Supreme Court appears ready to strike down Trump’s birthright citizenship limit as he takes part in debate

Conservative and liberal judges questioned whether Trump’s order declaring that children born to parents who are illegally or temporarily in the United States are not U.S. citizens is constitutional or federal law.

The arguments lasted more than two hours in a packed courtroom that included not only Trump, the first sitting president to argue before the U.S. Supreme Court, but also Attorney General Pam Bondi and Commerce Secretary Howard Lutnick, as well as a seat reserved for the justice’s guest, actor Robert De Niro.

Trump spent more than an hour in the court hearing arguments from Deputy Attorney General D. John Sauer, the Republican administration’s top Supreme Court lawyer. The president left shortly after attorney Cecilia Wang began a speech defending broad birthright citizenship.

After the court adjourned, Trump posted on Truth Social: “We are the only country in the world stupid enough to allow ‘birthright’ citizenship!” In fact, about three dozen countries, almost all in the Americas, guarantee citizenship to children born on their soil.

“Did this happen in the delivery room?” asked Judge Ketanji Brown Jackson, delving into the logistics of how the government actually determines who is entitled to citizenship and who is not.

Chief Justice John Roberts said Sauer was relying on a bizarre exception to citizenship to make a broad argument against people who are here illegally. “I’m not quite sure how you get such a large group from such a small and unique example,” Roberts said.

Justice Clarence Thomas sounds like the most likely of the nine justices to side with Trump.

“How much of the debate surrounding the Fourteenth Amendment had to do with immigration?” Thomas asked, noting that the purpose of the amendment was to grant citizenship to black people, including freed slaves.

The justices heard Trump’s appeal of a lower New Hampshire court’s ruling striking down citizenship restrictions, one of several courts that has blocked them. These restrictions are not yet in effect anywhere in the country.

The case is another test of Trump’s assertions of executive power and goes against longstanding precedent for a court that has largely ruled in the president’s favor, with some notable exceptions, and Trump responded with nakedly personal criticism of the judges. A final ruling is expected in early summer.

Trump signed birthright citizenship on the first day of his second term as part of his Republican administration’s broad crackdown on immigration.

Birthright citizenship is Trump’s first immigration-related policy to reach the courts for a final ruling. Judges previously blocked global tariffs imposed by Trump under emergency powers laws, which have never been used in this way.

Trump reacted angrily to the tariff decision in late February, saying he was ashamed of the judges who ruled against him and calling them unpatriotic.

On Sunday, he took to his Truth Social platform to preemptively lash out at the court. “Birthright citizenship is not about the rich in China and the rest of the world who want their children, and hundreds of thousands more, to ridiculously become citizens of the United States of America for pay. It’s about the babies of slaves!” the president wrote. “Stupid judges and justices don’t make a great country!”

The Fourteenth Amendment was intended to ensure citizenship for black people, including former slaves, although the citizenship clause was much broader. “All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and of the state in which they reside,” it reads.

In a series of rulings, lower courts struck down the executive order because it was likely illegal under the Constitution and federal law. The rulings cited the high court’s 1898 ruling in the Wong Kim Ark case, which held that children of Chinese citizens born in the United States were citizens.

The Trump administration has argued that the prevailing view of citizenship is wrong, claiming that the children of noncitizens are not subject to U.S. “jurisdiction” and therefore are not entitled to citizenship.

Sauer wrote that the court should use the case to correct “longstanding misunderstandings about the meaning of the Constitution.”

Saul told the court that unrestricted citizenship encourages illegal immigrants and “birth tourism” where pregnant women travel to the United States to give birth.

Roberts asked Saul how important birth tourism is.

No one knows for sure, he said, adding, “But, of course, we’re in a new world now” where 8 billion people can “have a child who is a U.S. citizen” just by flying on a plane.

The chief justice responded: “It’s a new world. The constitution is the same.”

Justice Neil Gorsuch, a Trump appointee, also expressed skepticism about Sauer’s position, when the deputy attorney general said the 1898 Supreme Court case should be read to support Trump’s view of citizenship. “I’m not sure how much you want to rely on Wong Wong,” Gorsuch said.

Justice Brett Kavanaugh, another conservative appointed by Trump, suggested to Wang that the court could resolve the case in Wang’s favor or issue a “brief opinion” saying that the ruling in the Wong Kim Aok case was correct, meaning Trump’s order was unconstitutional.

Or, he said, a judge could avoid the constitutional issue and find that the order is illegal under federal law.

Wang told the justices that no court has accepted the Trump administration’s arguments, and lawyers for pregnant women whose children would be affected by the order said the Supreme Court should not be the first to do so.

Roberts said the word was used 20 times in the 1898 decision. “Isn’t that something worth at least caring about?” he asked.

Wang said the Chinese parents in the case did settle in the United States, but the decision was not based on that fact.

Overall, though, the intensity of the questions asked by the justices decreased over the course of her presentation, which is often a sign of what the court will do.

More than a quarter of a million babies born in the United States each year will be affected by the executive order, according to research from the Migration Policy Institute and Penn State University’s Population Research Institute.

While Trump’s rhetoric and actions have focused primarily on illegal immigrants, birthright restrictions also apply to people living in the U.S. legally, including students and applicants for green cards or permanent resident status.