On birthright citizenship, Trump’s restrictive immigration agenda hits a rare roadblock

WASHINGTON – US President Donald Trump took the short trip from the White House to the Supreme Court with his signature priority of cracking down on immigration largely intact, given repeated interventions by the nation’s highest judicial body in his favour. By the time he left, his luck may have run out.

With Mr Trump looking on from the public section of the courtroom – a historic first for a sitting president – most of the nine justices seemed unwilling on April 1 to let him proceed with what may be the most audacious piece of his restrictive immigration agenda.

At issue during the arguments was his executive order that would deny birthright citizenship to hundreds of thousands of babies born each year on US soil.

The members of the court, led for more than two decades by conservative Chief Justice John Roberts, signalled that the administration’s arguments backing Mr Trump’s effort are legally invalid and inherently impractical.

“I do not think that Chief Justice Roberts wants to go down in history as presiding over a court that ended birthright citizenship," said Professor Kevin Johnson, an immigration law expert at the University of California, Davis.

The court, whose 6-3 conservative majority includes three justices appointed by Mr Trump, heard the administration’s appeal of a lower court’s decision that blocked his directive.

The citizenship clause

The lower court found Mr Trump’s order to be inconsistent with the US Constitution’s 14th Amendment, which long has been interpreted as granting citizenship to virtually anyone born on US soil, with some narrow exceptions including the children of foreign diplomats or members of an enemy occupying force.

The 14th Amendment’s provision at issue, called the Citizenship Clause, states: “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

Prof Johnson said the court will likely be swayed by the plain language of the Citizenship Clause and the “long, unbroken history” of birthright citizenship.

“The questions of the justices touched on some possible cracks in the rule but it remains intact,” he said.

Chief Justice Roberts labelled as “quirky” the administration’s argument that the 14th Amendment’s phrase “subject to the jurisdiction thereof” limits large categories of immigrants.

The Chief Justice also appeared to dismiss a contention by US Solicitor-General D. John Sauer, defending Mr Trump’s order, that the risk of “birth tourism” – by which foreigners travel to the United States to give birth and secure citizenship for their children – is a reason why the longstanding interpretation of the citizenship provision is wrong.

“We’re in a new world now,” Solicitor-General Sauer said. “Eight billion people are one plane ride away from having a child who’s a US citizen.”

“Well, it’s a new world,” Chief Justice Roberts replied. “It’s the same Constitution.”

Not all the justices appeared to doubt Mr Trump’s policy, however. Conservative Justice Samuel Alito, for instance, seemed receptive to the administration’s argument that birthright citizenship should be extended only to those with “lawful domicile” in the US, which lawyers for the administration define as “lawful, permanent residence within a nation, with intent to remain”.

Sweeping immigration agenda

Mr Trump’s order had instructed US agencies not to recognise the citizenship of children born in the United States if neither parent is an American citizen or legal permanent resident, also called a “green card” holder.

Mr Trump issued it on his first day back in office in January 2025, and it stood as a key part of his sweeping agenda to restrict both legal and illegal immigration.

Both it and many other immigration-related measures his administration has taken, in particular to pursue a policy of mass deportation, were quickly challenged in court.

The trajectory of the April 1 arguments contrasted with a number of actions the Supreme Court has taken that have allowed Mr Trump to implement many of these policies while the legal challenges play out.

For instance, the court has let Mr Trump end humanitarian protections for migrants, deport them to countries where they have no ties and carry out aggressive immigration raids that can target individuals based on their race or language.

In certain cases, however, the justices have ruled that the administration must treat migrants fairly, as required under the Constitution’s promise of due process.

Professor Elora Mukherjee, director of the immigrant rights clinic at Columbia University’s law school in New York, said it is not surprising that the court would rule against Mr Trump on birthright citizenship despite siding with him on other immigration issues.

“Birthright citizenship is core to our identity as a nation,” she said. “It is unlike any of the other contexts... which are not central to how all Americans live their lives and are not central to how we as a nation for generations have viewed ourselves.”

George Mason University law professor Ilya Somin, an expert on constitutional law, said the court has been overly deferential to Mr Trump on many immigration-related issues.

A defeat for the Republican President on birthright citizenship would be significant in part because “the weight of argument and precedent is strongly on one side here, more so than in most of the other cases”, Prof Somin said.

Though the court has frequently sided with Mr Trump over the past year on immigration matters and beyond, the arguments potentially foreshadow a major blow to another signature priority for the President. 

The justices in a 6-3 ruling in February struck down the sweeping global tariffs that Mr Trump pursued under a law meant for use in national emergencies.

‘Stupid people’

That ruling provoked Mr Trump to lash out at the court, calling the justices who ruled against him unpatriotic and disloyal and two of his appointees Neil Gorsuch and Amy Coney Barrett an “embarrassment to their families”.

The “Supreme Court’s not been acting very well”, Mr Trump said on April 1, adding that certain justices he appointed want to show their independence. “Stupid people,” he called them.

The fact that Mr Trump was present in the elegant courtroom is unlikely to make a difference in the outcome of the case. A ruling is expected by the end of June.

As he watched the proceedings, however, Mr Trump might have spotted a marble frieze above the bench where the justices preside in their black robes.

One of the sculpted figures depicted, with a book at his side, is known as “Majesty of the Law”. REUTERS