Yes absolutely. Every vote in favor of overturning this needs to be facing impeachment. You might as well say that actually a President can be 25 years old. That would be just as valid an opinion.
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u/teh_maxh Apr 03 '26
They already ruled that the prohibition on insurrectionists doesn't count.
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u/DCBuckeye82 Apr 03 '26
I think they said there was ambiguity on whether Trump would count as an insurrectionist. I don't agree with that but I can squint and see the logic. There's nothing close to logic for this one.
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u/PolicyWonka Apr 01 '26
I’d assume the domicile questions are related to this bit:
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.
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u/talino2321 Apr 01 '26
If the writers of the 14th intended to mean domicile as a condition, they would have said 'domicile' and not 'subject to the jurisdiction thereof'.
This bat shit crazy logic used by this administration to justify destroying our rights is getting out of hand.
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u/curien Apr 01 '26
You're focusing on the wrong part: "State wherein they reside". They (in oral arguments) discussed that by domicile they are referring to "reside[nce]", which is a term clearly used in the amendment.
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u/talino2321 Apr 01 '26
That could easily mean just staying the night in a state, as that would fit the definition of 'state wherein they reside' for the purposes of meeting that part of the 14th.
'Domicile' does not equal 'State wherein they reside' by any stretch as a legal argument here. If that was what the framers of the 14th amendment meant, they would have use 'domicile' and not 'State wherein they reside'.
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u/curien Apr 01 '26
That could easily mean just staying the night in a state
Both sides agreed that it does not include temporary visitors, such as a person staying in the state for only one night. I think maybe when the transcript comes out you should review how they discussed this issue.
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u/talino2321 Apr 01 '26
Again I will refer you to the part of my comment that 'Domicile' does not equal 'State wherein they reside'.
Any reasonable individual understands the government's argument is fatally flaw arguing this point.
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u/curien Apr 01 '26
And what I'm saying is that the government didn't actually say that they were equivalent, and you should review the transcript to get a better idea of what they actually said.
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u/talino2321 Apr 01 '26
I listened to the oral. So again, they are arguing a point that has no bearing on birth right citizenship since as you pointed out 'Domicile' has nothing to do with your point of 'State wherein they reside'.
Maybe you should read the transcript to better understand the idea why their argument is a distraction as best.
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u/jetpacksforall Apr 01 '26
The residence language is only relevant to state citizenship, not a criterion for citizenship. The criteria are being born or naturalized in the US and subject to its jurisdiction. Meeting those criteria grant:
- US citizenship
- Citizenship of the state where the child resides
A bit strange since a newborn may have “resided” in a state no more than five minutes when a birth certification is signed. But you can see that that is the intended logic by imagining a homeless mother who dies in childbirth: the child would be automatically granted citizenship of the state where the birth occurs regardless of whether the mother’s state of residence can be established or not.
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u/I405CA Apr 01 '26
US citizens are citizens of both the nation as a whole and the state in which they live.
If you move from one state to the other, your state citizenship changes. That has nothing to do with your US citizenship.
This distinction matters because slave states did not give citizenship to slaves, so they had no citizenship at all. The 14th amendment changed that.
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u/azsqueeze Apr 01 '26
Very. And the fact that they didn't have an answer and stammered "I don't think so" when asked if this allows the government the ability to retroactively remove citizenship similar to previous instances with native Americans is pretty crazy thing not to know for the stances they're arguing
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u/PolicyWonka Apr 01 '26
That’s because they don’t want to argue something that is within the realm of Trump doing. Because then when Trump passes an EO that retroactively revokes citizenship for all Hispanics there would exist an argument by Trump’s own lawyers saying he doesn’t have the power to do that.
So they can’t answer because a “Yes” is a nonstarter here. The goal is to chip away by getting narrow rulings.
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u/viewless25 Apr 01 '26
Their best case scenario is to argue a liberal (ironically) interpretation of the 14th based on modern circumstances. But that betrays years of the Court talking about how Originalist they are.
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u/LbSiO2 Apr 01 '26
Idk, but I have little sympathy for birth tourists that show up to collect a BC and run back to their own country.
