On January 20, 2025, the day he took the oath of office a second time, President Donald J. Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” Fulfilling a campaign promise, the order declared that, contrary to the Fourteenth Amendment, individuals born in the United States are not citizens if their parents do not have legal permanent status.
With the help of the American Civil Liberties Union (ACLU) and other partners, three families who represented the many people endangered by this order sued the administration. Barbara, for whom the case of Trump v. Barbara is named, is an applicant for asylum from Honduras whose baby was due after the order was set to go into effect.
Trump has called for ending birthright citizenship since his first term as part of his appeal to his racist supporters who want to end Black and Brown equality in the United States. But his argument would overturn the central idea of the United States articulated in the Declaration of Independence, that we are all created equal.
The Fourteenth Amendment that established birthright citizenship came out of a very specific moment and addressed a specific problem. After the Civil War ended in 1865, former Confederates in the American South denied their Black neighbors basic rights. To remedy the problem, the Republican Congress passed a civil rights bill in 1866 establishing “[t]hat all persons born in the United States and not subject to any foreign power, excluding Indians, not taxed, are hereby declared to be citizens of the United States; and such citizens of every race and color…shall have the same right[s] in every State and Territory in the United States.”
But President Andrew Johnson, who was a southern Democrat elected in 1864 on a union ticket with President Abraham Lincoln, a Republican, vetoed the 1866 Civil Rights Bill. While the Republican Party organized in the 1850s to fight the idea that there should be different classes of Americans based on race, Democrats tended to support racial discrimination. In that era, not only Black Americans, but also Irish, Chinese, Mexican, and Indigenous Americans, faced discriminatory state laws.
In contrast to the Democrats, Republicans stated explicitly in their 1860 platform that they were “opposed to any change in our naturalization laws or any state legislation by which the rights of citizens hitherto accorded to immigrants from foreign lands shall be abridged or impaired; and in favor of giving a full and efficient protection to the rights of all classes of citizens, whether native or naturalized, both at home and abroad.”
When Republicans tried to enshrine civil rights into federal law in 1866, Johnson objected that the proposed law “comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks” as citizens, and he noted that if “all persons who are native-born already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such.” And if they weren’t already citizens, he wrote, Congress should not pass a law “to make our entire colored population and all other excepted classes citizens of the United States” when eleven southern states were not represented in Congress.
When Congress wrote the Fourteenth Amendment to the Constitution, it took Johnson’s admonition to heart. It did not confer citizenship on the groups Johnson outlined; it simply acknowledged that the Constitution had already established their citizenship. The first sentence of the Fourteenth Amendment reads: “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.”
The Fourteenth Amendment became part of the U.S. Constitution in 1868. Then, in 1882, during a period of racist hysteria, Congress passed the Chinese Exclusion Act agreeing that Chinese immigrants could not become citizens. Nonetheless, even then the Supreme Court upheld the citizenship of their children.
Wong Kim Ark was born around 1873, the child of Chinese parents who were merchants in San Francisco. In 1889 he traveled with his parents when they repatriated to China, where he married. He then returned to the U.S., leaving his wife behind, and was readmitted. After another trip to China in 1894, though, customs officials denied him reentry to the U.S. in 1895, claiming he was a Chinese subject because his parents were Chinese.
Wong sued, and his lawsuit was the first to climb all the way to the U.S. Supreme Court, thanks to the government’s recognition that with the U.S. in the middle of an immigration boom, the question of birthright citizenship must be addressed. In the 1898 U.S. v. Wong Kim Ark decision, the court held by a vote of 6–2 that Wong was a citizen because he was born in the United States.
Immigration scholar Hidetaka Hirota of the University of California, Berkeley, explains that the government went even further to protect children born in the U.S. In 1889 the Treasury Department—which then oversaw immigration—decided that a native-born child could not be sent out of the country with her foreign-born mother. Nor did the government want to hurt the U.S. citizen by expelling her mother and leaving her without a guardian. So it admitted the foreign-born mother to take care of the citizen child.
The Treasury concluded that it was not “the intention of Congress to sever the sacred ties existing between parent and child, or forcibly banish and expatriate a native-born child for the reason that its parent is a pauper.”
It seemed the law was settled.
Then, in May 2023, then–presidential candidate Donald J. Trump released a video promising that on “Day One” of a new presidential term, he would issue an executive order that would end birthright citizenship. He claimed that the understanding that anyone born in the United States is automatically a citizen is “based on an historical myth, and a willful misinterpretation of the law by the open borders advocates.” His assertion came from recent writings by right-wing operatives claiming that the accepted understanding of the Fourteenth Amendment is wrong.
As soon as he took office, he issued the executive order saying that individuals born in the United States are not citizens if their parents do not have legal permanent status.
One judge after another has sided against Trump on this issue, and on April 1, 2026, when the Supreme Court held oral arguments on the case, Trump became the first president ever to attend such arguments, breaking precedent to take a seat in the front row of the Supreme Court’s public seating area alongside then–attorney general Pam Bondi and Commerce Secretary Howard Lutnick. He apparently showed up at the Supreme Court to try to intimidate the three judges who owe their seats on the bench to him, pressuring them into supporting his own radical reworking of one of the key principles of our nation. He left after an hour and a half, before Cecillia Wang, the ACLU lawyer arguing for the plaintiffs, began to speak.
Today the Supreme Court under Chief Justice John Roberts upheld birthright citizenship. But, as Jonathan V. Last of The Bulwark notes, the Supreme Court should never have taken this case. The lower court judges who heard the case were appalled that the administration was attacking the clear terms of the Constitution. Judge John Coughenour, who was appointed by President Ronald Reagan, called Trump’s executive order “blatantly unconstitutional” and said: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order.”
And yet the vote to uphold the Fourteenth Amendment was not unanimous; it was 6 to 3. And one of those six justices upholding birthright citizenship, Brett Kavanaugh, wrote that his objection to Trump’s attack on birthright citizenship was based not in the Constitution, but rather in his belief that Trump’s executive order violates a law. If Congress rewrote that law, he wrote, he would be willing to overturn birthright citizenship.
Four of nine Supreme Court justices are willing to rewrite the Constitution by fiat.
Although the court’s decision simply upheld the conditions that have been in place for more than a century, MAGA is treating it as a dramatic and dangerous change. “Now that [the Supreme Court] has opened the floodgates for foreign invaders to flock across our borders and spawn, the only choice we have is to triple down on immigration enforcement,” wrote right-wing podcast host Matt Walsh. “Militarize the border. Mass deportations. Round every illegal up. Don’t pull back when the lesbian activists start screeching about it. Use whatever force is necessary. There is no other option.”
