A sweeping executive order challenges the 14th Amendment’s guarantee of birthright citizenship—reviving legal arguments rooted in the nation’s post-slavery past and testing the limits of presidential power.
Listen to Goodwin read this piece aloud and discuss its significance on the latest episode of On the Issues, “Pulling a Page From the Confederacy: Trump and Birthright Citizenship.”
The Supreme Court recently heard oral arguments in Trump v. Barbara, a landmark case that seeks to fundamentally rewrite the substance and meaning of one of the most important provisions of the Constitution—birthright citizenship—by presidential fiat. For over 150 years, birthright citizenship has been protected by the 14th Amendment and widely recognized as one of the most important, fundamental rights found in the Constitution.
Fortunately, the justices appeared skeptical.
The birthright citizenship case involves a challenge to Donald Trump’s alarming executive order: Protecting the Meaning and Value of American Citizenship (EO 14160), which seeks to dramatically truncate, if not eliminate, birthright citizenship in the U.S.
Signed on Jan. 20, 2025 (the first day of his second term), the order bars citizenship for children born in the United States to mothers who are unlawfully in the U.S., as well as those whose mothers are lawfully in the U.S. but only temporarily in the country (such as with a work, student or tourist visa).
Last year, Trump’s executive order was blocked by multiple district courts across the country. They issued universal injunctions, prohibiting the executive order from going into effect anywhere in the U.S. The Trump administration then challenged the validity of universal injunctions, taking the case to the Supreme Court in Trump v. Casa. They deferred a hearing on the substance of the EO.
Now, this marks the second time a procedural or substantive challenge to the executive order is before the Supreme Court.
In Casa, the Supreme Court struck down “universal” or “nationwide” injunctions, holding that district courts could grant relief only to the parties before it or in the case of a certified class-action litigation.
At issue in Trump v. Barbara is the explicit language of the birthright citizenship clause and its substantive meaning—the first sentence of the 14th Amendment:
“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.”
Ratified in 1868, the 14th Amendment sought to address the continued invidious vestiges of slavery. Starting in 1865, after ratification of the 13th Amendment, which prohibited slavery, former Confederate states enacted numerous laws known as Black Codes, barring formerly enslaved Black people from the fundamental liberties enjoyed by free white people.
These prohibitions included vagrancy laws, banning Black people from collectively gathering in public; prohibitions on labor contracting; restrictions on owning and possessing firearms; bans on voting; restrictions on jury service; sanctions against Black people selling grains and produce; and forced apprenticeship laws—essentially the lawful stealing of Black children from their parents, thrusting them back onto plantations for years of uncompensated labor.
In his second term, with a swipe of a pen, Donald Trump seeks to wipe away one of the most important provisions of the Constitution and upend Supreme Court precedent.
As Justice Ketanji Brown Jackson asked at oral argument, “How does this work? Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under [Trump’s] rule?”
Birthright citizenship, first announced in the Civil Rights Act of 1866, and two years later ratified in the Constitution, sought to stamp out the insidious echoes of slavery brought about by these laws. For Congress, enshrining citizenship by birth in the United States Constitution was a necessary means of addressing both the discriminatory Black Codes primarily of the South and directly rebuking Dred Scott v. Sandford—a horrendous decision that claimed Black people would forever be barred from citizenship in the United States.
According to Justice Roger B. Taney in Dred Scott (1857), Black people, whether enslaved or not, were “inferior, and altogether unfit to associate with the white race.” In the Supreme Court’s view, Black people “had no rights which the white man was bound to respect.” Simply put, according to Taney, Black people were “bought and sold and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”
The Civil War, followed by the Reconstruction, radically reset America’s downward path, and birthright citizenship along with other protections in the 14th Amendment and federally enacted civil rights laws were crucial to expanding liberty, freedom and equality for all people in the United States.
As tested in the United States v. Wong Kim Ark case (1898), birthright citizenship was not exclusive to the formerly enslaved or their descendants. In that case, the Court noted that “the single question … of this opinion [is] namely, whether a child born in the United States, of parents of Chinese descent,” who at the time of birth are citizens of China, but reside in the U.S. where they are permanently domiciled, “becomes at the time of his birth a citizen of the United States.”
The Supreme Court answered in the affirmative.
… With a swipe of a pen, Donald Trump seeks to wipe away one of the most important provisions of the Constitution and upend Supreme Court precedent.
The Trump administration argues that “the 14th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States.”
Not only is this interpretation inaccurate, but it also takes a hostile view toward the 14th Amendment. Tellingly, it also presumes powers that Trump does not have. As noted by the ACLU, which argued the case, the “Constitution, not the President, defines who is a citizen.”
The Trump administration’s efforts to eliminate birthright citizenship must be understood alongside a stunning year of rash executive orders, many found unlawful and unconstitutional—already the administration has been sued 650 times.
There has also been the gutting of the Department of Justice; disregard for the rule of law, including disobeying hundreds of court rulings; and reckless federal enforcement actions that have resulted in the killings of Americans, including Alex Pretti and Renee Nicole Good.
At its core, the EO is not only a challenge to birthright citizenship but an attack on a nation that fought back against the villainy and evils of slavery and Chinese exclusion laws. It is an affront to the civil rights movement’s victory over “separate but equal” policies of the Jim Crow era—policies that sought to fasten Black people to segregationist second-class citizenship.
In the backdrop of mass deportations that specifically target people of color, Trump’s birthright citizenship executive order reeks of discriminatory intent—the very discrimination birthright citizenship was meant to prohibit. By his spate of odious executive orders, Trump is writing the modern-day version of a Confederate playbook.