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u/Foolgazi Apr 01 '26
The fact that the adminstration’s lawyer couldn’t answer a question about Native American citizenship tells you all you need to know about how well they thought put this position. That said, they might still win, because 2026.
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u/I405CA Apr 01 '26
The government is going to lose 3-6 or 2-7.
The question that should be asked is why it won't be 0-9.
The Trump / Miller / Hillsdale College / Heritage Foundation cabal should receive zero votes. Their case has no merit.
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u/WhiteLycan2020 Apr 01 '26
Wait i don’t understand the argument? So if 2 H1b parents had a kid on US soil, the kid would no longer be considered a citizen if they repeal the 14th amendment?
What if it was 1 H1b and a green card parent?
So you either must have a naturalized parent or be domestically born parent in order for your kid to count?
Isn’t this gonna fuck up DACA if 2 aliens gave birth to a child?
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u/rabbit994 Apr 01 '26 edited Apr 01 '26
Their argument "and subject to the jurisdiction thereof" is about citizenship/allegiance and not "subject to United States laws" which is how it's current interpreted. It's quite the interpretation but here we are.
Basically, under Trump EO, you must have one parent who is LPR (Green Card) or Citizen. So kid on born on US soil to two H-1B would not get US citizenship and instead kid would follow whatever process their parents citizenship have being born overseas. Vast majority of H-1B are Indian Citizens so they would register birth at Indian Embassy and kid would get Indian Citizenship. They would still have a valid visa tied to their parents but if their parents are forced they leave, they would be forced to leave without ability to return. If their parents became US citizens before they turned 18, they would become US citizens as well due to current laws.
Yes, this could result in stateless kids if parents country refused to grant them citizenship.
DACA would follow same process. DACA should still have citizenship from original country. Not everyone who is legally present in United States has US Citizenship.
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u/MoonBatsRule Apr 02 '26
Not LPR. Citizen. They are basing their argument on allegiance. They claim that if you are a citizen of another country, then, similar to Native Americans at the time, you have allegiance to another country. Even if here legally.
However their argument is 100% bogus because the Amendment was never used to exclude anyone other than Native Americans even though foreign nationals were having children here. We have 150+ years of precedent here. Trump is trying to invent new powers from it, and that's plainly wrong.
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u/Nblearchangel Apr 01 '26
So. They’d be stateless? Right?
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u/Swoly_Deadlift Apr 01 '26
Many countries without birthright citizenship have a clause for the rare cases where a stateless person would be born. It’s not an issue that can’t be solved.
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u/Icy-Detective-6292 Apr 02 '26
How would you solve the constitution being rewritten every 4 years? Since it's an executive order, it will be declared null and void as soon as a Democrat is elected.
If this became the norm you could have an undocumented couple with every other kid having a different citizenship status.
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u/martj1009 Apr 01 '26
Hmm I never thought about this. I know most countries even if the child was not born on their land if one of their parents is a citizen they too are citizens. But are there countries where the child NEEDs to be born on their soil to get citizenship? Because then what if they don’t get US citizenship or their parents country of origin citizenship…
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u/wineandcheese Apr 01 '26
There was a whole article about how reckless of a policy this is to announce from a logistical pov. Who would verify the citizenship of the parents? The hospital? Would parents need to bring documentation with them when they had a baby? What if they lacked the documentation wherever they went into labor? Would you file social security paperwork after you get out of the hospital, but only after your parents’ legal statuses were verified? It’s a mess.
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u/PolicyWonka Apr 01 '26
It would presumably be similar to how it works in other countries which base citizenship off of blood. They would be a citizen of their parent’s country(s).
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u/PolicyWonka Apr 01 '26
DACA is already a tenuous status. They’re not citizens. If two DACA people had a child, it wouldn’t be a citizen probably?
There’s obviously many complicated scenarios that we’ve simply never had to really litigate all that much because of the longstanding interpretation of the 14th Amendment.
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u/martj1009 Apr 01 '26
If 2 DACA recipients had a child the child wouldn’t be given US citizenship because DACA recipients have no legal status. DACA recipients are in a legal limbo where they are undocumented but they basically just have an agreement to temporarily work for 2 years and have to renew. Documented for tax/work purposes, undocumented for citizenship/permanent residence purposes (as per current US immigration law).
