The US Supreme Court will make a final decision on birthright citizenship in the summer of 2026: What you need to know
The Supreme Court is preparing to hear Trump v. Washington. This case could change the constitutional understanding of birthright citizenship. Which ruling will the Court make? Newsweek.
At the center of attention is President Donald Trump's January 2025 Executive Order 14160, "Protecting the Meaning and Value of American Citizenship." This order directs federal agencies not to recognize citizenship rights for children born in the United States to temporary visitors or individuals unlawfully present if the birth occurred more than 30 days after the order's effective date.
The court's decision will determine not only the legal status of children born to undocumented or temporary parents, but also the constitutional understanding of who is part of the American political community.
On the subject: Court Blocks Trump's Order to End Birthright Citizenship
At stake is whether the president can unilaterally narrow citizenship eligibility, a move that several lower courts have ruled flouts precedents dating back more than a century.
The decision will affect immigration policy, define the limits of presidential power, and determine whether the United States will maintain its historically broad interpretation of the principle of "justice of the soil" (Latin: jus soli)—the principle that a person becomes a citizen simply by being born on the country's soil.
The alternative is a much more rigid model that could change the country's demographic and constitutional makeup for generations to come.
The key line in the Constitution
In Dred Scott v. Sandford (1856-1857), the Supreme Court ruled that African Americans—whether slaves or freemen—could not be citizens of the United States, and that Congress had no power to prohibit slavery in territories where it existed.
The Fourteenth Amendment, passed in 1866 and ratified in 1868, reversed that decision and extended basic rights to former slaves.
Its citizenship clause states: "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 principle was confirmed several years later by the case United States v. Wong Kim Ark: children born in the United States to immigrant parents are citizens from birth, regardless of the immigration status of the parents.
Today, American citizenship law combines:
- unlimited citizenship by birth (jus soli), which is granted to almost everyone born on American soil (with rare exceptions, such as the children of foreign diplomats);
- limited citizenship by descent (jus sanguinis), which is granted to children born abroad of United States citizen parents in accordance with rules established by law.
Both sides in Trump v. Washington agree that the citizenship clause requires two conditions—birth in the United States and subjection to the jurisdiction of the United States—but disagree sharply on what the second phrase meant in 1868 and what it means today.
Even before the courts had a chance to fully consider these arguments, several lawsuits were filed immediately after the issuance of Executive Order 14160.
Federal courts quickly blocked the order.
One circuit judge wrote that "citizenship in the United States is a right no less precious than life or liberty," and that the policy "contradicts the plain text of the Fourteenth Amendment, overturns binding 125-year-old Supreme Court precedent, and flies in the face of our nation's 250-year history on the issue of birthright citizenship."
Thus, the dispute boils down to the interpretation of one constitutional phrase – “subject to their jurisdiction,” which has divided scholars, judges, and politicians for decades.
Some scholars, such as Akhil Reed Amar of Yale Law School, emphasize the amendment's equal rights ideals.
Amar writes that "if you were born in America under the American flag, you are an American citizen," regardless of whether you are the daughter of a president or the son of an undocumented person.
Others, including Kurt Lash of the University of Richmond, argue the opposite.
Lash believes that "mere birth on American soil does not confer such a right" and that the jurisdiction requirement excludes children born in "a context of renunciation of allegiance or opposition to allegiance to the United States."
The Supreme Court's interpretation to date
In Wong Kim Ark, the Court, relying on what it called the "common law rule" of jus soli, held that a child born in the United States to Chinese nationals who were lawful residents of the country was a citizen under the Fourteenth Amendment.
The government now argues that this precedent applies only to children of citizens and lawful permanent residents, and not to children of undocumented persons or temporary visitors.
Furthermore, the administration cites the 1884 case Elk v. Wilkins, which stated that "no person can become a citizen of a nation without its consent." This line is used to prove that the United States did not grant citizenship to children born in the country to undocumented individuals.
It was this legal basis that the lower courts relied on when evaluating Executive Order No. 14160 before referring the case to the Supreme Court.
How scholars interpret the debate over birthright citizenship
Legal experts have long disagreed about how the citizenship provision applies to children of non-citizens. These disagreements are now affecting the Supreme Court's consideration of the case.
Many scholars take the Wong Kim case as a starting point.
Amanda Frost, a law professor at the University of Virginia, noted that the Supreme Court concluded, "All persons born in the United States—regardless of their race, ethnicity, or the immigration status of their parents—are citizens of the United States, period."
She did, however, clarify that resistance to this rule continued long after 1898.
