Trump is trying to end birthright citizenship status in the US. Is that constitutional? - explainer

However, questions remain about the constitutionality of Trump’s initial executive order, which told US agencies not to recognize the citizenship of children born in the US if neither parent is an American citizen or a legal permanent resident.

The justices took up a Justice Department appeal of a lower court's ruling that blocked Trump's executive order.

In a class-action lawsuit brought by parents and children whose citizenship is threatened by the directive, the lower court ruled that Trump's policy violated the US Constitution's 14th Amendment and a federal law codifying birthright citizenship.

The 14th Amendment of the US Constitution, ratified by Congress in 1868, states that “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.”

It was initially intended to ensure that formerly enslaved African Americans had US citizenship. It also provided all citizens with “equal protection under the laws.”

The Trump administration has since asked the court to reexamine the case based on the phrase "subject to the jurisdiction thereof,” meaning that the amendment would exclude those who are not permanent or legal residents of the US.

The administration has asserted that citizenship is granted only to the children of those whose "primary allegiance" is to the United States, including citizens and permanent residents.

Such allegiance is established only through "lawful domicile," which government attorneys define as "lawful, permanent residence within a nation, with intent to remain."

Therefore, it is assumed that the administration is not moving to change the amendment's text, but rather to set a new precedent for its interpretation and enforcement.

While the text of the 14th Amendment clearly states that birthright citizenship is legal, Trump campaigned on ending it, claiming that it would curb “birth tourism” and illegal immigration.

In June, a 6-3 majority of the court limited, but did not eliminate, lower courts' power to block presidential policies while judges review their legality.

In essence, the June ruling will limit the future power of lower US courts to strike down presidential policies that they deem unlawful.

Sauer has since argued that the citizenship clause “was adopted to grant citizenship to freed slaves and their children, not to the children of illegal aliens, birth tourists, and temporary visitors. The plain text of the Clause requires more than birth on US soil alone.”

Challengers of the case argue that the order is not only unconstitutional but also directly violates Supreme Court precedent.

“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,” said ACLU National Legal Director Cecillia Wang.

Lawyers backing a Democrat-led charge told the court that the order would cause chaos in America, seeing as the administration has not clarified how it would be implemented.

Local governments that issue birth certificates in the US do not always include the parents' citizenship status or nationality.

“The Executive Order and Petitioners’ efforts to implement it threaten chaos and strike at our Nation’s most solemn promise — equality under the law and full citizenship for those born on American soil,” the lawyers said.

In January, 22 states sued the federal government over the initial order. Yet, some 24 Republican-led states have expressed support for the measure, NPR reported.

The appeal will likely be argued in court in the spring and decided by the end of June 2026.