President Donald Trump took the short trip from the White House to the U.S. Supreme Court with his signature priority of cracking down on immigration largely intact, given repeated interventions by the nation’s highest judicial body in his favor. By the time he left, his luck may have run out.
With Trump looking on from the public section of the courtroom – a historic first for a sitting president – most of the nine justices seemed unwilling on Wednesday to let him proceed with what may be the most audacious piece of his restrictive immigration agenda. At issue during the arguments was his executive order that would deny birthright citizenship to hundreds of thousands of babies born each year on U.S. soil.
The members of the court, led for more than two decades by conservative Chief Justice John Roberts, signaled that the administration’s arguments backing Trump’s effort are legally invalid and inherently impractical.
“I do not think that Chief Justice Roberts wants to go down in history as presiding over a court that ended birthright citizenship,” said Kevin Johnson, an immigration law expert at the University of California, Davis.
The court, whose 6-3 conservative majority includes three justices appointed by Trump, heard the administration’s appeal of a lower court’s decision that blocked his directive.
THE CITIZENSHIP CLAUSE
The lower court found Trump’s order to be inconsistent with the U.S. Constitution’s 14th Amendment, which long has been interpreted as granting citizenship to virtually anyone born on U.S. soil, with some narrow exceptions including the children of foreign diplomats or members of an enemy occupying force.
The 14th Amendment’s provision at issue, called the Citizenship Clause, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Johnson said the court will likely be swayed by the plain language of the Citizenship Clause and the “long, unbroken history” of birthright citizenship.
“The questions of the justices touched on some possible cracks in the rule but it remains intact,” Johnson said.
Roberts labeled as “quirky” the administration’s argument that the 14th Amendment’s phrase “subject to the jurisdiction thereof” limits large categories of immigrants.
The chief justice also appeared to dismiss a contention by U.S. Solicitor General D. John Sauer, defending Trump’s order, that the risk of “birth tourism” – by which foreigners travel to the United States to give birth and secure citizenship for their children – is a reason why the longstanding interpretation of the citizenship provision is wrong.
“We’re in a new world now,” Sauer said. “Eight billion people are one plane ride away from having a child who’s a U.S. citizen.”
“Well, it’s a new world,” Roberts replied. “It’s the same Constitution.”
Not all the justices appeared to doubt Trump’s policy, however. Conservative Justice Samuel Alito, for instance, seemed receptive to the administration’s argument that birthright citizenship should be extended only to those with “lawful domicile” in the U.S., which lawyers for the administration define as “lawful, permanent residence within a nation, with intent to remain.”
SWEEPING IMMIGRATION AGENDA
Trump’s order had instructed U.S. agencies not to recognize the citizenship of children born in the United States if neither parent is an American citizen or legal permanent resident, also called a “green card” holder. Trump issued it on his first day back in office in January 2025, and it stood as a key part of his sweeping agenda to restrict both legal and illegal immigration.
Both it and many other immigration-related measures his administration has taken, in particular to pursue a policy of mass deportation, were quickly challenged in court.
The trajectory of Wednesday’s arguments contrasted with a number of actions the Supreme Court has taken that have allowed Trump to implement many of these policies while the legal challenges play out.
For instance, the court has let Trump end humanitarian protections for migrants, deport them to countries where they have no ties and carry out aggressive immigration raids that can target individuals based on their race or language. In certain cases, however, the justices have ruled that the administration must treat migrants fairly, as required under the Constitution’s promise of due process.
Elora Mukherjee, director of the immigrant rights clinic at Columbia University’s law school in New York, said it is not surprising that the court would rule against Trump on birthright citizenship despite siding with him on other immigration issues.
“Birthright citizenship is core to our identity as a nation,” Mukherjee said. “It is unlike any of the other contexts … which are not central to how all Americans live their lives and are not central to how we as a nation for generations have viewed ourselves.”
George Mason University law professor Ilya Somin, an expert on constitutional law, said the court has been overly deferential to Trump on many immigration-related issues.
A defeat for the Republican president on birthright citizenship would be significant in part because “the weight of argument and precedent is strongly on one side here, more so than in most of the other cases,” Somin said.
Though the court has frequently sided with Trump over the past year on immigration matters and beyond, the arguments potentially foreshadow a major blow to another signature priority for the president. The justices in a 6-3 ruling in February struck down the sweeping global tariffs that Trump pursued under a law meant for use in national emergencies.
‘STUPID PEOPLE’
That ruling provoked Trump to lash out at the court, calling the justices who ruled against him unpatriotic and disloyal and two of his appointees – Neil Gorsuch and Amy Coney Barrett – an “embarrassment to their families.”
The “Supreme Court’s not been acting very well,” Trump said on Wednesday, adding that certain justices he appointed want to show their independence. “Stupid people,” he called them.
The fact that Trump was present in the elegant courtroom is unlikely to make a difference in the outcome of the case. A ruling is expected by the end of June.
As he watched the proceedings, however, Trump might have spotted a marble frieze above the bench where the justices preside in their black robes.
One of the sculpted figures depicted, with a book at his side, is known as “Majesty of the Law.”
