Trump administration presses Supreme Court on executive order restricting birthright citizenship

The Trump administration in June filed a petition asking the U.S. Supreme Court to review President Trump’s executive order restricting birthright citizenship, a move that could redefine a long-standing constitutional guarantee. That appeal has not yet been docketed, but justices are expected in coming weeks to decide whether to hear the case, according to Fox News.

According to CNN, the filing by Solicitor General D. John Sauer argued that the prevailing interpretation of the Fourteenth Amendment is “mistaken” and has had “destructive consequences.” Sauer wrote that lower-court rulings against the order improperly conferred “the privilege of American citizenship on hundreds of thousands of unqualified people.”

At stake is whether the U.S. will continue to recognize nearly all children born on its soil as citizens, a principle the Supreme Court decided in “United States v. Wong Kim Ark” (1898).

The outcome could reshape the 14th Amendment’s Citizenship Clause, which has long been understood to guarantee citizenship to virtually every child born on U.S. soil regardless of parents’ status.

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John Eastman, who advised on drafting the order, praised the administration’s appeal. “Hurrah for Solicitor General Sauer for expeditiously seeking Supreme Court review of the Ninth Circuit’s decision blocking President Trump’s executive order restoring the original meaning of the 14th Amendment’s citizenship clause,” Eastman told Fox News Digital.

“The people who drafted and ratified that clause never intended to confer automatic citizenship on the children of temporary visitors, and certainly not to the children of illegal aliens. The historical record is clear, and I look forward to the Supreme Court restoring the original meaning of the clause.”

Trump’s order seeks to narrow that interpretation to children of U.S. citizens and lawful permanent residents. If upheld, it could deny automatic citizenship to many children born in the U.S. each year.

In “Wong Kim Ark,” the Court ruled that a San Francisco-born man whose Chinese parents were barred from naturalization was nonetheless an American citizen under the 14th Amendment. That decision cemented “jus soli,” or citizenship by birth on American soil, with narrow exceptions for children of diplomats, foreign occupiers and sovereign tribal nations.

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Critics of the executive order argue that the text and history are clear. UC Berkeley law professor John Yoo has written that the Framers borrowed British “jus soli” traditions and that Reconstruction lawmakers expanded citizenship to ensure formerly enslaved people and their descendants were fully included.

“It is simply beyond doubt that the Framers operated by borrowing and adopting common law principles … to adopt an interpretation that rejects that meaning, we would want to see historical evidence that the Framers had adopted a radically new interpretation,” Yoo wrote.

Supporters of the order counter that the phrase “subject to the jurisdiction thereof” requires full and lawful political allegiance, not simply being born on U.S. soil. John Eastman, who advised on drafting the policy, has argued that the Constitution requires both birth on U.S. soil and “complete” jurisdiction. “Complete” means allegiance to the U.S., not to another sovereign. 

The order has already faced multiple challenges. Federal courts initially blocked it with broad injunctions, though the Supreme Court later narrowed those rulings.

In a recent dissent, Justice Sonia Sotomayor suggested class actions could provide a way forward for challengers, writing that “parents of children covered by the Citizenship Order would be well advised to file promptly class action suits … and lower courts would be wise to act swiftly.” 

“Every court to have looked at this cruel order agrees that it is unconstitutional … we are fighting to make sure President Trump cannot trample on the citizenship rights of a single child,” said Cody Wofsy, an attorney with the ACLU after June’s petition.

“This executive order directly opposes our Constitution, values, and history, and it would create a permanent, multigenerational subclass,” added Devon Chaffee, executive director of ACLU-NH.

Karla McKanders of the Legal Defense Fund called the order “an unlawful attempt to entrench racial hierarchies,” saying, “Citizenship is a right afforded to us by birth, not by privilege.”

Fox News Digital has requested comment from the White House and the ACLU and its partner organizations.