Birthright citizenship reaches the Supreme Court. What’s at stake?
The U.S. Supreme Court will hear arguments this week in a case that is both unusual and potentially seismic in its consequences.
The 14th Amendment says that anyone born in the United States is automatically a citizen of this country – and has been settled law since the 19th century. President Donald Trump is seeking to put an asterisk on that amendment as part of his crackdown on immigration. But before then, the Trump administration is asking the justices to resolve an unusual procedural question in Trump v. CASA, Inc.
In three lawsuits challenging the Jan. 20 birthright citizenship executive order, lower courts have found it unconstitutional. All three issued nationwide injunctions stopping it from taking effect. In what they have described as a “modest” request, Trump administration lawyers are asking the Supreme Court to narrow the injunctions to the individuals and states involved in what is now one combined case.
Why We Wrote This
On Thursday, the Supreme Court will hear oral arguments in a case asking whether an executive order must be applied uniformly across the United States.
In effect, the justices are being asked to allow the birthright citizenship order to take effect in parts of the country but not others. The case could transform the power of the judiciary, as laid out in Article III of the Constitution. More immediately, it also carries profound consequences for immigrants in the U.S.
The order would reinterpret birthright citizenship as it applies to individuals “subject to the jurisdiction” of the U.S. The administration defines this as excluding babies born to parents in the country unlawfully or temporarily. The justices will ultimately be the deciders of the order’s constitutionality. But this initial foray also has the potential for real-world consequences.
“Citizenship is one of those areas where we just haven’t seen different rules in different places,” says Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School.
“There’s some skepticism on the court around nationwide injunctions,” adds Professor Hallett. “But I don’t see how the court could side with the Trump administration without creating chaos and confusion.”
Different versions of the Constitution for different states?
Judges have issued numerous nationwide injunctions pausing Trump administration policies in the past four months – something some Trump supporters have said shouldn’t be allowed. (They felt differently during the Biden administration, funneling lawsuit after lawsuit through Amarillo, Texas, presided over by a lone, conservative judge appointed by Mr. Trump during his first term.)
The birthright citizenship order is, some legal experts say, a textbook example of when a nationwide injunction is justified. While it’s hotly debated whether an individual judge should have the power to make law affecting the whole country, even on a temporary basis, the Constitution is by definition the supreme law of every state. The framers created the Supreme Court in part to ensure that that law is applied uniformly across the country. If the high court allows the order to take partial effect, different federal courts would effectively be subject to different versions of the Constitution depending on their location.
What does it mean to be “stateless”?
Narrowing the Constitution’s birthright citizenship clause would also have real-world consequences. Parents who are unlawfully or temporarily present in the country would be most affected, experts say. In theory, though, every new parent could have to verify their immigration status under new criteria when applying for government documents or benefits for their children. It would likely be up to civil servants to make these new determinations.
The Trump administration argues that it is unable to create “public guidance about how [executive agencies] would implement” the order because of the nationwide injunctions.
Counter to the administration’s goals, some researchers say, enacting Mr. Trump’s order would actually swell the unauthorized population. If the order is enacted, that group could be 40% larger in 2075 than it would be under the current interpretation of birthright citizenship, according to a new analysis by the Migration Policy Institute. The think tank estimates there were 13.7 million unauthorized immigrants as of mid-2023.
In the most extreme scenarios, critics say, the order could grow the population of “stateless” individuals – who have no citizenship in any country – in the U.S. For them, obtaining an ID isn’t guaranteed, though they also can’t be easily deported.
The U.S. is not a signatory to United Nations Conventions on Statelessness. Neither does U.S. law define statelessness. That also means there is no structure through which stateless people can directly obtain a permanent legal status. Democratic lawmakers have tried, and failed, to change this.
According to one analysis, in the absence of federal data, roughly 218,000 U.S. residents were potentially stateless, or at risk of becoming stateless, as of 2017. United Stateless, a human rights advocacy group, says reinterpreting birthright citizenship would create more stateless people.
“Most stateless people don’t have any documents. They don’t have any legal identity,” says Samantha Sitterley, staff attorney at United Stateless.
If the federal government is going to, overnight, bar automatic U.S. citizenship for a new group of children, she says, “It seems like there has to be some kind of structure in place.”
To date, statelessness in the U.S. has tended to result from a mix of issues, including geopolitical change and quirks in American immigration law.
Karina Ambartsoumian-Clough, who lives in New Jersey, left the Soviet Union as a young girl in the 1990s with her parents. They sought asylum in the U.S., which was denied. Her country of birth no longer exists, and she says the country that replaced her birthplace, Ukraine, doesn’t recognize her as a citizen.
Ms. Ambartsoumian-Clough, executive director of United Stateless, recounts struggling to navigate American life when she became an adult.
“I couldn’t get a driver’s license. I couldn’t get a state ID. I didn’t have a passport,” she says. “I became completely undocumented. Not just in this country, but to the entire world.”
The Deferred Action for Childhood Arrivals program, created in 2012, allowed her to access a driver’s license and work permit. And a dozen years after marrying a U.S. citizen, she’s now a green-card holder, which offers her a path to naturalization. Yet she still remains stateless and unable to leave the country.
“We need to ring the alarm,” she says, referring to the birthright citizenship order. It’s going to “create children born in this country that have to experience this agony.”
Not everyone believes the birthright citizenship order would have such a dramatic effect, however. Many countries offer citizenship through parentage. So, many children who would no longer be eligible for U.S. citizenship should be eligible for citizenship elsewhere, says Andrew Arthur, resident fellow in law and policy and the Center for Immigration Studies, which advocates for a more restrictive U.S. immigration system.
“There are a number of logistical issues that would come with a restrictive interpretation of the 14th Amendment,” he says. “But I don’t really think that [statelessness] would be one.” However, he adds, Congress could step in and “give those individuals status.”
New hoops for new parents
Besides a potential increase in stateless individuals, narrowing the definition of birthright citizenship would have other practical consequences, experts say.
Without a federal birth registry, state and local governments are, at the moment, primarily responsible for handling the documentation required when infants are born. Federal agencies rely on that information when issuing Social Security numbers and passports.
The added bureaucracy could increase the time and financial burden on new parents in the U.S.
The narrower definition of birthright citizenship could cost new parents, at a minimum, about $3,000 per child, according to an analysis by attorney Margaret Stock. Her estimate is based on the current cost to file a citizenship-certification form, along with legal fees.
“The system is not set up for this, for people to be undocumented at the moment of their birth,” says Ms. Stock, whose practice is focused on immigration and citizenship law. Worst-case scenarios she envisions include immigration authorities trying to detain and deport babies, which could dissuade would-be workers from coming to the U.S.
The justices will hear arguments on May 15. A decision is expected by the end of June.
