The Fight Over Birthright Citizenship Heads to the Supreme Court

This is a guest post by David Leopold, America’s Voice Legal Advisor and former president of the American Immigration Lawyers Association.

The debate over birthright citizenship is no longer a theoretical exercise confined to campaign trail rhetoric. What was once a fringe proposal championed by restrictionists in Congress has now become a central legal and political battle reaching the highest court in the land. As the Supreme Court hears oral arguments on the issue in Trump v. Barbara, it is worth examining what is truly at stake — not just for immigration policy, but for the foundational principles of American civil rights.

THE LEGAL AND HISTORICAL BACKDROP

The Fourteenth Amendment to the Constitution is unambiguous in its text: “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.” This provision was enacted during the Reconstruction era to overrule the Supreme Court’s infamous Dred Scott decision, which held that Black people born in the United States were not citizens but chattel to be bought, sold, and abused. For more than 150 years, the Fourteenth Amendment has shaped the nation’s understanding of citizenship and served as a cornerstone of American civil rights.

The legal precedent supporting birthright citizenship is equally well established. In the seminal 1898 case United States v. Wong Kim Ark, Justice Horace Gray wrote for the majority that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” That ruling has stood unchallenged for over a century.

THE TRUMP ADMINISTRATION’S ARGUMENT

Despite this history and precedent, the Trump administration is expected to argue that the children of undocumented immigrant parents are not subject to the “complete jurisdiction” of the United States and are therefore not covered by the Fourteenth Amendment. This tortured legal reasoning seeks to reinterpret the Amendment’s jurisdiction clause to exclude a class of people born on American soil from the constitutional guarantee of citizenship.

Efforts to restrict birthright citizenship are not new. Over the years, restrictionists have attempted to narrow the scope of the Fourteenth Amendment, first targeting Chinese immigrants in the 1800s and more recently focusing on Latino immigrants. Most recently, on January 20, 2025, President Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” which aims to end birthright citizenship at birth for unauthorized immigrants as well as immigrants legally but temporarily present in the United States, such as those on student, work, or a military service member.

With the Supreme Court now being asked to weigh in, the effort has escalated from the legislative and executive arenas to the judicial one, with the Supreme Court being asked to reconsider a principle that has defined American identity for generations.

THE ‘MAGNET’ MYTH

Proponents of ending birthright citizenship have long claimed that it serves as the “biggest magnet for illegal immigration,” drawing undocumented immigrants who use so-called “anchor babies” to secure benefits for themselves. This argument is absurd on its face.

In reality, being the undocumented parent of a U.S. citizen bestows no legal right to remain in the country, let alone to obtain a green card or citizenship. Thousands of undocumented parents are deported by the Department of Homeland Security every day. A U.S. citizen child cannot even begin to sponsor a parent until the age of 21, and at that point, a parent who entered the country illegally must leave the United States to apply for an immigrant visa abroad. Once that parent departs, another provision of the law bars his or her return for 10 years due to prior unlawful presence. Add five more years from green card eligibility to citizenship, and the fastest possible path to legal status through a child born in the U.S. is a grueling 36 years.

There is simply no evidence that large numbers of people are crossing the border to give birth as a strategy for gaining citizenship. To illustrate the point, less than 2 percent of Arizona babies in 2010 were born to nonresident mothers.

WHAT IS REALLY AT STAKE

The implications of stripping birthright citizenship from the Constitution are as far-reaching as they are disturbing. If constitutional citizenship were limited to the children of U.S. citizens and green card holders, a cascade of troubling questions would follow. Would physicians be required to report pregnancy and maternity information to immigration authorities? Would ICE agents be stationed in hospitals? Would existing U.S. citizens face denaturalization? Would Americans be required to produce not only their own papers, but those of their parents? And perhaps most chillingly, would millions of American-born children be rendered stateless?

According to the Migration Policy Institute, repealing birthright citizenship would increase the undocumented population by an additional 2.7 million by 2045 and by 5.4 million by 2075. These individuals would be forced into an underclass — denied access to health care and basic services, vulnerable to exploitation and abuse, and subject to constant risk of deportation through no fault of their own.

Far from solving the nation’s immigration challenges, eliminating birthright citizenship would make America’s already fractured immigration system dramatically worse, at an enormous humanitarian cost.

THE TRUE INTENT

The absurdity of the “anchor baby” narrative reveals the true purpose of the assault on constitutional citizenship. This is not a serious policy proposal aimed at fixing the immigration system. It is a signal of cruelty directed at the children of immigrants, and it serves a more nefarious goal: relegating those children into a permanent underclass, forever subject to exploitation by unscrupulous employers. It also places children who were born and raised in this country, and who are currently guaranteed citizenship, at risk of denaturalization, detention, and deportation.

It is also critical to acknowledge the uncomfortable reality that long-standing precedent may not be enough to protect this fundamental right. There is little evidence to suggest that the current Supreme Court’s hard-core conservative majority would approach this issue free of political or ideological bias. The comforting assumption that settled law will hold must be tempered by the recognition that the Court has shown a willingness to revisit and overturn established precedent in recent years.

A DEFINING MOMENT

The Citizenship Clause of the Fourteenth Amendment has very little to do with immigration at its core. It is fundamentally about the preservation of civil rights. Any effort to end birthright citizenship — whether through elimination or reinterpretation of the Citizenship Clause — comes at the grave cost of abridging those rights, echoing the dark era of Dred Scott, when human beings were treated as commodities.

As the Supreme Court takes up this issue, the nation must confront what kind of country it wants to be. The answer to that question will define not only the future of immigration law, but the meaning of American citizenship itself.