Rogers M. Smith of the University of Pennsylvania argues that the framers of the Fourteenth Amendment intended to overturn the Dred Scott decision and create a broad, egalitarian rule of birthright citizenship, although the amendment's drafters struggled to reconcile their goals with complex issues about Native American tribes.
In his book, "Reviving Democracy: The Fourteenth Amendment and the Struggle for Equal Rights in Post-Civil War America," Garrett Epps, a law professor at the University of Oregon, writes: "The Senate wrestled with the issue of Native Americans, whose allegiance was believed to lie with their tribes, not the United States. Lawmakers agreed that the new amendment should not automatically make them citizens, but they disagreed on how to express that."
Other scientists take a narrower view.
Michael D. Ramsey of the University of San Diego believes that while the original intent of the provision supports a broad rule, the authors left "little evidence that they considered or could have foreseen the modern consequences" of universal birthright citizenship.
He notes that strict immigration laws only appeared in the late 19th century.
The scholars' views shape the central question for judges: does the citizenship provision establish a simple rule based solely on place of birth, or does it require deeper ties between a parent and the state?
What Birthright Citizenship Advocates Say
The defendant states argue that the Fourteenth Amendment "confers citizenship on children born in the United States, regardless of... the immigration status of their parents."
They rely on the Wong Kim Ark case and emphasize that “all branches of the federal government have long supported him.”
Their documents note that the provision "makes no mention of the parents' citizenship, immigration status, 'primary fidelity' or permanent residence."
They cite other cases, including Lynch v. Clark, an 1844 state court decision that held that a child born in the United States to non-citizen parents is nonetheless a natural-born citizen. This case helped establish jus soli as a common-law rule long before the Fourteenth Amendment.
The defendant states also rely on teachings, particularly Frederick Van Dine's Citizenship of the United States (1904). This treatise confirms that, under long-standing American laws and common law principles, almost all children born on American soil are citizens from birth.
They also reference the Reconstruction-era debates.
When asked during the debate on the Civil Rights Act of 1866 whether the proposed language would "have the effect of naturalizing the children of Chinese and Gypsies born in this country," Senator Lyman Trumbull, Republican of Illinois, replied, "Without a doubt."
Government research also supports this position. A Congressional Research Service review notes: "Under federal law, almost all persons born in the United States are citizens at birth. This rule is known as 'birthright citizenship,' and it derives from both the Constitution and the laws and regulations that supplement it."
In general, the defendant states present their position as based not only on the text of the Fourteenth Amendment and the Wong Kim Ark case, but also on what Frost of the University of Virginia describes as more than a century of “well-entrenched in American law” practice of birthright citizenship for “all born on American soil,” even if its application has sometimes been challenged.
What the Trump administration says
The White House maintains that the citizenship provision "was enacted to grant citizenship to recently freed slaves and their children, not to the children of aliens visiting the United States temporarily or persons here unlawfully."
The administration says birthright citizenship requires a "fundamental allegiance" to the United States—a condition it says is not present when parents are neither citizens nor lawful permanent residents—and that Executive Order 14160 restores the provision to its original meaning.
The government argues, among other things, that granting birthright citizenship to children of undocumented persons causes "significant harm," including creating incentives for illegal migration and undermining national security.
The administration presents its position as part of a broader effort to restore presidential control over immigration and citizenship policy and argues that universal jus soli has gone far beyond what the Fourteenth Amendment intended.
Proponents of Executive Order 14160 insist that limiting birthright citizenship will curb "birth tourism," reduce illegal immigration, and return citizenship laws to what they consider their historically sound principles.
What consequences
The decision to narrow the application of the birthright citizenship rule will have far-reaching consequences.
The plaintiffs estimate that the order will deprive more than 150 children born in the United States each year of automatic citizenship.
Judges reviewing the policy warn it could leave "tens of thousands" of children without clear legal status.
Demographic data underscore the scale: In 2014, the Pew Research Center estimated that about 275 children—roughly 7 percent of all births in the United States—were born to parents in the country illegally.
Research from the Urban Policy Institute shows that 15,9 million children in the United States (22,5 percent of all children) were born in the country to at least one immigrant parent.
Globally, the jus soli rule is rarely applied. Only about 33-35 countries (mostly in the Americas) grant automatic citizenship by birthright, as others have tightened their rules.
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What's next
A Supreme Court decision expected in the summer of 2026 will determine whether the Fourteenth Amendment provides what one document calls a "generous grant of citizenship of the United States" to nearly everyone born on American soil or whether, as critics argue, citizenship should depend on a "mutual acknowledgment of allegiance" between family and the state.
Any outcome would be the most significant overhaul of citizenship law since Reconstruction.
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