Birthright citizenship is under attack | In Focus
Published 1:00 pm Tuesday, January 6, 2026
In January the U.S. Supreme Court is scheduled to hear a case redefining birthright citizenship.
President Trump’s first executive order in January 2025 revoked birthright citizenship for U.S.-born children of illegal immigrants.
“The new rule is not retroactive. This change in long-standing U.S. policy sparked a wave of litigation culminating in Trump v. Washington, an appeal by Trump to remove the injunction put in place by federal courts” (Morgan Marietta, “Supreme Court’s Decision on Birthright Citizenship Will Depend on its Interpretation of One Key Phrase”: 12/31/25. Yahoo.com).
The key part of the first sentence of the 14th Amendment that will be debated in SCOTUS is: “All 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…” The second sentence is also important in regard to immigration and birthright citizenship : “Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Arguments for birthright citizenship:
Those who argue for birthright citizenship note 158 years of precedent. SCOTUS has ruled again and again that citizenship is based upon birth in this country. The use of the word “any person” tells us that the child’s parents do not have to be citizens. This decision was upheld by the 1886 Yick Wo v. Hopkins decision. Yick Wo was a Chinese laundryman living in San Francisco who saw his rights taken from him by the white city government politicians. Yick Wo won in the Supreme Court because, although he was not a U.S. citizen, he still had the rights guaranteed to “any person” under due process and equal protection of the law.
Another SCOTUS decision about birthright citizenship came in 1898 in the case of United States v. Won Kim Ark. Won was born in the U.S. of noncitizen parents. He left the United States and then tried to reenter, but was prevented from doing so by the Chinese Exclusion Act. In this case, SCOTUS recognized his natural-born citizenship. (Marietta)
The problem is that the current six conservative justices will have to be convinced based upon the legal theory called “originalism”. In the Wong Kim Ark decision, the justices decided based upon “customary law of England, brought to America by the colonists.”
Arguments against birthright citizenship:
“The court’s ruling in Elk v. Wilkins in 1884 – just 16 years after the ratification of the 14th Amendment – endorses “the principle that no one can become a citizen of a nation without its consent.” By making entry into the United States without approval a federal offense, Congress has effectively denied that consent.”
Marietta also argues: “The opponents of birthright citizenship argue that the Wong Kim Ark ruling has been misrepresented. In that case, the court only considered permanent legal residents like Wong Kim Ark’s parents, but not residents here illegally or temporarily.”
The six SCOTUS conservatives have been throwing out historic precedent at a fairly frequent rate, ruling 86% of the time in the president’s favor.
The issue will be decided by conservative justices Roberts, Barrett, and Kavanaugh. It’s a given that Thomas and Alito will vote in lockstep with the President. The three liberal justices, Sotomayor, Kagen, and Brown-Jackson, will vote in favor of what they consider the clear text and past precedent.
What are the implications of overturning 158 years of history by redefining who is and is not a citizen?
1) Those born in the United States of noncitizen parents will likely lose their citizenship, making them eligible for deportation.
2) The next step in future court cases could be that naturalized citizens could also lose their status and become deportable.
3) Eventually, even native-born parents and their children could be declared noncitizens, giving the power to decide who can stay and who can be deported to the president.
The six conservative SCOTUS justices seem to be moving toward what is called unitary executive theory where great power is bestowed upon the president.
It’s my guess that their decision on this issue will be determined by the level of fear the conservatives have of the president. Republicans in Congress have already rebelled against him over the Epstein files, showing that their fear is diminishing. Anger over the One Big Beautiful Bill’s passage is growing over Medicaid and SNAP cuts and the president’s recent veto of a unanimous bipartisan bill in both Houses over supplying water to a rural Colorado community.
Voting in red districts in the last few months has swung in favor of Democrats. There is a lot of anger over the extreme actions by I.C.E. and C.B.P. toward brown-skinned people. These new trends do not bode well for Republicans in the November midterms.
The Chinese curse states: “May you live in interesting times.” That curse certainly applies to us today.
