On Wednesday morning, the Supreme Court heard arguments in Trump v. Barbara<\/em>, a case challenging President Donald Trump\u2019s 2025 executive order banning birthright citizenship. Justices seemed skeptical of the administration\u2019s argument, but by taking up birthright citizenship at all, they showed how much ground nativists have gained since Trump\u2019s first term. The 14th Amendment is quite clear: \u201call 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.\u201d Trump seeks to overturn this and create a new, effectively stateless American underclass, and he\u2019s gotten alarmingly far.<\/p>\n<\/div>\n Hours after being sworn back into office for his second term, Trump issued an executive order titled \u201cProtecting the Meaning and Value of American Citizenship.\u201d Under the order, children born to undocumented mothers \u2014 or to women in the country on non-immigrant visas \u2014 would no longer be citizens upon birth, unless the children\u2019s fathers were citizens or permanent residents. The order\u2019s provisions would take effect 30 days after it was issued. It was immediately challenged in court and several federal injunctions prevented its implementation, meaning birthright citizenship remains the law of the land for now.<\/p>\n<\/div>\n Trump\u2019s efforts hinge on the meaning of a specific clause: \u201csubject to the jurisdiction thereof.\u201d The administration contends that noncitizens and those who don\u2019t have permanent residency are not subject to the jurisdiction of the United States, since they\u2019re actually loyal to a foreign power. This interpretation would reverse not only centuries of US law but also precedent set by English common law, leaving hundreds of thousands of children<\/a> without status or stateless<\/a> upon birth. Karen Tumlin, the director of the Justice Action Center, called the case a \u201ccanary in the coalmine for our democracy\u201d: if Trump can end birthright citizenship with the stroke of a pen, then no constitutional protection is safe.<\/p>\n<\/div>\n All but the most conservative justices seemed unconvinced. Their questions largely focused on two landmark decisions. One was Dred Scott v. Sandford<\/em>, the 1857 case in which the court decided that enslaved people were not citizens \u2014 which the 14th Amendment was ratified partly to overturn. The other was United States v. Wong Kim Ark<\/em>, an 1898 case in which the court ruled that, despite the Chinese Exclusion Act, the American-born children of Chinese nationals were indeed US citizens.<\/p>\n<\/div>\n After Justice Clarence Thomas asked Sauer how the citizenship clause responds to Dred Scott<\/em>, Sauer acknowledged that the 1857 decision \u201cimposed one of the worst injustices in the history of this court.\u201d But he argued that Congress specifically ratified the 14th Amendment to grant citizenship to \u201cnewly freed slaves and their children\u201d who, according to Sauer, had \u201ca relationship of domicile\u201d to the United States and no \u201crelationship to any foreign power.\u201d<\/p>\n<\/div>\n Nineteenth-century legislators, Sauer argued, couldn\u2019t have foreseen the problem of birth tourism. \u201cThere are 500 \u2014 500 \u2014 birth tourism companies in the People\u2019s Republic of China whose business is to bring people here to give birth and return to that nation,\u201d Sauer said. The current interpretation of birthright citizenship \u201ccould not possibly have been approved by the 19th century framers of this amendment,\u201d he said. \u201cWe\u2019re in a new world,\u201d he continued, \u201cwhere 8 billion people are one plane ride away from having a child who\u2019s a US citizen.\u201d<\/p>\n<\/div>\n Justice Neil Gorsuch, who was questioning Sauer, appeared unswayed. \u201cIt\u2019s a new world,\u201d he agreed, but \u201cit\u2019s the same Constitution.\u201d<\/p>\n<\/div>\n \u201cIt\u2019s a new world,\u201d Gorsuch said, but \u201cit\u2019s the same Constitution\u201d<\/p>\n<\/div>\n<\/div>\n Chief Justice John Roberts called Sauer\u2019s examples of existing exceptions \u2014 including children of ambassadors or enemies during a hostile invasion \u2014 \u201cvery quirky\u201d and not necessarily comparable to\u201ca whole class of illegal aliens who are here in the country.\u201d Justice Elena Kagan noted that most of Sauer\u2019s brief focused on people who are temporarily in the country on visas \u2014 but Trump\u2019s executive order was clearly intended to restrict immigration, and the president has said so himself.<\/p>\n<\/div>\n In 2019, Trump called birthright citizenship<\/a> a \u201cmagnet for illegal immigration.\u201d Last year, presidential adviser Stephen Miller said the US-born children of immigrants are just as much of a problem as the immigrants themselves. \u201cWith a lot of these immigrant groups, not only is the first generation unsuccessful,\u201d Miller said in a Fox News interview, citing the Somali-American community, which the administration would soon target in Minneapolis<\/a>, as an example. \u201cYou see persistent issues in every subsequent generation. So you see consistent high rates of welfare use, consistent high rates of criminal activity, consistent failures to assimilate.\u201d<\/p>\n<\/div>\n The administration has sought to restrict legal immigration in all its forms: it implemented a steep fee<\/a> for H-1B work visas, has signaled it may end a work program for international students<\/a>, and enacted a travel ban on several countries that is even affecting World Cup players<\/a>. The operation is barefacedly racist. The president famously complained<\/a> about \u201call these people from shithole countries\u201d who migrate and expressed his desire to have \u201cmore people from Norway.\u201d Last year, he cut the refugee resettlement cap<\/a> to just 7,500 and prioritized the resettlement of white South Africans. The Department of Homeland Security has linked the \u201chomeland\u201d<\/a> to a decidedly white vision of Manifest Destiny that, like debates about birthright citizenship, harkens back to the nineteenth century.<\/p>\n<\/div>\n Experts are broadly<\/a> in<\/a> agreement<\/a> that most justices weren\u2019t convinced by the administration\u2019s argument, but it\u2019s not clear exactly how the court will rule.<\/p>\n<\/div>\n If the court did hand Trump an unexpected victory, a series of grim questions would immediately come into play \u2014 starting with when the change kicks in. The order was supposed to be implemented on February 19, 2025, thirty days after Trump signed the order, and would have gone into effect if not for a number of federal injunctions. \u201cIf the court sides with Trump, it will have to decide on a date on which to begin applying the president\u2019s interpretation of the 14th amendment,\u201d C\u00e9sar Cuauht\u00e9moc Garc\u00eda Hern\u00e1ndez, a professor of civil rights and civil liberties at the Ohio State University College of Law, told The Verge<\/em>. \u201cAnyone born on or after that date and described in Trump\u2019s order would be treated as a migrant rather than a U.S. citizen.\u201d<\/p>\n<\/div>\n Sauer asked the court to apply Trump\u2019s executive order \u201cproactively\u201d and not retroactively, and backdating the change to 2025 would pose a number of problems, calling the citizenship of millions of children into question.<\/p>\n<\/div>\n The Trump administration is trying to narrow who counts as an American while simultaneously pushing for policies that prevent noncitizens from participating in public life. The administration has tried to prohibit states from offering in-state tuition<\/a> to undocumented immigrants who live there, revoked accreditation<\/a> for training centers that work with noncitizen truckers, and has broadly sought<\/a> to turn America into a \u201cpapers, please\u201d country.<\/p>\n<\/div>\n Trump was in the audience<\/a> during Wednesday\u2019s arguments, making him the first sitting president to attend oral arguments before the Supreme Court. His presence may have intended to intimidate skeptical justices into taking his side. Norman Wong, a direct descendant of Wong Kim Ark, was also outside the courthouse, according to the New York Times<\/em><\/a>. Wong and his family embody the stakes of this case, and he had a message for the justices: \u201cThey will be shamed for history if they get this wrong.\u201d<\/p>\n<\/div>\n\n