Contributor: Birthright citizenship should never have been in question

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The Supreme Court handed down the final decisions of its term on Tuesday and they reflected what we have seen all year: It is a very conservative court, and although it usually will rule in favor of President Trump, there are times when it will say no to unprecedented claims of presidential power.

On the last day of the term, the court pleased conservatives by allowing states to prohibit transgender athletes from participating in sports corresponding to their gender identity, but, importantly, it also invalidated Trump’s executive order limiting birthright citizenship.

On culture war issues, the Supreme Court again showed that it is solidly conservative. In West Virginia vs. B.P.J., the justices ruled 6-3 that state governments may bar transgender girls and women from participating in girls’ and women’s sports. Justice Brett M. Kavanaugh wrote the opinion for the court and concluded: “The Equal Protection Clause allows schools to maintain separate teams for female and male athletes. Schools may determine eligibility for women’s and girls’ teams based on biological sex.”

Justice Sonia Sotomayor in a vehement dissent said that ultimately the case depended on a factual question: Does allowing transgender girls and women to play in sports that correspond to their gender identity give them an unfair competitive advantage? Sotomayor said that the court should have sent the case back to the lower courts to determine this, explaining that “West Virginia, and any other state actor, can deny B.P.J. and others like her these experiences simply because it thinks they have an inherent athletic advantage, even if the facts show that they do not. In the end, to the court, the facts do not matter, even though the consequences are serious.”

This case fits a larger pattern as the six conservative justices have shown their consistent hostility to rights for transgender individuals. In March, in Chiles vs. Salazar, the court was clear that a Colorado law prohibiting conversion therapy for gay, lesbian and transgender youth was unconstitutional. Last year, the court upheld a Tennessee law prohibiting gender-affirming care for transgender youth and allowed Trump to bar transgender individuals from serving in the military.

But the Supreme Court on Tuesday also handed a rare loss to the president in the area of immigration law, striking down his effort to limit birthright citizenship. Up until now, the court had repeatedly sided with Trump’s efforts to restrict immigration. For example, last week, the court ruled in favor of Trump in a pair of 6-3 decisions that allowed him to end temporary protected status for Haitians and Syrians, likely leading to summary deportation of more than 300,000 individuals, and to also bar individuals from coming to the United States seeking amnesty.

But on Tuesday, in Trump vs. Barbara, the court declared unconstitutional Trump’s executive order issued on Jan. 20, 2025, his first day back in office, which provides that only those born to citizens or those with green cards are U.S. citizens. Under this executive order, a baby would not be a citizen if it was born to an undocumented immigrant or to a person in the U.S. on a visa.

This should have been an easy case for the Supreme Court. When the Constitution was penned in 1787, the founders followed English law and determined that everyone born in the country was deemed a citizen. This was followed until the Supreme Court’s tragic 1857 decision in Dred Scott vs. Sandford, which held that enslaved individuals were property of their owners and that they were not U.S. citizens, even if they had been born in the country.

The first sentence of the first section of the 14th Amendment, adopted in 1868, was meant to expressly and unquestionably overrule this decision. It declares 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.”

In 1898, in United States vs. Wong Kim Ark, the Supreme Court ruled that this means what it says and that all born in the U.S. are American citizens, with the limited exception of babies born to foreign diplomats and to soldiers of invading armies.

Chief Justice John G. Roberts Jr. — writing for a majority that included Justices Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson — traced exactly this history in striking down the Trump executive order. The surprise in light of this history was that four conservative justices would have upheld the constitutionality of the president’s action, though Kavanaugh would have found that it violates a federal statute.

The case is enormously important for the approximately 250,000 babies each year who would be denied citizenship under the executive order. And if Trump could redefine the Constitution’s definition of citizenship, he could then potentially could do this retroactively, revoking the citizenship of millions of individuals who were born to parents here on visas or who were undocumented.

Quite significantly, this decision, like the ruling in February striking down Trump’s tariffs, shows that the conservative court is at times willing to rule against him. But it also comes just one day after the court greatly expanded presidential powers to fire any executive branch official. By my count, there have been 31 rulings since Jan. 20, 2025, that have involved challenges to Trump’s actions, most on the emergency docket, and the court has ruled in his favor 25 times.

Still, the decisions on birthright citizenship and tariffs should not be minimized: The court demonstrated that it remains an essential guardrail to protect our democracy.

Erwin Chemerinsky is the dean of the UC Berkeley Law School.

