INTRODUCTION
The debate over birthright citizenship has reemerged as one of the most consequential constitutional and policy questions in contemporary American politics. On May 15, 2025, the U.S. Supreme Court convened a special oral argument session to consider whether the administration of President Donald J. Trump may implement an executive order redefining the scope of the Fourteenth Amendment’s Citizenship Clause—specifically by excluding from automatic U.S. citizenship children born on American soil to parents “unlawfully present” or “lawful but temporary” in the country. Traditionally, birthright citizenship, enshrined in the plain language of Section 1 of the Fourteenth Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”), has been interpreted broadly since the seminal Supreme Court decision in United States v. Wong Kim Ark (1898).
This issue capitalizes on deep legal and societal tensions: at stake is not only the constitutional guarantee of citizenship for nearly all children born in the United States but also the balance of executive authority, the role of lower courts in checking administrative actions, and the ideological divide over immigration policy. As Justice Elena Kagan observed during oral argument, “Denying birthright citizenship to children born in the United States creates two classes of newborns”. This structural divide raises crucial questions about equal protection, due process, and the practical administration of citizenship determinations at the state and federal levels.
To frame these tensions, constitutional scholar Erwin Chemerinsky of UC Berkeley School of Law emphasizes, “The Citizenship Clause was adopted precisely to ensure that the children of former slaves—and by extension, virtually all children born in the U.S.—would be full members of the political community”. From the perspective of civil rights advocates, any executive attempt to curtail this guarantee threatens to unravel a century-plus of legal precedent and undermine the principle of jus soli (right of the soil) that defines American nationality. Conversely, proponents argue that the ambiguous phrase “subject to the jurisdiction thereof” affords room for executive discretion, particularly regarding parents not fully subject to American sovereignty, such as tourists or unauthorized immigrants—even though the Supreme Court in Wong Kim Ark construed the clause narrowly to grant birthright citizenship to virtually all children born here.
This article advances the thesis that the Supreme Court’s treatment of Trump’s executive order is less about rewriting substantive constitutional doctrine and more about the scope of nationwide injunctions and emergency procedural relief (“shadow docket” review). Yet, beneath the procedural wrangling lies a profound choice: whether to uphold a nearly unbroken line of citizenship jurisprudence or to permit the presidency to reshape a foundational constitutional guarantee via unilateral executive action.
LEGAL AND HISTORICAL BACKGROUND
Constitutional Text and Early Interpretations
The Fourteenth Amendment (1868), Section 1, establishes that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens” (U.S. Const. amend. XIV, § 1). The phrase “subject to the jurisdiction thereof” was originally intended to exclude only children of foreign diplomats or invading armies. The legislative debates—particularly those by Representative John Bingham—make clear that Congress sought to extend citizenship to former slaves and their descendants without ambiguity.
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Court held that a child born in San Francisco in 1873 to Chinese parents—who were themselves subjects of the Emperor of China—was a U.S. citizen under the Citizenship Clause. Chief Justice Melville Fuller’s majority opinion emphasized the “plain meaning” of “born . . . in the United States”—reinforcing jus soli. Fuller noted that only “two classes of persons” were clearly excluded: children of ambassadors and foreign sovereigns, and those “owing allegiance to some foreign power”.
Statutory and Executive Efforts
Over the twentieth century, birthright citizenship remained largely unchallenged until a series of executive and legislative proposals emerged in the 1990s, 2000s, and again in 2018 when President Trump first suggested ending the practice via executive order. No statute has ever explicitly authorized narrowing the Fourteenth Amendment; rather, proponents of restriction have pointed to 8 U.S.C. § 1401(a), which defines who is a “national and citizen” at birth, and to the Immigration and Nationality Act (INA). However, neither statute overrides the constitutional text.
In January 2025, shortly after his second inauguration, President Trump issued Executive Order 2025-15, directing the Department of Homeland Security and the State Department to develop rules excluding certain children born to noncitizen parents from automatic citizenship determinations. Three federal district courts—in California, New York, and Maryland—issued nationwide injunctions blocking the order’s enforcement. These injunctions fueled the administration’s request to the Supreme Court for emergency relief on the “shadow docket,” consolidating the three cases under docket number 25A123 and scheduling expedited oral argument for May 15, 2025.
Precedent on Nationwide Injunctions
Though not directly about the citizenship question, the procedural mechanism at issue—nationwide injunctions—has become a flashpoint. Traditionally, district courts issue injunctions applicable only within their jurisdiction. In the past decade, however, judges have used “universal” or “nationwide” injunctions to block federal policies everywhere, prompting conservative justices like Alito and Kavanaugh to criticize the practice as “chaos-inducing” and beyond the judiciary’s proper scope. The administration argues that such injunctions violate principles of equity and federalism by allowing a single district judge to produce de facto national policy.