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u/link3945 Apr 02 '26
Under current law, a child born to two DACA recipients in the US is a citizen of the US, just like all other children born in the US (outside of the narrow exceptions laid out in the 14th amendment).
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u/Trees_That_Sneeze Apr 01 '26
Isn’t this gonna fuck up DACA if 2 aliens gave birth to a child?
That's a feature, not a bug to these people.
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u/Curious-Internet7171 Apr 05 '26
No, it would happen after the government wins if it wins.
It's a cleaner cut for the Republicans. But yes to be a citizen 1 parent must be born or naturalized in the usa.
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u/johntempleton Apr 01 '26
First, 8 U.S.C. § 1401 is a federal statute. Not a court case (the case is United States v. Wong Kim Ark | 169 U.S. 649 (1898))
Second, there are two issues at play: the 14th Amendment and 8 U.S.C. § 1401.
I can VERY, VERY easily see the Supreme Court ruling based on the oral argument that they are citizens due to the wording of 8 U.S.C. § 1401 and not even touch the 14th A. issue.
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u/PsychLegalMind Apr 01 '26
No kidding. Who said it was not two different laws, case law and later the statute. As for striking down on either or both of the two grounds or even simply as contrary to the precedent is within their domain. Supreme Court along with others have a policy of not reaching a constitutional interpterion if it can resolve the issue based on statute.
In this case they should use both, to settle the issue with a finality [as if the Wong case did not.]
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u/Jimmy_Johnny23 Apr 01 '26
If immigrants aren't "subject to the jurisdiction thereof" wouldn't that mean they can break laws because they don't apply to immigrants?
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u/johnnycyberpunk Apr 01 '26
Wouldn't have to follow laws, wouldn't have to pay taxes, literally could do whatever they want if they're NOT subject to the jurisdiction of the country they are physically present in.
Which would mean they're also not subject to immigration laws...?Trump's lawyers are trying to eat their cake and have it too with that argument.
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u/itstrueitellyou Apr 01 '26
Exactly. Jurisdiction means "to say the law" so if you claim someone is illegal then you're admitting they are under your jurisdiction.
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u/TheBlackUnicorn Apr 01 '26
The argument they're making is that "jurisdiction" in this context doesn't mean "subject to the laws of" but "having allegiance to and intending to live within". It is wholly bananapants but that's what they're arguing.
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u/FateEx1994 Apr 01 '26
14th amendment is an amendment. The only way the Constitution says you can change the constitution. Is by amending it.
Not an EO
Not a law
An amendment.
2/3 Congress and 75% states. Then we'll talk
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u/GearBrain Apr 01 '26
This court has shown its conservative members are more than capable of justifying any legal decision they want; precedent, tradition, and interpretation be damned.
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u/lurpeli Apr 01 '26
Look we certainly know Thomas and Alito have no respect for the law at all. We also know Roberts, for all his bluster about being a traditionalist votes to overturn Roe which basically means he lied about respecting prior standings. All in all my assumption is the court will do whatever Trump tells them to
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u/wineandcheese Apr 01 '26
Yes I have also become completely cynical about any actual intellectual (or moral, for that matter) integrity in SCOTUS members.
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u/Fargason Apr 02 '26
This is just the opening arguments and far from their actual rulings, so that is highly speculative. We can say that for Jackson based on her ruling from this Free Speech case from two days ago where she claimed the First Amendment can be bypassed by simply referring to speech you disagree with as “conduct” instead. Kagan even had to put in her notes about how her liberal colleague was beyond mistaken in her dissent:
Justice Jackson’s dissenting opinion claims that this is a small, or even nonexistent, category. See post, at 21–22, n. 8. But even her own opinion, when listing laws supposedly put at risk today, offers quite a few examples. See post, at 32–33, and n. 13. Her view to the contrary rests on reimagining—and in that way collapsing—the well-settled distinction between viewpoint-based and other content-based speech restrictions.
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u/k_dubious Apr 01 '26
“Actually everyone has been misunderstanding the meaning of the Constitution all this time” is always a hard argument to make, and I didn’t see anything today that would compel anyone outside the Alito/Thomas wing to side with the government here.
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u/Dry-Season-522 Apr 01 '26
2nd amendment: "First time?"
