Trump’s plan to end birthright citizenship could be decided by the Supreme Court

Donald Trump’s team is crafting an executive order to end birthright citizenship for the children of undocumented immigrants, a monumental move the president-elect’s allies say is a key step in their long-term strategy: getting the issue before the Supreme Court.

The effect of Trump’s order would be to exclude the children of undocumented immigrants and short-term visitors to the U.S. from the right to citizenship by birth that is established under the 14th Amendment. And while there are few details on what exactly he would do and how sweeping the action would be, immigration restrictionists say Trump could do several things, including directing the State Department to refuse to issue passports to children without proof of the parents’ immigration status or the Social Security Administration to withhold Social Security numbers.

He could also direct agencies providing welfare and public benefits to U.S. citizens to deny these benefits to those claiming birthright citizenship, whose parents are in the country illegally. Details of the plan remain unclear, but it would deliver on a promise Trump has made over his entire political career: to restrict birthright citizenship.

Implementation would be no easy feat, but the Trump administration likely wouldn’t get far anyway — at least at first. Any move Trump makes to deny citizenship to children born in the United States to undocumented parents will be immediately challenged by pro-immigration groups and civil rights organizations. And conservative immigration groups are optimistic that the issue could eventually wind up before the nation’s highest court, which they hope will rule in their favor.

“What will happen is, the government will get sued, and it’ll go up to the Supreme Court, and we’ll finally get a final decision on this issue,” said Hans von Spakovsky, a senior legal and judicial studies fellow at the conservative Heritage Foundation. “The last case on this was 1898, so it’s a very long time ago. And I actually think when the Supreme Court looks at this, they will realize and uphold what Trump does.”

Already, Trump’s talk of ending birthright citizenship is setting the stage for one of the first major legal battles of his second term. And his effort could be one of his first major actions to drastically reshape the immigration system upon returning to office.

When asked about the plans, Trump’s transition team referred POLITICO to the president-elect’s comments during his interview with NBC News last weekend.

The president-elect has repeatedly said he plans to end birthright citizenship in the U.S. on Day One — reiterating this promise during the interview that aired Sunday — while providing no details about how he would get around the 14th Amendment of the Constitution.

Birthright citizenship stems from the year after the Civil War ended when Congress wanted to ensure that children of formerly enslaved people were granted U.S. citizenship. The amendment reads that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The accepted interpretation today, backed by a multitude of legal scholars on both sides of the political aisle, is that a child born in the United States is automatically a citizen, even if the parents do not have legal status (this excludes foreign diplomats working in the country).

But conservative immigration groups have argued that this should not apply to the children of undocumented immigrants because of the “subject to the jurisdiction thereof” language, which they argue has been misinterpreted.

The Supreme Court has never directly ruled on the question, but that could change if the high court takes up any potential legal challenges. The last time justices examined the issue was during an 1898 case, United States v. Wong Kim Ark, when the court ruled that a man born in San Francisco to parents from China — who were lawfully admitted into the country — was a U.S. citizen. Restrictionists interpret this ruling to mean that only those residing in the U.S. with permission meet the 14th Amendment requirement of being “subject to the jurisdiction” of the United States.

Immigration to the U.S. has surged in recent years, with DHS estimating that 11 million people are in the U.S. without legal authorization. Trump used fears over illegal immigration throughout the 2024 presidential campaign, both with his base and voters overall, and both Democratic and Republican state leaders have struggled to manage the influx of migrants coming to their states. When Trump said his administration may seek to end birthright citizenship in 2018, a Pew Research Center analysis of government data found that about 250,000 babies were born to undocumented immigrants in 2016, a decline from the early 2000s.

“It’ll be good to get it back in front of the Supreme Court, have it relitigated,” said Michael Hough, director of federal relations at NumbersUSA, a group that works to reduce both legal and illegal immigration. “The intention wasn’t for the system we have now, and the urgency to is that, whatever number you accept — 10 million, 15 million illegal immigrants come across — well, all the children that they’re having are going to become citizens of the United States.”

While there’s no guarantee the Supreme Court will back restrictionists’ interpretation of the 14th Amendment, conservatives hope the bench, filled with three Trump-appointed justices, would restore what they view as the intended meaning. And they’re bracing for a potentially yearslong battle in the courts to get that answer.

“In the end, this is going to be a long-term process. It’s probably one that will have to extend into the [JD] Vance administration,” said Dan Stein, executive director of the Federation for American Immigration Reform, a restrictionist group. “I mean, this is not going to be all resolved in the first 100 days.”

During Trump’s interview Sunday — in the same breath as vowing to end birthright citizenship — the president-elect also suggested he’d look for ways to allow people brought to the U.S. illegally as children to stay in the country. He tried to rescind the Deferred Action for Childhood Arrivals program protecting them from deportation during his first term, but the Supreme Court blocked that effort.

Immigration advocates say the interview shows how the incoming president’s stance on immigration is riddled with contradictions. Over the last year, pro-immigration groups have been preparing for a second Trump administration’s efforts to overhaul the nation’s immigration system, analyzing Trump’s proposals, drafting legal briefs, coordinating messages and organizing aid for immigrants and asylum-seekers — and they don’t buy the idea that Trump is looking for compromise.

“We take Trump at his word and his track record,” said Beatriz Lopez, co-executive director of the Immigration Hub. “We recognize this set-up: It’s Lucy and the football where citizenship for Dreamers is a possibility if Democrats are willing to change the constitution to end birthright citizenship and deport the parents of Dreamers and millions of other undocumented people. That’s not a compromise; that’s a ransom letter.”