Undoing the Fourteenth Amendment: Trump’s Attack on Birthright Citizenship and Judicial Power

Image Credit: CAIR California

On his first day back in office, President Donald Trump signed a sweeping executive order aiming to end birthright citizenship for children of undocumented immigrants and foreign residents. The order declared that only children born to at least one U.S. citizen or legal permanent resident would automatically receive citizenship, radically redefining the established interpretation of the Fourteenth Amendment. The policy immediately faced legal challenges, setting off a constitutional clash reaching the Supreme Court that will have implications not only for birthright citizenship but also for the judiciary’s ability to curb presidential overreach through nationwide injunctions.

Trump’s executive order was part of a broader immigration crackdown, fulfilling a campaign promise driven by nationalist rhetoric. The policy denies citizenship to the children of undocumented immigrants and those on temporary visas. Civil rights groups and legal scholars swiftly challenged the order, arguing that it directly violates the Fourteenth Amendment, which guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

Federal courts in Massachusetts, Maryland, and Washington State quickly issued nationwide injunctions, blocking the policy’s enforcement. Judge Leo Sorokin of the U.S. District Court in Massachusetts rejected the administration’s argument that the injunctions should be geographically limited, reasoning that pregnant women could easily cross state lines to give birth, rendering state-specific rulings ineffective. Sorokin and other judges emphasized that the executive order defied over a century of legal precedent, particularly the landmark 1898 Supreme Court ruling in United States v. Wong Kim Ark, which affirmed that nearly all children born on U.S. soil—regardless of their parents’ immigration status—are citizens. The American Civil Liberties Union (ACLU) also filed lawsuits, including one in New Hampshire, resulting in another injunction. ACLU attorney SangYeob Kim underscored the broader constitutional stakes, stating, “The U.S. Constitution ensures that no politician can decide who among those born in this country is worthy of citizenship.”

Facing mounting judicial resistance, the Trump administration turned to the Supreme Court, filing emergency applications to lift the nationwide injunctions. Acting Solicitor General Sarah Harris argued that such broad orders improperly extended beyond the plaintiffs in the cases, claiming that they unfairly prevented the government from enforcing its policies nationwide. Harris urged the justices to restrict injunctions to only the plaintiffs directly involved in the lawsuits or, at most, to residents of the states where the cases were filed. "Universal injunctions have reached epidemic proportions since the start of the current administration," Harris wrote, framing them as a dangerous expansion of judicial power. The administration contends that the judiciary is interfering with the executive branch’s constitutional authority, hampering the president’s ability to enforce immigration policy. If the Supreme Court sides with Trump, it could mean the immediate enforcement of his Executive Order in certain states, thus severely restricting judges' ability to impose nationwide blocks on executive actions and making it harder for courts to rein in presidential overreach in future legal battles.

The Supreme Court will rule on the legality of nationwide injunctions and, in the future, may additionally rule on the constitutionality of the Executive Order itself, which hinges on the interpretation of the Fourteenth Amendment. The Trump administration has argued that the amendment’s phrase, “subject to the jurisdiction thereof”, excludes children of undocumented immigrants, claiming they are not fully under U.S. jurisdiction. This interpretation directly challenges United States vs Wong Kim Ark, where the Supreme Court ruled that a man born in the U.S. to Chinese immigrants was a citizen by virtue of his birth on American soil. The ruling affirmed that birthright citizenship applies to nearly all children born in the country, with narrow exceptions for children of foreign diplomats or enemy combatants. 

The concept of birthright citizenship itself has deep historical roots. It is derived from English common law and was codified in the Fourteenth Amendment in 1868 to guarantee citizenship for freed slaves and overturn the infamous Dred Scott v. Sandford decision, which denied citizenship to African Americans. Since then, birthright citizenship has been a bedrock principle of American law, reaffirmed by Congress in the Immigration and Nationality Act of 1952. The Trump administration’s effort to reinterpret this longstanding principle through executive order is widely viewed by legal scholars as a direct assault on the Constitution, bypassing both congressional authority and the constitutional amendment process.

The Supreme Court’s ruling on the nationwide injunctions could reshape the judiciary’s role as a check on executive power. If the Court upholds the administration’s argument, it would significantly curtail judges’ ability to block unconstitutional policies nationwide, concentrating that power exclusively in the hands of the Supreme Court. It is not yet clear how the conservative majority court will rule on the legality of nationwide injunctions, as there is little past precedent around this issue. However, in the past year, several justices, including Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh,  have criticized the practice of nationwide injunctions. The case also carries the possibility of a direct ruling on the constitutionality of Trump’s executive order itself. Should the Court decide to weigh in on the merits of the policy, the decision could directly impact the citizenship status of millions of children born to undocumented immigrants. A ruling in Trump’s favor could erode the legal protections guaranteed by the Fourteenth Amendment and redefine who is entitled to American citizenship.

Trump’s attack on birthright citizenship is part of a broader pattern of executive overreach and defiance of judicial authority. In a related incident, the administration recently ignored a federal judge’s order halting the deportation of Venezuelan migrants, instead invoking wartime powers under the Alien Enemies Act of 1798—despite the U.S. not being at war. The administration deported the migrants without judicial review or due process, flouting the court’s injunction. Trump further called for the impeachment of Judge James E. Boasberg, who issued the ruling, escalating his confrontation with the judiciary. These actions reflect a dangerous expansion of executive power—one that disregards traditional checks and balances and the judicial branch. By seeking to limit the reach of nationwide injunctions, Trump is not only challenging judicial authority but attempting to weaken one of the few remaining legal safeguards against unconstitutional executive actions.

The Supreme Court’s ruling on Trump’s executive order will have sweeping implications—not only for birthright citizenship, but also for the separation of powers and judicial oversight. At its core, this case underscores the precarious state of constitutional checks and balances under the Trump presidency. With the executive branch asserting increasingly expansive powers and the judiciary’s authority under threat, the outcome of this legal battle will determine whether the courts remain a meaningful check on presidential overreach—or whether they become increasingly powerless in the face of a growing executive branch.

Sylvie Watts is a junior concentrating in political science and computer science. She is a writer for the Brown Undergraduate Law Review and can be reached at sylvie_watts@brown.edu.

Maia Eng is a junior at Brown University studying English and Political Science. She is a blog editor for the Brown Undergraduate Law Review and can be contacted at maia_lourdes_eng@brown.edu.