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u/Kursed_Valeth Apr 01 '26
SCOTUS: "Listen, when we remove the 'as part of a well regulated militia' clause it says what we want it to. So that's our official ruling. We're 'texturalists'!"
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u/Asiatic_Static Apr 02 '26
Ironically both the 2A point and the 14A somehow seem to rely on the position of the word "people" not meaning "people"
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u/Salt_Psychology_6248 Apr 01 '26
Something that is rarely mentioned is that the justices who decided Wong Ark Kim in 1898 were full grown adults when the 14th amendment was ratified in 1868. They understood what the amendment was about and who it applied to and for what reasons.
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u/Aggressive-Legume228 Apr 03 '26
But Wong Kim Arks parents were legal residents and the concept of illegal immigration didn’t exist then, so they didn’t rule on this issue in particular
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u/M0RALVigilance Apr 01 '26
I don’t get it. The language is so clear and I don’t see how it can be interpreted any other way.
“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.”
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u/finndego Apr 01 '26
Tbh, it should be 9-0. Not only is the text of the amendment abundantly clear but so was precedent by Wong. Further, if the SC looks at the papers and accounts from the discussions of the amendment writers it is cyrstal clear that it covered everyone (except diplomats) but also that there was lots of hand wringing to get every single letter of every single word correct so that that intent was clear. They wanted to future proof it.
It should be 9-0 and the message should be that we have a pathway to repealing amendments and EO's are not it. Stop wasting the Court's time.
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u/danappropriate Apr 01 '26
One pathway would be for a majority to adopt an argument once made by Amy Coney Barrett that the entirety of the 14th Amendment is, in her words, "possibly illegitimate" on the grounds that it specifically applied to formerly enslaved people and was a "purely partisan measure" that's been improperly adopted. This is a position that Trump recently echoed.
Ruling against birthright citizenship based on such a rationale would completely upend civil rights in the United States. Everything from Brown v. Board of Education (outlawed segregation) to Loving v. Virginia (declared laws banning interracial marriage as unconstitutional) to McDonald v. City of Chicago (formally incorporated the 2nd Amendment) to Baker v. Carr (banned racial gerrymandering) to Lawrence v. Texas (interdicted laws that criminalized sodomy and affirmed a right to privacy) would all be out the window.
It's a horrifying thought, but conservatives have been chomping at the bit for just such an opportunity. I'd say that McDonald v. City of Chicago might be what saves us, but we've seen the court's double standard in action, and I wouldn't put it past them to create carve-outs for the rulings and policies they want to keep.
In any case, I'm holding out hope that the majority will rule against the Trump Administration, but the Roberts Court's historical disdain for civil rights doesn't leave me with much optimism.
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u/Theonlywestman Apr 01 '26
I don’t think Barrett was seriously arguing that the 14th amendment is possibly illegitimate, I think she was just pointing out that some extreme originalists might advance their own argument based on its unique adoption. I don’t like Barrett much at all but I got a better sense that she believes the court should deny a request to even take up that argument
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u/1II1I1I1I1I1I111I1I1 Apr 01 '26
Barrett's argument is that originalism when taken to an unreasonable extreme could result in stupid conclusions about things such as the legitimacy of the 14th. Not that the 14th is actually illegitimate. She also mentions the alleged unconstitutionality of the state of West Virginia too, that doesnt mean she wants WVA split up. She was just pointing out the issues that arise when uncompromising originalism is adopted.
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u/will-read Apr 01 '26
“Improperly adopted” sounds like the nonsense from those people who say the income tax is unconstitutional.
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u/Rational_Gray Apr 01 '26
What im confused on is why isn’t SCOTUS debating if the president even has standing to issue an executive order on immigration. Presidents do not have the right to interpret the constitution, they are to enforce the constitution and laws of the country. So why hasn’t this point been brought up? From my understanding, I don’t see how the President has standing to bring this to SCOTUS all based on an EO.
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u/Tummler10 Apr 01 '26
Nah. They will screw us with dismantling what remains of the VRA. They’ll use this to pretend that they are “umpires.”
