The Supreme Court hears oral arguments on April 1 in Trump v. Barbara, the challenge to Executive Order 14160, where Trump denied citizenship to children born to undocumented or nonresident parents. Every lower court that has ruled on it — including the 9th Circuit in a 2-1 decision — found the order unconstitutional. The 14th Amendment's Citizenship Clause has been interpreted to guarantee birthright citizenship since 1868, and the Supreme Court affirmed it in United States v. Wong Kim Ark in 1898. A decision is expected by late June.

Every court that's looked at this order has called it unconstitutional. The 14th Amendment isn't ambiguous — it's one sentence.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens" — full stop. The ACLU's Cecillia Wang, who will argue the case Wednesday, calls Trump's order "flatly unconstitutional" and says it "directly contradicts Supreme Court precedent" and "conflicts with federal law." Wang is herself a birthright citizen, born in Oregon after her parents left Taiwan. The first federal judge to see the order, Seattle's John Coughenour, called it "blatantly unconstitutional" and blocked it nationwide within weeks.

The Supreme Court settled the legal question 128 years ago. In Wong Kim Ark, the Court ruled 6-2 that a child born in San Francisco to Chinese citizens was an American citizen at birth. Legal scholars Vikram David Amar and Jason Mazzone argue that even setting aside the 14th Amendment, the 1952 Immigration and Nationality Act alone requires the Court to strike Trump's order. Bethany Berger and Gregory Ablavsky, experts in Native American law, filed a brief arguing that the administration's reliance on Elk v. Wilkins — an 1884 case about tribal sovereignty — has no bearing on immigrant children.

The implementation alone would be catastrophic. At a May 2025 preliminary hearing, Justice Kavanaugh raised the core problem: every system the country has to prove citizenship is based on a birth certificate. The government would have to run checks on the parents of 3.6 million babies born annually. Jill Habig of the Public Rights Project predicted "a tidal wave of legal confusion and chaos." If implemented, it would be the first time since the 1860s that infants born in the U.S. were categorically denied citizenship.

2. It's Time to Correct a 150-Year Mistake (Trump, Sauer, Immigration Hawks)

The 14th Amendment was written for freed slaves, not birth tourism. "Subject to the jurisdiction thereof" means something — and the Court has never properly said what.

The words "subject to the jurisdiction thereof" are doing more work than anyone admits. Solicitor General D. John Sauer argues the Citizenship Clause requires "direct and immediate allegiance" to the United States — and that children of undocumented or temporarily present parents don't qualify because their parents lack legal domicile. Sauer points to Elk v. Wilkins, where the Court ruled 7-2 that a Native American born on reservation land wasn't automatically a citizen, as proof the 14th Amendment was never meant to cover everyone born on U.S. soil.

Sauer frames this as a question of fairness, not race. He argues birthright citizenship lets people "obtain the priceless gift of U.S. citizenship for their children by violating the United States' immigration laws — and by jumping in line ahead of others who are complying with the law." Peter Schweizer of the Government Accountability Institute describes a "birth tourism" industry where Chinese nationals pay roughly $100,000 for concierge service that arranges travel, medical care, and citizenship for their children. Trump posted on Truth Social days before the hearing that "We are the only Country in the World that dignifies this subject with even discussion."

Sauer wants the Court to treat this like Brown v. Board. He compared the case to landmark decisions that corrected "long-enduring misconceptions about the Constitution's meaning," including Brown v. Board of Education and District of Columbia v. Heller. The administration reads Wong Kim Ark narrowly — arguing it recognized birthright citizenship only for children of parents with "permanent domicil and residence," not temporary visitors or those present illegally.

3. Another Important Story: Trump v. SCOTUS (Court Observers, Originalist Scholars)

He appointed three of the six conservative justices. Now he's calling them "sickening" for ruling against him — and he may need their votes to win.

Trump told the country his own Supreme Court appointees "sicken" him. That was last month, after Barrett and Gorsuch joined the ruling against his tariffs. Now he needs those same justices — plus Kavanaugh — to overturn 128 years of precedent on his behalf. Days before Wednesday's hearing, he posted on Truth Social: "Dumb Judges and Justices will not a great Country make!" and called the court system "STUPID."

The conservative bloc is likely to fracture. The liberal justices need only two of the six conservatives to form a majority upholding birthright citizenship — and the most likely crossovers are Roberts, Kavanaugh, and Barrett. Thomas and Alito are the most aligned with Trump's immigration agenda. Kavanaugh already signaled concern at a preliminary hearing last May: he asked about 3.6 million annual births and the birth certificate system suggest he's worried about the practical impossibility of enforcement. The six Republican-appointed justices "seem likely to divide," according to court observers tracking the originalist disagreements.

Even originalism cuts against Trump here. Tom Lee of Fordham Law — a sympathetic originalist — argues Trump is only right about temporary visitors, not about children of undocumented residents. Lee says the 1868 original meaning supports citizenship for children of parents who reside in the U.S., even unlawfully. The broader originalist consensus holds that the Citizenship Clause was written to reverse Dred Scott and grant citizenship to freed slaves — and that reading supports the broadest possible interpretation. Conservative scholars have filed briefs on both sides.

Where This Lands

The Court has never directly ruled on whether the 14th Amendment covers children of undocumented immigrants — Wong Kim Ark involved domiciled residents — and Trump's legal team is betting that gap is wide enough to drive an executive order through. On the other hand, every lower court has said no — and the originalist scholarship cuts against him. And the baseline story may be that there's a widening fracture between Trump and "his" justices.

Sources