CASE STATUS AND LEGAL PROCEEDINGS
On January 20, 2025, three independent suits were filed: Doe v. Mayorkas in the Northern District of California; United States v. County of Cook in the Southern District of New York; and Gomez v. Garland in the District of Maryland. Plaintiffs included immigrant families, civil rights organizations (ACLU, National Immigration Law Center), and a coalition of 22 states led by Democratic attorneys general. Each court granted a nationwide preliminary injunction, finding grave constitutional concerns and the likelihood of irreparable harm to children denied citizenship.
Recognizing the injunctions’ nationwide effect, the Trump administration filed an emergency application to the Supreme Court on March 13, invoking the All Writs Act and arguing that injunctions should be limited to plaintiffs’ jurisdictions. Chief Justice Roberts initially referred the application to the full Court, which on April 17 deferred decision pending oral argument, setting a May 15 hearing on whether to stay the injunctions or remand for narrower relief.
At oral argument, Solicitor General Adam K. Sauer defended the administration’s position: “There are circumstances when the government is not bound by a single circuit precedent if it conflicts with the statute’s text,” he told the Justices, but he conceded uncertainty regarding how hospitals or states would process newborns without citizenship papers. Justice Barrett pressed Sauer: “Did I understand you correctly . . . that the government might not follow a circuit opinion because you disagree with it?” Sauer admitted the administration reserved that right in exceptional circumstances. Chief Justice Roberts remarked, “This case is more about universal injunctions than birthright citizenship, isn’t it?” though several liberal justices, including Kagan and Jackson, emphasized the citizenship issue’s substance.
Post-argument, amici briefs poured in: the Cato Institute argued nationwide injunctions violate separation-of-powers principles, while the Brennan Center warned of a “citizenship crisis” that would leave tens of thousands of American-born children in limbo. Over fifty members of Congress filed an amicus from both parties decrying executive overreach or urging deference to long-standing constitutional interpretation. A decision is anticipated by June 30, 2025.
VIEWPOINTS AND COMMENTARY
Progressive / Liberal Perspectives
Civil rights organizations and Democratic lawmakers warn that any effort to strip birthright citizenship would contravene the Equal Protection Clause and Congress’s Reconstruction-era intent. Patricia Ledesma, legal director at the ACLU’s Immigrants’ Rights Project, asserts, “The Fourteenth Amendment was ratified to secure rights for the newly freed—and that promise extends to all children born here, regardless of their parents’ status”. Harvard constitutional scholar Heather K. Gerken emphasizes that the phrase “subject to the jurisdiction” plainly excludes only narrow classes (diplomats, invading soldiers) and that broad exclusions would resurrect pre–Civil War notions of second-class persons.
Democratic legislators, including Senator Dick Durbin (D-IL), highlight the morally untenable situation of statelessness for U.S.–born children. “Imagine a baby born in Chicago, denied a birth certificate, forced into legal uncertainty—that is a human rights crisis,” Durbin told reporters on May 16. Constitutional historian Akhil Reed Amar notes in Legal Affairs, “The Citizenship Clause is the clearest expression of jus soli in the world’s major democracies. To undo it by executive fiat would mark an unprecedented constitutional rupture”.
Conservative / Right-Leaning Perspectives
Republican lawmakers and conservative legal scholars focus on presidential authority and the propriety of nationwide injunctions. Senator Lindsey Graham (R-SC) contends, “If a single district judge can overturn national policy by pausing it everywhere, the separation of powers collapses”. Federalist Society fellow Ilya Somin writes that the Fourteenth Amendment’s jurisdictional phrase was never meant to encompass children of “illegal aliens” and that Chevron deference should guide courts to defer to reasonable executive interpretations of ambiguous statutes.
Constitutional originalist Randy Barnett argues, “The historical record shows that the framers of the Fourteenth Amendment sought to limit citizenship to those fully integrated into political society. The executive order merely aligns policy with textualist interpretation”. Even some conservative justices expressed openness to curbing universal injunctions—Justice Kavanaugh asked practical questions about implementation logistics, such as how hospitals and states would handle undocumented newborns, reflecting concern about patchwork litigation producing chaos.