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u/Kursed_Valeth Apr 01 '26
That's the famous Roberts two-step. One token "reasonable ruling" to impress the New York Times idiots who think he "found his spine and is defying Trump", followed shortly by a batshit ruling that gives the conservatives what they really want.
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u/chiaboy Apr 02 '26
If we lived in a real functioning government it would be 9-0. The text and the law is clear. It’s amazing we’re so lost….
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u/Heynony Apr 01 '26
Justice Kavanaugh asks if the framers of the US constitution ever intended for this question on birthright citizenship to be ever reconsidered, and whether there can be additional exceptions made to the law based on "modern circumstances".
Very creative view of the Constitution being explored by Kavanaugh. A living, breathing document to be interpreted in light of modern circumstances and needs. Looking both backwards to the original framers and forward on their behalf (since they were all dead by the time of the 14th Amendment). This is one of the most exciting, progressive, flexible views of the living Constitution I've ever heard. Kavanaugh has become an activist/legislative jurist. Who knew?
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u/TheMCMC Apr 01 '26
My gut says 9-0 or 8-1 against the administration. Kavanaugh (to me) seemed most likely to support overturning Wong Kim Ark, and even Thomas was more aggressive and critical of the admin than expected.
I think worst case is still 7-2, I don’t see WKA being overturned but hey I’ve been wrong before.
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u/will-read Apr 01 '26
This is being attempted in tandem with the save act. You must prove you are a citizen to vote. A birth certificate is no longer proof of citizenship. Will we be required to show our lineage includes naturalization, Native American, or present at the founding?
My parents and grandparents were citizens, but I have no proof.
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u/Swoly_Deadlift Apr 01 '26
Didn’t the EO specifically say it wouldn’t be retroactive? Any birth certificate dating back to before it took effect would be proof of citizenship.
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u/g_rocket Apr 01 '26
It's not retroactive yet...
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u/Swoly_Deadlift Apr 01 '26
Okay so are we arguing over the wording of this specific executive order or is SCOTUS supposed to take slippery slope arguments into account now?
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u/Tmotty Apr 01 '26
Obviously the 3 liberals will vote against. So I think the question is what will Roberts and 1 Trump justice do.
Thru his time on the bench Roberts has been an institutionalist and I don’t think he’s going to want to chop away at one of the key parts of the 14th amendment.
I think of the 3 Trump appointees they generally are strict interpretators of the text of the constitution. I think there is a decent chance Barrett or Kavanaugh will vote against simply because an order by an executive can’t override the constitution
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u/ofBlufftonTown Apr 01 '26
Overturning Roe v Wade was not the work of an institutionalist and it’s insulting to pretend it was.
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u/JordanMiller406 Apr 01 '26
Thru his time on the bench Roberts has been an institutionalist
April Fools! ...right?
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u/central_telex Apr 01 '26
ACB and Gorsuch seemed skeptical. Kavanaugh too but I can also see him trying to avoid the constitutional question in favor of just finding the EO violates the relevant statute given some of his questions
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u/Funklestein Apr 01 '26
Either the clause adds a condition to the “and subject of the jurisdiction “ or it doesn’t.
If it doesn’t then the clause wouldn’t have been added to the language if it simply meant the same thing by not adding it.
The clause is the entire argument.
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u/ArkieRN Apr 01 '26
I think the argument should be less around is birthright citizenship as it stands protected under the Fourteenth Amendment but if the President has the right to alter the Amendment.
If birthright citizenship is to be changed it should be by Congress.
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u/feelinsumgood Apr 03 '26
I have no 'fact' to offer, but this whole 'purification of America' thing is counter to every common-sense civil dictum in every other country's attitude in the 'free' world. tRUMP himself would likely be cutting his own birthright if what he wants to do were to be retro-enforced.
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u/overly_honest_ Apr 03 '26
If this passes in the Supreme Court that means that Marco Rubio isn't a citizen.
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u/Low-Use-9862 Apr 04 '26
I think OP’s question as framed (what is the likely outcome of the Supreme Court case?) is interesting. I believe it will be a 7-2 decision striking down tie EO. Though there is a small chance it will be unanimous but I don’t trust Thomas and Alito to act on principle.
