(The Center Square) – The U.S. Supreme Court will hear arguments on April 1 over whether to uphold birthright citizenship in the United States.
Trump v. Barbara challenges President Donald Trump’s Jan. 20, 2025, executive order that denies birthright citizenship to children in the U.S. born after Feb. 19, 2025, whose parents are either illegally present or temporary residents of the United States.
The case has far-reaching consequences and could fundamentally redefine the 14th amendment, an addendum to the U.S. Constitution that provided citizenship to formerly enslaved African Americans. Legal analysts said much interpretation of the 14th Amendment has shaped current immigration law in the United States.
The concept of birthright citizenship primarily rests on a Supreme Court interpretation of the 14th Amendment to include children born in the United States to foreign parents. The 14th Amendment reads: “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.”
Steven Menashi, a judge on the Second Circuit Court of Appeals, said the case will rely on the justices interpretation of “subject to the jurisdiction thereof.” He said the clause refers to being born under the protection of and owing allegiance to a sovereign.
Ilan Wurman, a law professor at the University of Minnesota, said English common law – of which the United States’ founding documents were modeled – should be understood to protect immigrants who have permission to be in the country by a sovereign leader.
“Permission was relevant to protection and protection, as it turns out, was relevant to jurisdiction,” Wurman said. “The sovereign operated on children through the parents, which, of course, makes sense because parents have a natural authority over their children.”
Keith Whittington, a law professor at Yale, argued that protection by a country’s ruler could be granted to a noncitizen based on the sovereign’s discretion.
“If the king chooses to tolerate your presence in the country and does not take active steps to remove you, then the assumption is you are under the full governing authority of the king and should be treated accordingly,” Whittingston said.
In a modern context, Whittington said this concept applies to how immigration laws are enforced in the United States. He pointed to the Trump administration’s policies of targeting immigration enforcement for the “worst of the worst.”
“If you’re not being actively removed from the country, then you are expected to play by the rules of the local jurisdiction and the government will continue to place demands on you and also expect that you will abide by local laws until the moment comes when we choose to actually take action and deport you,” Whittington said.
Ultimately, Whittington and Wurman agreed that justices on the high court should understand the 14th Amendment to not immediately extend citizenship for those born in the United States. Both professors called on Congress to provide more clarity over the 14th Amendment’s definitional issues.
Whittington said Congress could attempt to limit the ability of immigrants who attempt “birth tourism” in order to confer citizenship onto their children. He admitted that any kind of legislation could have loopholes similar to the 14th Amendment, which gave rise to the immigration problems of the modern era.
“If Congress really cared about this, they can take steps to try to minimize how often it happens, but that’s the extent of their authority to be able to do something about it,” Whittington said.
With April 1 quickly approaching, immigrants and citizens across the United States will be closely watching the high court’s determination.
