SCOTUSblog By César Cuauhtémoc García Hernández 10/21/2025
Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.
President Donald Trump’s executive order limiting birthright citizenship is back before the Supreme Court. Unlike the last time that challenges to the policy reached the justices – when they focused on a procedural issue – the Justice Department is now asking the court to side squarely with the president’s interpretation of the 14th Amendment. To support the president’s view that the Constitution’s citizenship clause always required consideration of a parent’s citizenship or immigration status, the Justice Department points to a variety of 19th-century sources, most prominently work by Justice Joseph Story, who is among the court’s most revered members. But a close reading of the writings by Story that the government cites reveals that its present-day argument misses key nuance from the past.
The backgroundOn his first day back in the White House, Trump issued an executive order directing executive branch agencies to deny U.S. citizenship to children born in the United States based on the citizenship or immigration status of their parents. Specifically, under the order, government agencies must deny recognition as a U.S. citizen to anyone born in the United States to a father who, at the time of the child’s birth, is neither a U.S. citizen nor lawful permanent resident and a mother who was living in the country without the federal government’s authorization or with permission to live in the United States temporarily. This would include children born to mothers who enter the United States clandestinely or who enter with the government’s permission but remain after their permission expires. It also includes children whose mothers are living in the United States lawfully as students or high-skilled professionals, as well as under humanitarian immigration options. The order would apply only to people born on or after February 20, 2025.
Multiple rounds of litigation have blocked officials from implementing the president’s birthright citizenship directive. After various federal district courts blocked officials from preparing to deny children U.S. citizenship according to the terms of the president’s directive, the Supreme Court stepped in at the Justice Department’s request. In July, the court issued a ruling barring district courts from issuing nationwide implementation pauses called universal injunctions. Since then, the legal challenges to the president’s order have focused on whether it conflicts with the 14th Amendment and a federal law that Congress enacted in 1952. Every court to consider the question has sided with the litigants challenging Trump’s order.
The briefingLast month, the Justice Department asked the Supreme Court to weigh in on the legality of Trump’s order. In briefs filed in two cases, the government urges the court to review decisions by the U.S. Court of Appeals for the 9th Circuit in Washington v. Trump and the U.S. District Court for the District of New Hampshire in Barbara v. Trump. Both courts have blocked the administration from implementing Trump’s order after having concluded that it violates longstanding federal law, most importantly the Supreme Court’s 1898 interpretation of the citizenship clause in United States v. Wong Kim Ark. The challengers’ responses have not yet been filed, but the justices are likely to announce by mid-January whether they will hear the Justice Department’s request to add this case to its merits docket.
More:
https://www.scotusblog.com/2025/10/misusing-history-to-limit-birthright-citizenship/