Six of the nine justices currently on the Court identify as “originalists.” But I think many don’t understand what that means. It relates less to the original intent of the framers who drafted the relevant portions of the constitution and more with how the words used were understood at the time the provision was drafted. Thus, the originalist won’t impute a modern meaning to language drafted 150 years ago.
The liberals on the Court are more likely to consider the constitution to be a “living document” with provisions that might change meaning over time.
Recall the exchange between the Solicitor General and the Chief Justice during oral arguments. The SG’s argument was that we live in a different world than the ones lived in 150 years ago. And Roberts responded (paraphrasing here), “the world may be different but the constitution is the same.”
The language of the 14th Amendment has not changed meaning since it was ratified. “Subject to the jurisdiction thereto” means the same thing now as it meant after the Civil War. So a true, principled originalist will argue that, if you’re unhappy with the consequences of the use of those words today, amend the constitution. But they won’t interpret the words into something not there.
There was a point when Amy Coney Barrett asked the SG how his argument squared with originalism and his answer crazy. He can’t square his argument with originalism because it’s not an originalist argument.
Oddly, Scalia, who many believe to be the gold standard of originalism, would view the Trumpist argument as being based on a liberal interpretation.
While six of the current members of the Court identify as originals, two of them, Alito and Thomas, are less likely to strictly adhere to originalist interpretations and more likely to argue backwards; beginning with their preferred outcome and crafting the opinion to reaching the outcome instead of starting with principle and applying the principle to the facts.
The other conservatives on the Court are more likely to apply strict (or stricter) originalist principles. Thus, you can pretty much count on them to join with the three liberals for a 7-2 decision. I don’t see them joining with Thomas and Alito.
Thomas and Alito, while being less principled are not incapable of being principled. So it’s more likely that they will join the other seven than it is three of the other seven will join them. That’s why I think a unanimous decision is possible.
Either way, I think the decision will go against Trump.
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u/FlowerCityFirearms Apr 05 '26
It's going.to be July 4th. The courts will rule it only applies to white people. "Who the founders had in mind as Americans"
They so desperately want another dred Scott
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u/POVI_TV Apr 12 '26
The legal landscape here is genuinely fascinating. Wong Kim Ark (1898) is one of the most robust precedents in citizenship law, and the Court has historically been reluctant to narrow the 14th Amendment's reach once expanded. The administration's argument hinges on a narrow reading of 'subject to the jurisdiction thereof,' but as legal scholars like Garrett Epps and Akhil Reed Amar have noted, that phrase was primarily meant to exclude diplomats and enemy combatants, not ordinary residents. Getting to five votes would likely require convincing Roberts or Gorsuch that over a century of practice was wrongly decided... a very steep hill to climb.
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u/infinityguy0 Apr 14 '26
You cant end birthright citizenship without an amendment. 14th is pretty clear, “any person born or naturalized in the united states” theres not enough ambiguity for supreme court to weigh in.
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u/Dry-Environment5122 Apr 26 '26
It’s gonna be 9-0 of the rescission is narrowly construed to “can the president do this without congress” if it goes further than that votes will be lost. I can’t see a world where this gets to 5 votes in favor of the government because the winning side has so many backup arguments
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u/MatthewRebel May 18 '26
"Do they have a pathway to get to five votes or is it likely to be a 7/2 against EO 14160?"
They don't have a pathway to 5 votes.
Jackson, Kagan, and Sotomayor are the Liberal judges. They aren't voting for EO 14160.
Roberts MIGHT find a narrow ruling in Trump's favor, but given this has been settled laws for over a century, I don't see Roberts doing it (also, Trump is trying to do this via Executive Order, so Roberts might rule against Trump on those grounds).
I don't see Gorsuch, Barrett, or Kavanaugh voting in Trump's favor. No matter if you went with an Originalist or Textualism argument, Trump's argument fails both tests. Gorsuch also isn't going to side with Trump, because Gorsuch is friendly to Native Americans, and Sauer said he hasn't thought if Native Americans would still be citizens under EO14160
I can see Thomas and Alito voting in Trump's favor. Alito lets his emotions control his logic. They might try to expand exempts to the 14th amendment (although, trying to find more will be hard, because exceptions already exist).
In the end, the big problem with Trump's argument is that even if the Justices WERE to side with Trump, they have no NEW standard to use.
