Supreme Court Reviews Birthright Citizenship, 1940 Law Becomes Key Factor

Key Takeaways

• The Supreme Court will hear a challenge to a Trump administration order that would end automatic U.S. citizenship for most children born in the United States to noncitizen parents.
• It has been reported that lower courts have ruled the order likely violates the 14th Amendment’s Citizenship Clause; justices may instead decide the case on a separate 1940 federal statute that defines citizenship.
• Deciding on the 1940 law is a narrower route that would avoid resolving the constitutional definition of “subject to the jurisdiction thereof.”
• The outcome affects children born in the U.S. to noncitizen parents and could shape whether Congress must act to change the law.

Case background

It has been reported that the dispute centers on an administrative order signed on the president’s first day back in office that would strip automatic citizenship from children born in the United States when both parents are neither U.S. citizens nor lawful permanent residents. The 14th Amendment to the U.S. Constitution—specifically the Citizenship Clause—says that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.” The phrase “subject to the jurisdiction thereof” has long been interpreted to exclude only certain narrow categories (for example, children of foreign diplomats); the administration argues a narrower meaning that would exclude children of people in the country unlawfully.

The 1940 statute — a narrower path for the Court

Instead of resolving the constitutional question, the Supreme Court may rule the order invalid under a federal statute enacted in 1940 that defines who is a U.S. citizen and uses language nearly identical to the 14th Amendment. It has been reported that some justices, following Chief Justice John Roberts’s principle of judicial restraint, may prefer a statutory ruling if that resolves the dispute without a sweeping constitutional decision. The Trump administration contends the 1940 law should be interpreted consistently with its view of the Constitution; challengers counter that the order violates both the constitutional clause and the existing statute.

What this means for families and Congress

For people directly affected—children born in the United States to noncitizen parents and their families—the stakes are high. U.S. citizenship confers rights including the right to vote, a U.S. passport, and protection from deportation; a ruling that revokes automatic birthright citizenship would create legal uncertainty for millions born on U.S. soil and could leave families subject to removal or long-term statelessness unless Congress or the courts provide a solution. Plaintiffs say they would accept a statutory victory that blocks the order, but such a result would also leave open a path for Congress to change the law; proposals to limit birthright citizenship already have increased in the House, with sponsor Rep. Brian Babin gaining more co-sponsors in recent years.

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