Supreme Court Justices Skeptical of Trump’s Challenge to Birthright Citizenship

Justices appeared to lean toward rejecting the Trump administration’s challenge to birthright citizenship during Wednesday’s oral arguments at the U.S. Supreme Court, where advocates from San Francisco showed up to defend the long-standing principle.

Despite 128 years of Supreme Court precedent holding that babies born on U.S. soil are U.S. citizens regardless of their parents’ immigration status — dating back to a case out of San Francisco — the justices agreed to hear arguments in Trump v. Barbara. The Trump administration is seeking to defend a January 2025 executive order from the president stating that, unless a child has a parent who’s a U.S. citizen or lawful permanent resident, they are not a U.S. citizen by birth.

Every lower court that has weighed in, including the 9th U.S. Circuit Court of Appeals in San Francisco, has ruled Trump’s order unconstitutional.

During oral arguments Wednesday morning in Washington, conservative justices, whose votes will be key, posed difficult questions to Solicitor General John Sauer, the federal government’s representative in the Supreme Court.

Justice Amy Coney Barrett questioned the Trump administration’s interpretation of the 14th Amendment. The administration argued the amendment was ratified specifically to grant citizenship to former slaves born in the U.S., rather than children of immigrants, regardless of their legal status, but Coney Barrett pointed out that that isn’t in the amendment text.

And Chief Justice John G. Roberts Jr. suggested that Sauer’s argument relied on outlier exceptions to the 14th Amendment to argue against broader birthright citizenship.

“I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples,” Roberts said.

The precedent behind birthright citizenship goes back to an 1898 ruling in the case brought by San Francisco-born Wong Kim Ark, who was barred from reentry under the Chinese Exclusion Act after a trip to visit family in China, even though he carried paperwork attesting to his U.S. birth.

Justices ruled in Wong’s favor, pointing to the 14th Amendment, added to the Constitution in 1868 after the abolition of slavery, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The Trump administration’s current argument seeking to restrict birthright citizenship hinges on the clause “subject to the jurisdiction thereof,” which Sauer has asserted promises citizenship only to people who are “completely subject” to the U.S. and owe “direct and immediate allegiance” to the government.

In legal filings, Sauer said the Wong Kim Ark decision has been read too generously and does not apply to the children of undocumented immigrants and people in the U.S. temporarily because that “degrades the meaning and value of American citizenship.” He wrote that that interpretation has “incentivized” illegal immigration and “birth tourism” by people who want to gain a toehold to a life in the U.S.

Among those outside the Supreme Court on Wednesday was Norman Wong. An East Bay resident and retired carpenter, Wong, 76, is the great-grandson of Wong Kim Ark.

Wong was born in San Francisco but didn’t grow up knowing the story of his ancestor or the role he played in U.S. history. He says when he first learned about Wong Kim Ark’s case 25 years ago, he thought it was “a curiosity of history” because birthright citizenship was settled law.

“I grew up knowing that I was American. All the kids that I ran around with, they knew they were American. Why? They were born here,” he told KQED ahead of the hearing. “It’s like assuming every time you breathe in and out, you get air. It was part of your whole being. We were proud to be American.”

After the Supreme Court hearing, California Attorney General Rob Bonta said birthright citizenship is foundational to American democracy and promises equality under law to all children, regardless of race, class or parental background.

“It’s a guarantee that every child born here has a personal stake in the American dream,” Bonta said. “It tells you something that President Trump willfully chose to start his second term by trying to knock down this fundamental and long-standing right. Fortunately, I believe he will fail.”

Speaking outside the courtroom, Cecillia Wang, who argued on behalf of the ACLU, said the case was “nerve-wracking,” but appeared hopeful.

“We could not be more confident that despite the policy preferences of the current administration, that this attack on what it means to be American in the most fundamental way … will be turned down,” she said.

People wait in line outside the Supreme Court Justice building to attend oral arguments on birthright citizenship, a day before the court is scheduled to address the case, on March 31, 2026, in Washington, DC. The Supreme Court is set to convene on April 1 to consider the legality of President Trump’s executive order that seeks to end birthright citizenship.

Overturning the principle of birthright citizenship would create a bureaucratic nightmare and threaten the very fabric of American society, according to Winnie Kao, senior counsel with San Francisco’s Asian Law Caucus, who is an attorney of record on the Barbara case.

“It would be a radical departure from over 120 years of precedent and understanding,” said Kao, whose organization had attorneys in court Wednesday alongside the ACLU and others. “It would be really hard for the public to understand and, I think, to accept.”

Since Trump’s executive order, Kao said her office has been fielding “powerful and upsetting” questions from people who are either undocumented or in the U.S. on temporary work or student visas.

“How do you prove citizenship for your newborn when it’s not based on a birth certificate anymore?” she said. “Parents are calling us, wondering if their baby’s going to be subject to deportation … and what will statelessness mean for my baby?”

But some in California believe the executive order would impose a useful limit on birthright citizenship. Rep. Tom McClintock, R-Elk Grove, said the increased number of migrants who entered the U.S. during the Biden administration was justification for that.

“It … brought to a head the fundamental question of whether any person in the world can break into our country, have a baby at taxpayer expense, have that baby declared an American citizen and then use that as a pretext to remain,” McClintock wrote in a Washington Times op-ed. “President Trump has issued an executive order challenging that notion for all future births.”

After Trump’s executive order, California immediately filed suit along with 23 other states, the city of San Francisco and the District of Columbia. While that case was not before the Supreme Court on Wednesday, Bonta has filed a “friend of the court” brief in the Barbara case.

He’s said that California stands to lose federal funding for key health and education programs if nearly 25,000 babies born in the state each year lose the right to citizenship because of their parentage.

The effort to repeal birthright citizenship is part of a broader campaign by the Trump administration to restrict immigration and the rights of immigrants, including increasing arrests and deportations, halting refugee admissions, stripping temporary legal status from people fleeing war and instability, and invoking a travel ban against 39 countries.

Wong, whose great-grandfather’s case established the bedrock principle, said he considers Trump’s executive order limiting birthright citizenship a first step in a larger effort to chip away at civil rights and the rule of law in this country.

“We have to stop it,” he said. “We need to be a principled people — with clear laws and clear ideas of who we are.”

Wong said he’s watched that erosion accelerate over the past 15 months, culminating in the shooting deaths this winter of two Minneapolis protesters by immigration agents. He sees parallels between the bravery of his ancestors facing down anti-Chinese bigotry in the 19th century and Renee Good and Alex Pretti standing up for immigrants today.

“They weren’t violent. They didn’t do anything that deserved their lives. … We all should stand up, because two people died for all of us,” Wong said. “Are we just going to let it happen? Or are we going to stand up? Wong Kim Ark, he stood up.”