Supreme Court hears landmark case on birthright citizenship
The Heritage Foundation's Roger Severino joined 'Fox & Friends First' to discuss the Supreme Court hearing a landmark case addressing birthright citizenship.
At the core of our sovereignty is the right to determine who is entitled to citizenship. The Fourteenth Amendment grants citizenship to people born in the United States and subject to the jurisdiction thereof. On Wednesday, the Supreme Court heard oral arguments in Trump v. Barbara, a case concerning the lawfulness of President Trump’s commonsense executive order that restores the original understanding of birthright citizenship. Joe Biden mass-imported millions of illegal immigrants, but these individuals have no right to citizenship at birth. The text and history of the Fourteenth Amendment make that clear, and the Supreme Court should rule accordingly.
Leftists have argued wrongly that the question before the Court was settled a century ago in United States v. Wong Kim Ark (1898). The Chinese parents in that case were legal permanent residents of the United States, and the Court held that their children were entitled to citizenship. The case had nothing to do with temporary visitors to the United States, nor did it have anything to do with children born to illegal immigrants. After Wong Kim Ark, the view in the legal community of its holding was, as Justice Neil Gorsuch put it, "a mess." Many scholars, including a dozen treatises, for instance, agreed with the position that Solicitor General John Sauer took; that is, Wong Kim Ark never decided the question of birthright citizenship for illegal immigrants or temporary residents.
People demonstrate outside the U.S. Supreme Court ahead of U.S. President Donald Trump's expected arrival on April 01, 2026 in Washington, DC. The Supreme Court is hearing oral arguments in Trump v. Barbara to determine if President Trump's executive order ending birthright citizenship is constitutional. According to historians and the Court, this is the first time a sitting president has attended oral arguments at the nation's highest court. (Al Drago/Getty Images)
The debates and original public understanding of the Fourteenth Amendment also support the Trump administration’s view of birthright citizenship. For instance, Senator Lyman Trumbull of Illinois stated that the phrase "subject to the jurisdiction thereof" did not simply mean regulatory jurisdiction, such as being subject to the laws of the United States while present here. Rather, Senator Trumbull explained, the phrase meant that one has no allegiance to anybody else, meaning to any foreign power. This explanation tracks with the language of the Civil Rights Act of 1866. The same Congress that sent the Fourteenth Amendment to the states for ratification adopted the Civil Rights Act. For many years after the adoption of the Fourteenth Amendment, secretaries of various departments also adopted the same view of the Fourteenth Amendment that the Trump administration holds.
Supreme Court precedent also supports the administration’s interpretation. In Elk v. Wilkins (1884), the Court held that Indians born in the United States are not entitled to birthright citizenship. Congress granted them birthright citizenship in 1924. This is the way the political process is supposed to work. Justices are not politicians; they wear robes, not capes. They have a crucial but limited role. The Elk Court clearly understood this modest role, and the present slate of justices should follow suit.
Supreme Court Justice Neil Gorsuch speaks at the Nixon Presidential Library and Museum in Yorba Linda, California, on Friday, Aug. 9, 2024. (Paul Bersebach/MediaNews Group/Orange County Register via Getty Images)
INSIDE SUPREME COURT: HOW TRUMP HEARD BIRTHRIGHT CITIZENSHIP ARGUMENTS
Birthright citizenship for illegal immigrants’ children and children of tourists (so-called birth tourism) represents an enormous threat to our sovereignty. Over a million Chinese nationals living in China are American citizens thanks to this loophole, even though they have no allegiance to our Republic. China has approximately 500 birth tourism companies that transport women from China to, for instance, the American territory of the Northern Mariana Islands for the purpose of giving birth to children who will become American citizens and thus be entitled to vote in American elections once they turn 18. Through this scheme, China will be able to exert massive influence over American policy, as the number of these birth tourism citizens will grow even more significantly.
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During her argument against the administration, ACLU attorney Cecillia Wang claimed, under questioning by Justice Brett Kavanaugh, that not even Congress can prevent the children of birth tourists and illegal immigrants from receiving birthright citizenship, even if both Houses agree unanimously. This claim is horrifying because it prevents our leaders from exercising the most fundamental sovereign power of deciding who is and is not a citizen. The administration’s position is far more modest. If there is political support for birth tourism and citizenship for children of illegal immigrants, Congress can easily pass a statute to that effect. The Supreme Court, however, should not constitutionalize such a facially absurd rule.
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Illegal immigration is a societal scourge and birthright citizenship for their children only incentivizes more illegal immigration. Leftists want: (1) open borders; (2) little if any enforcement of our immigration laws with respect to illegals who are already here, hence the refusal to fund the Department of Homeland Security; and (3) a reward for illegals in the form of automatic citizenship for their children born here. This scheme, designed to produce Democrat voters, threatens America and is in no way what the Framers or the authors of the Fourteenth Amendment intended.
Police stand outside the U.S. Supreme Court ahead of U.S. President Donald Trump's expected arrival on April 01, 2026 in Washington, DC. The Supreme Court is hearing oral arguments in Trump v. Barbara to determine if President Trump's executive order ending birthright citizenship is constitutional. According to historians and the Court, this is the first time a sitting president has attended oral arguments at the nation's highest court. (Heather Diehl/Getty Images)
This is an easy case. The law was not settled over a century ago, contrary to leftist so-called legal analysts. For the sake of our sovereignty, the Supreme Court must display courage and follow the law. The justices took a solemn oath to defend the Constitution, even if it’s politically unpopular. Upholding President Trump’s executive order would honor that oath and preserve our sovereignty.
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