Comparable or Historical Cases
The bedrock precedent for birthright citizenship is United States v. Wong Kim Ark (1898), in which the Supreme Court affirmed that a child born on U.S. soil to non-citizen parents is nonetheless a U.S. citizen under the Fourteenth Amendment. Chief Justice Fuller’s majority opinion emphasized the “plain meaning” of “subject to the jurisdiction thereof,” explaining that only narrow exceptions—children of foreign diplomats or occupying enemy forces—were excluded. This case remains the definitive articulation of jus soli in American law and has gone unchallenged for more than a century.
A second landmark decision, United States v. Guest (1966), further clarified the “jurisdiction” prong of the Citizenship Clause. Although Guest primarily addressed civil-rights enforcement under the Fourteenth Amendment, Justice Clark’s plurality opinion underscored that nearly all individuals born in the United States are “subject to its jurisdiction,” save for those owing allegiance to foreign sovereigns. This ruling reinforced that diplomatic or military exceptions do not extend to children of unauthorized immigrants.
By contrast, Trump v. Hawaii (2018) illustrates the high degree of deference historically shown to the executive in immigration and national-security contexts. While the case upheld presidential authority to impose travel restrictions on nationals from certain countries, it also distinguished policy measures grounded in statutory authority from fundamental constitutional guarantees like citizenship. That decision’s rational-basis standard for examining executive actions on immigration serves as a caution: deference has its limits when fundamental rights or clear constitutional text are implicated.
An earlier, more nuanced analogy appears in Edwards v. California (1941), where the Court struck down a state law criminalizing the transportation of indigent persons across state lines. Although the case did not directly involve citizenship, it underscored the Court’s willingness to invalidate laws that effectively criminalize or stigmatize vulnerable individuals. Critics have drawn a parallel between denying birth certificates to U.S.-born children and the Edwards statute’s attempt to criminalize the poor—both, they argue, would create a class of “second-class” persons contrary to equal-protection principles.
Finally, procedural precedents on nationwide injunctions—though not directly concerning citizenship—shape the present litigation’s contours. Cases like Biden v. Texas (2021) and State of Missouri v. Biden (2022) highlight the controversy over whether individual district courts may issue sweeping, nation-wide stays against federal policy. Justices Alito and Kavanaugh have criticized the practice as “runaway judicial power,” whereas liberal justices view it as an essential check on executive overreach. These precedents frame the Supreme Court’s procedural inquiry: whether to uphold the broad preliminary injunctions blocking the executive order, or to require case-specific, geographically limited relief.
Collectively, these historical and procedural comparisons reveal a consistent judicial protection of the Fourteenth Amendment’s text and principles. Any deviation from the doctrines established in Wong Kim Ark and Guest would represent an unprecedented shift in citizenship jurisprudence. Likewise, the debate over nationwide injunctions underscores the Court’s pivotal role in delineating the boundaries of both constitutional rights and the judiciary’s own remedial powers.
Policy Implications and Forecasting
A Supreme Court ruling reaffirming that executive orders cannot curtail birthright citizenship would immediately stabilize U.S. immigration and vital-records systems. Hospitals, state registrars, and Social Security offices would continue to issue birth certificates and citizenship proofs without disruption. Enshrining the principle of jus soli would bolster public trust in the rule of law, signaling that core constitutional rights remain immune to political fluctuations. Legal scholars at the Brennan Center predict this outcome would deter future administrations from pursuing similar litigation, instead prompting Congress to engage in transparent legislative debate if reform is sought.
Conversely, if the Court narrows the injunctions—limiting them to specific jurisdictions—while declining to resolve the substantive citizenship question, the litigation could return to lower courts. Such procedural fragmentation would produce a patchwork legal landscape: births in some states recognized immediately, others mired in uncertainty pending protracted trials. Vital-records offices in jurisdictions subject to lifted injunctions might begin rejecting birth certificates for certain newborns, effectively creating geographic disparities in citizenship rights. This scenario risks administrative confusion, unequal treatment of families, and potential lawsuits against states for civil-rights violations.
A more dramatic outcome—one that affirms the executive’s authority to exclude classes of children from birthright citizenship—would disrupt both domestic and international norms. In the short term, tens of thousands of children born to non-citizen parents could face statelessness or indefinite legal limbo, triggering humanitarian crises and litigation over due-process rights. Hospitals and midwives, uncertain whether to issue standard birth records, may resort to provisional documents, complicating access to healthcare and public benefits. Immigration advocates warn that such a ruling would dismantle the longstanding American commitment to jus soli and embolden restrictive nationality laws abroad.
