The U.S. Supreme Court on Oct. 9, 2024. (Photo by Jane Norman/States Newsroom)

The U.S. Supreme Court said Friday justices will hear a case to decide if President Donald Trump’s order to end birthright citizenship is constitutional.

The court agreed to hear a case, before it is decided in a lower court, that deals with the Constitution’s 14th Amendment, which grants citizenship to almost everyone born in the United States. The amendment’s birthright citizenship clause has been used to give citizenship to the children of immigrants in the country without legal authorization or on a temporary basis.

While a schedule for arguments has not yet been released by the court, it’s likely the case would be heard sometime in early 2026.

The Trump administration argued in its petition to the court that the amendment, which was adopted in 1868, was meant to apply to newly freed slaves. It was not meant to provide citizenship to the children of immigrants without legal status, Solicitor General D. John Sauer wrote.

“Long after the Clause’s adoption, the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences,” Sauer wrote in the September petition.

The petition also sought Supreme Court review of a related challenge to the order by the states of Washington, Arizona, Illinois and Oregon. Friday’s court order did not grant a hearing on that case.

Trump signed an executive order on Jan. 20 seeking to redefine the birthright citizenship clause to exclude the children of immigrants in the country without legal authority or only temporarily. Democratic-led states and advocacy groups swiftly sued.

Courts have largely blocked enforcement of the order, although the Supreme Court in June allowed it to go into effect in the states that had not sued to preserve the right.

In a Friday afternoon statement, the American Civil Liberties Union, a leading civil rights group, noted that several federal judges had blocked enforcement and predicted the Supreme Court would preserve birthright citizenship.

“No president can change the 14th Amendment’s fundamental promise of citizenship,” Cecillia Wang, ACLU’s national legal director, said. “For over 150 years, it has been the law and our national tradition that everyone born on U.S. soil is a citizen from birth. The federal courts have unanimously held that President Trump’s executive order is contrary to the Constitution, a Supreme Court decision from 1898, and a law enacted by Congress. We look forward to putting this issue to rest once and for all in the Supreme Court this term.”

The Trump administration has asked the U.S. Supreme Court to consider an executive order seeking to end birthright citizenship. (Photo by Jane Norman/States Newsroom)

WASHINGTON — The Trump administration has again petitioned the U.S. Supreme Court regarding birthright citizenship, this time on the merits of the administration’s effort to rewrite the constitutional right afforded to children born on U.S. soil. 

In two cases brought to the high court, lower courts kept in place a preliminary injunction against President Donald Trump’s executive order that ended birthright citizenship. 

U.S. Solicitor General D. John Sauer petitioned the court Friday to reverse those decisions. The high court case was docketed Monday. Responses from both parties are due by Oct. 29.

Sauer is asking the justices to revisit the 14th amendment, arguing that it was meant to grant citizenship to newly freed Black people after the Civil War, not for the children of immigrants with temporary visas or in the country without legal authorization. 

“The mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences,” Sauer wrote.

Sauer did not ask the court to fast-track the petition, so if the justices decide to take up the case the earliest they would do so would be the summer of next year. 

One case is from Washington state on behalf of attorneys general in that state, Arizona, Illinois and Oregon. The other case is from New Hampshire, where a national of Honduras is due to give birth in October and fears her child will not be granted U.S. citizenship.

Immigration policy stymied

Sauer said the president’s executive order aimed to advance his immigration policy and that lower courts’ decisions to block that agenda harms the U.S.

“The government has a compelling interest in ensuring that American citizenship—the privilege that allows us to choose our political leaders—is granted only to those who are lawfully entitled to it. The lower court’s decisions invalidated a policy of prime importance to the President and his Administration in a manner that undermines our border security,” he wrote. “Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people.”

The Trump administration in March brought the issue to the high court on an emergency basis, but did not ask the justices to determine the constitutionality of birthright citizenship. Instead, the administration asked the court to address the issue of nationwide injunctions from the lower courts. 

In June, the Supreme Court reined in nationwide injunctions by some lower courts that had blocked the executive order rewriting birthright citizenship.

Executive order rewrote 14th Amendment

The order Trump signed in January directs the federal government to not recognize or issue citizenship documentation to any child born after Feb. 19 to parents who are in the country without proper authorization, or if the parent is in the United States on a temporary visa and the other parent is a noncitizen or green card holder. 

Under birthright citizenship, all children born in the U.S. are considered citizens, regardless of their parents’ legal status, except for the children born to foreign diplomats. 

The administration interprets that phrase in the 14th Amendment that confers birthright citizenship to people “subject to the jurisdiction of the United States” to exclude people in the U.S. without legal status or temporary legal status. Those people are subject to the laws of their home country, the administration argues.

The Supreme Court has ruled on birthright citizenship many times, including a 1898 decision in which the justices upheld birthright citizenship in United States v. Wong Kim Ark.

Ark was born in San Francisco to parents who were citizens of the Republic of China, but had visas giving them legal authority to be in the country. Ark’s citizenship was not recognized when he left the U.S. and he was denied reentry due to the Chinese Exclusion Act — a racist law designed to restrict and limit nearly all immigration of Chinese nationals.

The high court ruled in Ark’s case that children born in the U.S. to parents who were not citizens automatically become citizens at birth.