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Ideas expressed in the piece

• The article argues that the current Supreme Court term underscores a reliably conservative majority that generally supports President Trump, especially on culture-war issues, as illustrated by its decision allowing states to bar transgender girls and women from competing on girls’ and women’s sports teams.

• The article contends that this sports ruling fits a broader pattern of hostility to transgender rights, noting earlier decisions striking down a Colorado ban on conversion therapy for LGBTQ youth, upholding Tennessee’s restrictions on gender-affirming care for transgender minors, and allowing Trump’s ban on transgender service members in the military.

• At the same time, the article notes that immigration cases have largely broken in Trump’s favor, pointing to recent 6-3 decisions allowing the administration to end temporary protected status for Haitians and Syrians and to bar individuals from entering the United States to seek asylum, decisions that together reflect a judiciary broadly receptive to a hard-line immigration agenda.

• Yet the article maintains that Trump v. Barbara should have been an easy case because the Constitution’s Citizenship Clause and more than a century of precedent, including United States v. Wong Kim Ark, clearly guarantee birthright citizenship to almost everyone born on U.S. soil, with only narrow exceptions for children of foreign diplomats and invading armies[1][2][4][10].

• The article emphasizes that Chief Justice John Roberts’ majority opinion in Trump v. Barbara traces this legal and historical path—from the founding era’s adoption of English common-law principles, through the repudiation of Dred Scott by the 14th Amendment, to the Court’s explicit affirmation of birthright citizenship in Wong Kim Ark—to conclude that a president cannot, by executive order, deny citizenship to children born in the United States solely because their parents lack citizenship or permanent residence[1][2][3][10].

• The article highlights the human stakes, explaining that the executive order would have denied citizenship to roughly 250,000 babies born in the United States each year and warning that if a president could redefine constitutional citizenship prospectively, similar logic might be used to revoke the citizenship of millions of people born to parents who were undocumented or present on temporary visas.

• The article further notes that the decision aligns with lower-court rulings that had already blocked the order as unconstitutional, and it echoes civil-rights advocates who argued that stripping birthright citizenship from U.S.-born children of certain immigrants would flout the text of the 14th Amendment, longstanding Supreme Court precedent, and federal statutes such as 8 U.S.C. § 1401[5][8][11].

• The article interprets Trump v. Barbara—and an earlier ruling striking down Trump’s tariffs—as evidence that even a conservative court can sometimes act as a guardrail against presidential overreach, while stressing that the broader record of 31 Trump-related cases, 25 decided in his favor and including a sweeping expansion of presidential power to fire executive branch officials, shows a judiciary that still largely advances the administration’s agenda.

• Ultimately, the article suggests that by invalidating the birthright citizenship order, the court preserved a foundational principle of American democracy: that all children born on U.S. soil, regardless of their parents’ immigration status, are equal citizens, and that this promise cannot be undone by unilateral executive action[1][2][3][4][13].

Different views on the topic

• In contrast, the Trump administration defended Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” on the ground that children born to mothers who are unlawfully or only temporarily present in the United States, and fathers who are neither citizens nor lawful permanent residents, are not constitutionally “subject to the jurisdiction” of the United States and therefore should not receive automatic citizenship at birth[6][8][10].

• Supporters of restricting birthright citizenship, including commentary from the Heritage Foundation, argue that extending citizenship to children of undocumented immigrants reflects a fundamental misunderstanding of the 14th Amendment and that the phrase “subject to the jurisdiction thereof” was never meant to cover individuals whose parents lack legal immigration status[9].

• These critics further contend that automatic citizenship for children of unauthorized migrants incentivizes illegal border crossings, contributes to what they describe as “anchor babies,” and strains public services in communities where large numbers of U.S.-born children of noncitizen parents require education, healthcare, and social benefits, so they view measures like Trump’s order as necessary to curb unlawful immigration and reduce fiscal burdens[7][9].

• Some restrictionist scholars and advocates maintain that precedents such as Wong Kim Ark should be read narrowly as protecting only the children of lawfully resident noncitizens, or that these decisions were wrongly decided, and they call for revisiting or limiting those rulings to allow Congress or the executive branch greater authority to define citizenship for the U.S.-born children of people without permanent legal status[9][12].

• Additionally, opponents of broad birthright citizenship note that several countries have moved away from unconditional jus soli and argue that tying citizenship more closely to parental status would better align the United States with these systems, criticizing the Supreme Court’s rejection of Trump’s order as entrenching an expansive and, in their view, historically unfounded interpretation of the Citizenship Clause instead of returning to what they see as the Constitution’s original understanding[9].