What’s At Stake
What is the case about?
The Supreme Court has agreed to hear President Trump’s challenge to birthright citizenship. The Court will hear oral arguments next year in the challenge to the president’s executive order seeking to end birthright citizenship, which guarantees citizenship to nearly everyone born in the United States. Under the executive order (which is stayed and hasn’t gone into effect), individuals born in the U.S. would not be automatically entitled to citizenship if their parents are in the country illegally or temporarily. The executive order is being challenged, arguing it conflicts with both the Constitution and case law.
Who is affected and how?
The decision could directly affect children born on U.S. soil to parents here illegally or temporarily, and their families, while also carrying broad implications for the legal system, schools, healthcare institutions, and overall immigration policy.
Why does it matter?
Birthright citizenship was added to the Constitution in 1868 as part of the 14th Amendment. Adopted in the aftermath of the Civil War, it was intended to resolve the question of citizenship for formerly enslaved people and to overrule the Supreme Court’s 1857 decision in Dred Scott v. Sandford, which held that black persons, whether enslaved or free, could not be U.S. citizens. The citizenship clause provides that “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.” The administration argues that this clause was adopted to confer citizenship on newly freed slaves and their children, not on children born to aliens in the U.S. temporarily or illegally.
Our Take
An originalist interpretation of the 14th Amendment’s Citizenship Clause does not guarantee citizenship to children of illegal or temporary status parents. Recognizing the difficulty of this case based on over a hundred years of precedent, we nonetheless remain confident that the case against birthright citizenship has a plausible legal footing and the executive order should be upheld.