Long-term, stripping birthright citizenship by executive decree would likely spur legislative action. Congress could attempt to codify or limit citizenship via new statutes—though any such law would almost certainly face constitutional challenges. Alternatively, the crisis could catalyze a push for a formal constitutional amendment clarifying citizenship criteria, an arduous process requiring supermajorities in both chambers and ratification by three-quarters of the states. Policymakers at Brookings caution that that route risks polarizing the electorate and leaving citizenship rights in perpetual limbo until a political consensus emerges—something that, historically, has been difficult to achieve.
Internationally, the U.S. decision would reverberate in global human-rights forums. Nations grappling with immigration have studied the American model of jus soli; a U.S. retreat from universal birthright citizenship could encourage restrictive nationality laws, undermining children’s rights worldwide. The United Nations human-rights committee has already expressed concern about executive attempts to withdraw citizenship unilaterally, warning of potential breaches of treaties such as the Convention on the Rights of the Child.
In sum, the Court’s decision will shape not only domestic civil-rights and administrative practice but also international norms and legislative agendas. Whether reinforcing constitutional guarantees or opening the door to executive reinterpretation, the ruling will leave a lasting imprint on the balance of powers, the rule of law, and the lived reality of millions of U.S.-born children.
Conclusion
The Supreme Court’s impending decision on President Trump’s executive order to limit birthright citizenship and the scope of nationwide injunctions encapsulates a profound constitutional crossroads. At its core is a choice between preserving the Fourteenth Amendment’s clear guarantee—understood and upheld for over 125 years—and permitting a transformative reinterpretation of citizenship by unilateral executive act. As Justice Sonia Sotomayor admonished during argument, “To unsettle the promise of citizenship is to unsettle the promise of America itself,” highlighting the existential stakes of this litigation.
Should the Court reaffirm Wong Kim Ark’s broad jus soli principle and curtail universal injunctions, it will reinforce the separation of powers by clarifying that only Congress or a constitutional amendment may alter birthright citizenship. This outcome would reaffirm judicial responsibility to protect fundamental rights against executive encroachment while guiding lower courts toward more restrained, case-specific injunctions. Such clarity would benefit families, administrators, and policymakers alike, avoiding the chaos of varying injunction scopes and ensuring uniform application of constitutional norms.
Alternatively, if the Court permits the executive to redefine “subject to the jurisdiction thereof,” even indirectly through procedural rulings on injunctions, it risks embedding a structural vulnerability in American citizenship. Future administrations could weaponize the Office of the President to reshape one of the nation’s most cherished guarantees, sidestepping the deliberative processes of Congress and constitutional amendment. This path would not only provoke immediate humanitarian concerns—children born in the U.S. becoming stateless or forced into bureaucratic limbo—but also diminish public confidence in constitutional permanence.
The stakes extend beyond this case’s immediate parties. By examining the procedural question of nationwide injunctions alongside the substantive citizenship issue, the Court must consider whether its remedial powers bolster or weaken constitutional protections. Justice Roberts’s observation that “this case is more about universal injunctions than birthright citizenship” underscores the interconnectedness of procedure and substance: limiting injunctions could enable executive reinterpretations, while preserving broad judicial relief shields constitutional rights from administrative erosion.
Looking forward, the Court’s resolution will influence legislative behavior, administrative policy, and academic discourse. Congress may respond with statutes clarifying citizenship criteria or pursue a constitutional amendment, while state officials adjust birth-record protocols to align with judicial guidance. Legal scholars will debate the balance between judicial restraint and rights protection, and international observers will watch for shifts in U.S. citizenship norms.
Ultimately, the decision will define the contours of American democracy: whether citizenship, the foundational bond between individuals and the state, remains an unassailable birthright or becomes a privilege subject to political winds. As the nation awaits the Court’s ruling by June 30, 2025, one question endures: will the Constitution’s most fundamental promise withstand the test of executive power?
For Further Reading
- “Wong Kim Ark Revisited: Birthright Citizenship in the 21st Century”, Harvard Law Review, 2024, https://www.harvardlawreview.org/2024/06/wong-kim-ark-revisited
- “The Shadow Docket and Democracy”, SCOTUSblog, May 12, 2025, https://www.scotusblog.com/2025/05/shadow-docket-democracy
- “Birthright Citizenship: A Comparative Perspective”, Carnegie Endowment for International Peace, 2023, https://carnegieendowment.org/2023/11/birthright-comparison
- “Nationwide Injunctions: A Threat to Judicial Restraint?”, Cato Institute Policy Analysis No. 950, 2025, https://www.cato.org/policy-analysis/950
- “Executive Power and the Fourteenth Amendment”, Yale Journal of Constitutional Law, Spring 2025, https://www.yalejcl.org/vol15/lee-executive-power