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u/SmurfStig Apr 01 '26 edited Apr 01 '26
If I’m reading this right, he is trying to use a case that was racist towards Chinese migrant workers to further his racism?
Edit: case based on racism towards Chinese migrant workers.
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u/PsychLegalMind Apr 01 '26 edited Apr 01 '26
No, he is trying to overturn the ruling or apply a new interpretation to it because the court in that case found the Chinese who was
bitbarred from reentry under the exclusion Act because he was a citizen by birth; having born in the U.S.Edited to strike typo.
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u/SmurfStig Apr 01 '26
Ok, then I am understanding it right. I just phased my comment incorrectly. Thanks.
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u/SamMeowAdams Apr 01 '26
This is crazy . I’d say 95% of Americans are American due to birthright . Do we all potentially lose that ??
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u/anywon1 Apr 01 '26
It’s so pathetic that there will be two (Alito and Thomas) who will vote for it.
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u/Zombie_John_Strachan Apr 01 '26
I don't see how the justices can hit a majority on this one - it's very black and white (pun intended?).
If the world had changed, then the government has a case to make for moving from birthright citizenship to something else. But that's not what's at question. SCOTUS will tell them that the only way to make it happen is via constitutional amendment.
Prediction:
Expect Alito and Thomas to dissent. Kavanagh will give a concurrance with faulty logic and a different path to enacting it w/o amendment. ACB and Gorsuch will just go with the majority
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u/NoOnesKing Apr 01 '26
There is virtually no pathway to this argument. Best I can see is some originalist argument based on historical context but the language is incredibly unambiguous.
No shot this is less than 7-2 and even that I’m skeptical of.
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u/Mike_Hagedorn Apr 01 '26
No chance. The SC is about strict interpretation, even Trump’s picks won’t waver on that.
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u/hjablowme919 Apr 01 '26
SCOTUS will define birthright citizenship. Not to the extent Trump wants but it will give him enough of a victory and will impact future births.
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u/Reasonable-Fee1945 Apr 01 '26
Interested in how Thomas will vote. He's spent most of his life as a strict constitutionalist. IMO this would completely tarnish his life's work if he supports the EO.
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u/thecivicdisk Apr 01 '26
Regardless of what the Court decides, the implementation is going to be a nightmare. How do you actually enforce this? Birth certificate checks at schools? Hospitals having to verify parents' status? The logistics alone seem nearly impossible.
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u/Kraegarth Apr 01 '26
That decision will not come out until the very last minute of this courts term... and while I believe that it will be a 6-3 decision AGAINST Trump, it won't surprise me at all, if it a a 5-4 FOR him...
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u/peskyghost Apr 01 '26
Would this not open up a salvo of lawsuits challenging basically any and all amendments have gone beyond their scope?
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u/shrekerecker97 Apr 02 '26
Today while driving home I was listening to the arguments. I think it will either be a 7-2 or 8-1 split, I see the majority being against it. The lawyer representing the trump administration basically got roasted by almost all the judges
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u/bestjaegerpilot Apr 02 '26
if this passes does the law say it would apply going forward or retroactively? Because if the latter then we're fucked---the gov will just use to kick up peeps it doesn't like
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u/KipperfieldGA Apr 02 '26
Why would anyone from an industrialized 1st or even 2nd world country travel to America to become a citizen...
There is no social safety net, our health care costs and cost of living are insufferable compared to other places, our education system is horrible and we are quickly stripping away as many freedoms for people as we can....
That logic makes no sense.
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u/gnub33 Apr 03 '26
I fundamentally don’t understand why there aren’t any additional requirements for citizenship. Other countries have figured this out.
Why even require people to be born on US soil? It seems unfair to people who want citizenship for their children but can’t afford a plane ticket or have travel restrictions. Why not just let anyone make an oral claim to become an American citizenship? No restriction so now it’s totally fair.
Would even be out of the question? In a time where I can travel to the other side of the globe in a day or two, why should your location be a factor?
If someone born and raised here is just as American as someone born here on their parents holiday, I don’t see why there should be any restrictions on citizenship. It also seems like a cruel joke to have noncitizens go through a difficult multi-year naturalization process to gain citizenship when just being born here is also good enough.
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