President Donald J. Trump, who watched from the gallery Wednesday in unprecedented fashion while the government made its case, signed an on his first day back in office last year banning birthright citizenship for the children of undocumented immigrants. His plan would also exclude babies born here whose parents are temporary residents.

Birthright citizenship was enshrined in the Constitution in 1868 by the 14th Amendment, which states: “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.” 

Solicitor General D. John Sauer, arguing for the government, told the court he recognized the amendment was adopted just after the Civil War to grant citizenship to those newly freed from enslavement and their children, “whose allegiance to the United States had been established by generations of domicile here.” 

It did not, however, grant citizenship to the children of temporary visitors or illegal aliens, he said. And, Sauer maintained, unlike newly freed people, “those visitors lack direct and immediate allegiance to the United States.”

“For aliens, lawful domicile is the status that creates the requisite allegiance,” he said. “For decades following the clause’s adoption, commentators recognized that the children of temporary visitors are not citizens, and illegal aliens lack the legal capacity to establish domicile here. Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship.”

Several of the justices, including Chief Justice John Roberts, appeared skeptical of Sauer’s reasoning, peppering him with pointed questions and casting doubt on key elements of his argument. 

Many believe Trump is likely to lose this constitutional battle, though he has that hinged on presidential powers. Conservatives hold a 6-3 majority, with three of the justices in that bloc — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — Trump appointees from his first term.

Cecilla Wang, the ACLU’s national legal director and lead attorney in the case that involves several statewide ACLUs and other legal advocacy groups, argued on behalf of the mothers and babies who would be affected by Trump’s order. In a less than three-minute opening statement, she said the 14th amendment is critical to our nation’s understanding of itself.

“Ask any American what our citizenship rule is, and they’ll tell you: Everyone born here is a citizen alike,” said Wang, whose Taiwanese parents came to the U.S. as graduate students. “That rule was enshrined in the 14th Amendment to put it out of the reach of any government official to destroy.”

Birthright citizenship was codified and protected by the , which provided that “person[s] born in the United States, and subject to the jurisdiction thereof shall be nationals and citizens of the United States at birth.” 

This came decades after another critically related ruling, the 1898 Supreme Court case , which challenged the citizenship of a Chinese-American San Francisco resident. Ark, who was denied re-entry into the U.S. after visiting his parents in China, was found to be protected by the 14th amendment. 

Wang believes that case bolsters her argument. She said, too, Trump’s executive order would throw the country into chaos. The president left the court minutes into her remarks. 

“The 14th Amendment’s fixed, bright-line rule has contributed to the growth and thriving of our nation,” she said. “It comes from text and history. It is workable, and it prevents manipulation. The executive order fails on all those counts. Swathes of Americans would be rendered stateless. Thousands of American babies will immediately lose their citizenship. And if you credit the government’s theory, the citizenship of millions of Americans — past, present and future â€” could be called into question.”

While some members seemed more amenable to her arguments, conservative Justice Samuel Alito asked her about babies born in the United States who do not automatically become citizens, including the children of ambassadors, for example. 

“If those who framed and adopted the 14th Amendment had wanted to limit the citizenship test to just those specific groups that you concede fall outside the birthright rule, why didn’t they refer to those groups?” he asked. 

Wang said the answer was baked into the 14th amendment by the language that guarantees citizenship outside a few rare exceptions of those not “subject to the jurisdiction of the United States.”

Gorsuch said Wang had “good stuff on her side.” She, in turn, said the Trump administration’s proposed approach to citizenship contradicts what earlier leaders sought to achieve. 

“We can’t take the current administration’s policy considerations into account … to radically reinterpret the 14th amendment,” Wang said, adding she believed those who ratified it did, in fact, consider future immigration. “Contrary to the government’s arguments now, they wanted to grow this country, make sure we had a citizenry, populate the military and settle the country.”

But Sauer, the solicitor general, said birthright citizenship, as it stands, is “a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws, but also jump in front of those who follow the rules.” 

And, he said, there is another problem. 

“It has spawned a sprawling industry of birth tourism as unaccounted thousands of foreigners from potentially hostile nations have fought to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States,” he said. 

When asked whether the government knew how many women came to the U.S. specifically to give birth, Sauer could not provide a solid figure. 

Several of the justices also questioned Sauer about his key argument that established legal domicile must exist to qualify for birthright citizenship, asking whether it referred to the domicile of parents or their offspring.

“Under the minimum definition of domicile,” Alito said, “a person’s domicile is the place where he or she intends to make a permanent home.” 

Normally, Alito said, one would think a person who is subject to arrest and removal could not establish domicile. But, he said, we have a unique situation in the United States where people may live here for years and be subject to deportation yet, “have in their minds made a permanent home here and have established roots — and that raises a humanitarian problem.”

Lower courts on numerous occasions have found Trump’s order unconstitutional and blocked its implementation. Since it was issued, Trump has launched a massive deportation campaign that has harmed students and schools and become with the American people — particularly after federal agents shot and killed two U.S. citizens in Minneapolis in January.

“This is potentially the most important civics lesson of a generation,” said Adam Strom, co-founder and executive director of Re-Imagining Migration. “Ultimately, birthright citizenship is about who gets to claim their place in this country … stripping that in a moment of aggressive immigration enforcement could render (children) stateless.”

Such a person is not recognized as a citizen of any nation and therefore has very limited protection. The U.N. estimated in 2019 that there were more than 4.2 million stateless  people around the world but the actual number is believed to be more than . 

