The Supreme Court heard oral arguments for over two hours on April 1, probing whether President Donald Trump had violated the Constitution with his order restricting birthright citizenship.
The case, Trump v. Barbara, focuses on a portion of the 14th Amendment known as the citizenship clause that says, “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.”
During oral arguments, the justices asked whether the amendment was intended to cover the children of illegal immigrants and others whose parents were temporarily in the United States.
They also questioned their own precedent and how Congress had spoken about the issue. Here are some of the key takeaways from the arguments.
Justices Critique Trump’s Policy
The justices questioned the government’s argument in favor of upholding the executive order, suggesting the order may be hard to interpret and enforce.
Justice Neil Gorsuch suggested there would be administrative burdens if the government had to assess the domicile status of every person born in the country. Domicile refers to the place a person intends to reside permanently.
It is unclear whether the husband’s or the wife’s would govern, and “what if they’re unmarried?” he said. “Do we have to do this for every single person?”
Chief Justice John Roberts said the examples the government offered to bolster its interpretation of “subject to the jurisdiction thereof” were “very quirky,” ranging from ambassadors’ children to children of enemies invading the country.
Roberts said it is difficult to leap from those “idiosyncratic examples” to a broad class of noncitizens without straining the meaning of the citizenship clause.
Gorsuch suggested the government was making a mistake in justifying the order based on United States v. Wong Kim Ark (1898), the precedent that recognized birthright citizenship in its current form.
“I’m not sure how much you want to rely on Wong Kim Ark,” he said, an apparent reference to the fact that the government is using selective aspects of the precedent to justify the executive order.
Importance of Domicile
Roberts, Justice Samuel Alito, and Justice Elena Kagan focused on how often the word “domicile” appears in United States v. Wong Kim Ark during arguments.
The landmark 1898 ruling held that a child born in the United States to parents who were permanent residents is a U.S. citizen.
Roberts noted that “domicile” is referenced 20 times in the opinion, raising questions about its significance. “Isn’t it at least something to be concerned about?” he asked.
Cecillia Wang, arguing on behalf of those challenging the executive order, acknowledged that Wong Kim Ark’s parents were domiciled in the United States but emphasized that the court’s decision did not hinge on that fact. Instead, she argued, the ruling turned on the location of birth, making domicile “irrelevant.”
Justice Ketanji Brown Jackson echoed the view that domicile was not central to the holding, noting the decision established birthright citizenship regardless of a person’s permanent residence.
“In the case, birthright citizenship applies independently of residence or any intention to remain,” Jackson said.
Congress’s Intent
Many of the justices’ questions indicated their decision would be heavily informed by how Congress had discussed the 14th Amendment and birthright citizenship.
Justice Brett Kavanaugh noted that a portion of the 14th Amendment gave Congress power to enforce its provisions. That section could be important for when the justices review whether Trump is violating the Immigration and Nationality Act.
That law, passed in the 20th century, used the same phrasing as the 14th Amendment. However, documents from that time indicate that Congress didn’t intend to use that language to limit citizenship based on domicile.
Speaking to Wang, Kavanaugh asked why the court shouldn’t just rule on the basis of what Congress did rather than the constitutional issues. Wang said she was open to either legal path to a victory for her side.
‘Revisionist’ History?
Determining Congress’s intent could entail looking at its statements from not just the 20th century, but also the post-Civil War period when the amendment was ratified.
During oral arguments, the attorneys referenced statements by members of Congress.
U.S. Solicitor General D. John Sauer and Alito also emphasized the phrasing of the Civil Rights Act of 1866, which was passed just two years before the 14th Amendment was ratified. That law provided citizenship for individuals born in the United States “and not subject to any foreign power.”
“Wouldn’t it be very odd if the citizenship test in the 14th Amendment were broader than the citizenship test in the 1866 Civil Rights Act?” Alito asked.
Kagan, at one point, suggested that Sauer was advancing a “revisionist” view of history because Wong Kim Ark was based on English legal tradition, which she said provided a broader view of birthright citizenship.
By contrast, Alito suggested that historical sources might not have envisioned the situation the Trump administration faced.
“What we’re dealing with here is something that was basically unknown at the time when the Fourteenth Amendment was adopted, which is illegal immigration,” Alito said.
‘Birth Tourism’ Impacts Are Low Priority
One of the administration’s primary justifications for its policy was to deter birth tourism, or the practice of foreign mothers traveling to give birth in the United States so their children can receive citizenship.
Roberts seemed to downplay this factor, asking Sauer, “You do agree that that has no impact on the legal analysis before us?”
Other practical effects of Trump’s policy came up as well. Wang, for example, said that “thousands of American babies will lose their citizenship.”
Alito said that people may have decided to stay in the United States and establish a permanent home despite being subject to removal at any time. “That raises a humanitarian problem,” he said.
This article by Matthew Vadum, Sam Dorman, and Jackson Richman appeared April 1, 2026, in The Epoch Times.