Outlook Explains | US Supreme Court Upholds Birthright Citizenship, Strikes Down Trump's Order

On his first day back in office on January 20, 2025, US President Donald Trump signed an executive order stating that, after a 30-day implementation period, babies born in the US would not automatically receive citizenship documents if their parents had entered the country illegally or were undocumented immigrants.

The order was upheld on Tuesday by the Supreme Court now in a 6-3 landmark ruling.

It ruled that people born in the United States are citizens regardless of their parents' immigration status and rejected Trump's executive order seeking to limit the constitutional guarantee.

In a decision written by Chief Justice John Roberts, the court ruled that Trump's directive violated the Citizenship Clause of the 14th Amendment, which grants citizenship to those born in the United States who are "subject to the jurisdiction thereof."

"Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause," the majority opinion said.

The ruling upholds a lower court decision that blocked Trump's executive order, which had instructed federal agencies not to recognise the citizenship of children born in the United States if neither parent was an American citizen or a lawful permanent resident, commonly known as a green card holder.

What Does The 14th Amendment Say?

The ruling centres on the 14th Amendment to the US Constitution, which has guaranteed birthright citizenship since 1868.

Section 1 of the amendment states: "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 adds that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

Adopted after the American Civil War, the amendment was originally intended to guarantee citizenship to formerly enslaved people, but it has since been interpreted to apply broadly to anyone born on US soil, regardless of their parents' immigration status.

Writing for the majority, Chief Justice John Roberts reaffirmed that principle, saying, "Citizenship, then and now, was the right to have rights - to freely participate in our political community." He added that "The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land'," concluding: "We keep that promise today."

Can Tourists' Children Become Citizens?

Under the 14th Amendment, children born in the United States to parents on tourist visas automatically acquire US citizenship at birth through the Citizenship Clause. The practice, often referred to as “birth tourism”, has come under increasing scrutiny, particularly from the conservative Trump administration, which argues that some foreign nationals deliberately travel to the US on tourist visas to give birth and secure citizenship for their children.

Following the Supreme Court's decision upholding birthright citizenship, Trump celebrated the ruling in a social media post, writing: “I would like to congratulate President Xi, and the Great Country of China, on their massive Birthright Citizenship WIN!”

Defending the order before the Supreme Court, Solicitor General D. John Sauer argued that automatic birthright citizenship “demeans the priceless and profound gift of American citizenship.” He said it “operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules.”

Sauer further argued that “It has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States.”

Highlighting concerns over modern travel, Sauer added: “We’re in a new world now, as Justice [Samuel] Alito pointed out, to where 8 billion people are one plane ride away from having a child who’s a U.S. citizen.”

Chief Justice John Roberts challenged the Trump administration's argument that children born to undocumented immigrants are not entitled to birthright citizenship under the Constitution, questioning its interpretation of the 14th Amendment's phrase "subject to the jurisdiction thereof."

Addressing Solicitor General D. John Sauer during oral arguments, Roberts said: “You put a lot of weight on subject to the jurisdiction thereof referring to the argument that children born in the U.S. are subject to the laws of the countries of their birth parents.”

The chief justice questioned whether the administration's historical examples justified such a broad interpretation.

“But the examples you give to support that strike me as very quirky,” Roberts said.

“You know, children of ambassadors, children of enemies during a hostile invasion, children on warships. And then you expand it to a whole class of illegal aliens who are here in the country,” he continued.

“I’m not quite sure how you can get to that big group from such a tiny and sort of idiosyncratic group.”

What About H-1B, Green Card And Student Visa Holders?

Children born in the United States to parents on temporary visas, including H-1B, L-1 and F-1 visa holders, will continue to automatically receive US citizenship at birth. The ruling is particularly significant for thousands of Indian professionals in the country who are troubled by the backlogs of green cards due to country-specific quotas. 

While parents must still maintain their own legal immigration status dependent on visas, their children, if born in the US, can be granted the citizenship. 

Birthright in other countries:

33 countries, including the United States, grant automatic birthright citizenship regardless of the parents' immigration status, according to a Pew Research Center analysis. 

Overall, 59 countries recognise some form of birthright citizenship, though only 52 confer it automatically at birth. In the others, parents must apply for their children to be declared citizens, and officials have varying degrees of discretion in whether or not to approve those applications. 

In contrast, citizenship in most countries is determined by descent rather than place of birth. According to the EUI dataset, of the 191 countries studied, 156 automatically grant citizenship only if at least one parent is already a citizen.

Many countries that recognise birthright citizenship also impose restrictions. In 17 countries, children born to non-citizen parents qualify only if their parents are legally residing in the country. Six others limit the right to specific racial, ethnic or religious groups. As a result, only 33 countries, including the US, provide unconditional birthright citizenship regardless of the parents' legal status.

Trump has rejected the ruling, saying on Truth Social that the Supreme Court upholding the Birthright Citizenship is “too bad for our Country” and that  “we can easily make it up in Congress through Legislation.”