Alejandra Vázquez Baur, a fellow at The Century Foundation, a progressive think tank, and director of the said undoing birthright citizenship would be a “disaster” for hospitals and a “nightmare for families” — regardless of their status — as they would have to prove citizenship for their newborn child to have basic human rights.   

“It’s no coincidence that they’re seeking to strip birthright citizenship protections for U.S.-born children of immigrants while simultaneously attacking the foundational right to education for all granted by Plyler v. Doe,” she said, referring to the 1982 Supreme Court ruling that a child cannot be denied a public education based on their immigration status. 

“Together, these attacks undermine our democracy and threaten to create an underclass of millions of children with uncertain futures and no rights in this country,” she said. “It is fundamentally immoral, unconstitutional, anti-child and un-American.”

The court is expected to render a decision in late June or early July.

The 14th Amendment has long been interpreted to guarantee the right of citizenship to nearly all children born on U.S. soil. Three district courts concluded Trump’s Jan. 20 executive order taking away that right was likely unlawful and issued universal preliminary injunctions barring the order from taking effect.

In a 6-3 vote Friday, the high court’s conservative majority found the lower court judges overstepped. 

“When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too,” reads the majority opinion written by Justice Amy Coney Barrett. 

The court ruled that Trump’s birthright order would not go into effect for 30 days. During that time, the possibility exists that the plaintiffs could successfully reargue for another nationwide injunction under the new rules set by the Supreme Court. But if they fail, birthright citizenship may no longer be automatic in the 28 states that have not challenged the president’s directive.

Trump, appearing in the White House briefing room Friday, said “the Supreme Court has delivered , the separation of powers and the rule of law.” 

The decision does not address the constitutionality of Trump’s move to end birthright citizenship, considered settled  law for nearly 160 years. But it comes at a time when the president is aggressively trying to extend his powers through a barrage of executive orders that now can no longer be as forcefully blocked across the country by a single federal judge who deems them unlawful or unconstitutional. Judges have issued since Trump took office for a second term in January, the Associated Press reported.

It also coincides with the administration’s far-reaching and controversial immigration enforcement campaign that has targeted and swept up those without secure legal status, including students. Educators and advocates are particularly concerned about the fate of young children. 

“The timing could not be worse, with increased ICE activity across the country,” said Adam Strom, executive director of Re-Imagining Migration. “As educators, this makes our jobs even harder. When you fear that your citizenship can be taken away, it’s very hard to learn.”

The ruling came just days after the Supreme Court decided on Monday to to countries other than those in which they were born. Immigrant advocates say both decisions run counter to core American values. 

David C. Baluarte, CUNY School of Law professor and senior associate dean for academic affairs, said if Trump is able to implement his birthright order, some children born in the United States to undocumented parents or those temporarily in the U.S. would be in great jeopardy.

“That means they will be an undocumented immigrant here, and everywhere, in perpetuity — or unless they can convince some country to give them citizenship,” Baluarte said.

Walter Olson, senior fellow at the right-of-center Cato Institute, said now is a “particularly bad” time for the high court to weaken a critical means to check the power of a “scofflaw administration.” 

Olson said the president, through this particular directive, signaled from the outset of his second term that he was seeking to be “very radical” in his authority. He said the birthright issue was a remarkable choice because it was not at all up for debate. 

“The law was very clear on behalf of birthright citizenship,” Olson said. “So, the executive order deserved the immediate unpopularity and outrage that came with it. It’s settled law.” 

reads: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” Trump argued it “has always excluded” people born in the United States but not “subject to the jurisdiction thereof,” including those whose mother was unlawfully present in the country and whose father was not a citizen or lawful permanent resident at the time of the child’s birth. 

This same restriction applies to those children born to mothers whose presence in the U.S.  is lawful but temporary, including those visiting under the Visa Waiver Program or on a student, work or tourist visa — if the father is also not a citizen or lawful permanent resident, Trump contends.

Margo Schlanger, law professor and director of the Civil Rights Litigation Clearinghouse at the University of Michigan Law School, said the Supreme Court left open three pathways through which the lower courts can block nationwide policies by the Trump administration they believe to be unlawful.

The first is through a lawsuit filed against the government by a state. The second involves a nationwide class action lawsuit, which can be cumbersome, complicated and time consuming: It’s often difficult to prove any group of people have enough in common to constitute a class. The third would allow a lower court to “set aside” a rule it deems unlawful under the . 

Schlanger notes that every one of the three remaining pathways has “major” procedural obstacles. She predicts that the state plaintiffs will go back to their district courts and argue that even under these new Supreme Court rules, they still have grounds for a nationwide injunction because that is the only way to guarantee complete relief from an unlawful executive order. 

At the same time, she said, in one or more of the other cases, private plaintiffs might try to expand to a class. Both or either type of case could land the issue back before the Supreme Court — not for procedural arguments, but to decide the issue on its merits. 

“I don’t expect the Trump administration would win at that point,” Schlanger said. “What they were doing is using this case as an opportunity to restrict the authority of the non-Supreme Court federal courts.” 

Randi Weingarten, president of the American Federation of Teachers, said Friday’s decision leaves Americans with one less tool to fight an “out-of-control” executive branch. 

“Today, the justices have kneecapped the lower courts’ ability to protect Americans from Trump’s most pernicious policy abuses, making it far more difficult to resolve key questions by requiring additional litigation,” she said in a statement. “People need courts to protect them from this or any other administration wreaking havoc on our nation’s laws and Americans’ lives.”