Supreme Court strikes down Trump's birthright citizenship executive order

The Supreme Court struck down an executive order seeking to limit birthright citizenship under the 14th Amendment on Tuesday, handing President Donald Trump another major loss at the high court this term.

The Supreme Court ruled 6-3 to strike down Trump’s executive order as unlawful, but only a 5-4 majority said it violated the Constitution. Those five justices defined birthright citizenship under the Constitution to include the children of parents who are in the country illegally or temporarily. The 5-4 majority on the constitutionality question forecloses the ability for Congress to limit birthright citizenship, barring a constitutional amendment.

Chief Justice John Roberts wrote the majority opinion, which was joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson.

“Citizenship, then and now, was the right to have rights—to freely participate in our political community,” Roberts wrote. “The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”

Under Trump’s birthright citizenship executive order, a child born on U.S. soil who has one parent who is a U.S. citizen or permanent resident would have still been granted citizenship at birth, but children born to parents who are both either in the country illegally or on a temporary basis, such as on a visa, would not have been granted birthright citizenship. The executive order immediately sparked lawsuits, which blocked it from taking effect, and less than 15 months later, the Supreme Court heard oral arguments in the case.

Roberts explained in his majority opinion that the order was unconstitutional, with the high court affirming in a 5-4 decision that all persons born in the U.S. to parents unlawfully or temporarily present are still citizens at birth. The closely divided decision was a surprisingly close result after few, if any, of the justices appeared open to the Trump administration’s defense of the executive order during April’s oral arguments.

Justice Brett Kavanaugh penned an opinion concurring in part and dissenting in part, arguing that the executive order should be struck down, but saying that Congress could have narrowed birthright citizenship. He argues the order does not violate the 14th Amendment, but does violate federal law, which could be amended by Congress.

“Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country,” he wrote. “But Congress has not yet done so.”

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented in full from the majority’s ruling, with Thomas and Alito writing separate dissenting opinions, which were both joined by Gorsuch. Thomas took aim at the majority’s discussion of the 14th Amendment, which he decried as “not historically accurate” and argued the amendment was not intended to give sweeping citizenship to people not legally domiciled in the U.S.

“The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens,” Thomas wrote. “In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support. Because many potential applications of the President’s Order are consistent with the original public meaning of the Citizenship Clause, I respectfully dissent.”

Alito’s dissent also took aim at the majority’s telling of the history around the citizenship clause of the 14th Amendment, saying “every step of this story is incorrect.”

“This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake,” Alito wrote. “As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of ‘birth tourists,’ women who come here solely for the purpose of giving birth to a child and then promptly return home.

“Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.”

Jackson also wrote a concurring opinion, which was joined partially by Sotomayor, in which she noted that she agreed with Roberts’s majority opinion in full but also took aim at Thomas’s dissent.

“Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott,’ and those who shared with them certain characteristics,” Jackson wrote. “It is for this reason, he says, that ‘children who were born in the United States but [to parents] not domiciled here’ are not entitled to claim birthright citizenship.

“But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, Justice Thomas’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.”

During April’s oral arguments, the justices appeared deeply skeptical of the Trump administration’s arguments in favor of upholding the narrowed understanding of birthright citizenship. Roberts led the questioning from the skeptical panel, grilling the Justice Department on its use of “quirky” examples of people excluded from birthright citizenship, such as children of foreign diplomats, to justify excluding broad groups of people, such as illegal immigrants.

Since returning to the White House, Trump has had a mixed record at the Supreme Court on the merits docket, winning in last year’s case against universal injunctions but losing earlier this year in the case over his sweeping global tariffs.