Supreme Court skeptical of Trump birthright citizenship order, Roberts questions argument in landmark case

A majority of Supreme Court justices on Wednesday signaled skepticism toward President Donald Trump’s executive order ending so-called birthright citizenship, pressing the administration's lawyer overconstitutional concerns during oral arguments.

In Trump v. Barbara, the court is considering an executive order Trump signed on his first day back in office that seeks to end automatic citizenship for nearly all persons born in the U.S. to undocumented parents, or to parents with temporary non-immigrant visas in the U.S. 

Lawyers for the Trump administration and the ACLU squared off before the justices over whether the order can override more than a century of precedent.

"Addressing illegal immigration has been a cornerstone of Trump’s domestic policy, and underscoring the stakes of the case, Trump attended a portion of oral arguments."

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In what proved to be a telling exchange, Chief Justice John Roberts told U.S. Solicitor General D. John Sauer, minutes after arguments began, that he viewed a key argument from the administration as "quirky."

Roberts said he was having a hard time squaring an example the Trump administration provided, which cited certain individuals who were not granted citizenship under the 14th Amendment, such as children of ambassadors, to the "whole class of illegal aliens" in the U.S. today. "I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples," Roberts said.

"We're in a new world now," Sauer told him moments later. Sauer noted that "some 8 billion people are one plane ride away from having a child who's a U.S. citizen."

"It's a new world, but it's the same constitution," Roberts said in response.

The exchange previewed what proved to be an overarching reluctance from justices on the high court to allow the executive order to stand, including several conservative justices who were seen as key swing votes in the case. Justices Samuel Alito and Clarence Thomas appeared the most likely to side with Trump in the case.

As expected, arguments focused heavily on precedent set in the 1898 Supreme Court case, United States v. Wong Kim Ark, which established birthright citizenship protections for persons "domiciled," or born on U.S. soil.

Justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch appeared skeptical of the Trump administration's arguments, albeit to varying degrees.

They used their time to press Sauer on key issues centered on precedent, enforcement, and the text of the citizenship clause and laws passed by Congress. Justice Brett Kavanaugh cited the passage of the 1952 Immigration and Nationality Act (INA), noting that it essentially mirrors the text of the 14th Amendment and text of the 1898 case.

"One might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship, or the scope of citizenship, should be," he said, telling Sauer after a brief back-and-forth: "I am not seeing the relevance as a legal constitutional interpretative matter," he told Sauer, after a brief back-and-forth.

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Shortly before arguments adjourned, Justice Brett Kavanaugh told the ACLU's lawyer: "If we did agree with you on Wong Kim Ark, that could be just a short opinion."

The case, he said, brings to the forefront questions about how laws should be read, and if they should be limited only to situations that lawmakers envisoned at the time of their passage, or whether they should be applicable in future situations, even if the situations were unimaginable at the time.

Alito pointed to an argument from his former colleague, the late Supreme Court Justice Antonin Scalia.

Scalia, he said, had "imagined an old theft statute that was enacted well before anybody conceived of a microwave oven. And then afterwards, someone is charged with the crime of stealing a microwave oven," he added. "And this fellow says, ‘Well, I can't be convicted under this, because the microwave oven didn't exist at that time.’"

"There's a general rule there, and you apply it to future applications," Alito said, to which Sauer emphatically agreed.

Justice Clarence Thomas, though less vocal during arguments, also appeared to embrace the narrower reading of the 14th Amendment shared by the administration.

Justices also posed tough questions to the ACLU's legal director, Cecillia Wang, who argued the case on behalf of migrants. Their questions focused more on clarifying details, however, than they did on the underlying arguments.

Wang, for her part, argued Wednesday that birthright citizenship is "enshrined" in the 14th Amendment, and sets what she described as a "fixed, bright-line rule [that] has contributed to the growth and thriving of our nation."

"It comes from text and history. It is workable, and it prevents manipulation," Wang said. "The executive order fails on all those counts."

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The oral arguments come as President Donald Trump has embraced a hardline posture on immigration enforcement in his second presidential term — including seeking to end birthright citizenship, an issue on which he campaigned on in his successful 2024 reelection campaign.

Trump's attendance underscored the importance of the case to him and marked the first time in U.S. history that a sitting U.S. president has attended arguments before the high court.

Clad in a red tie and dark suit, Trump was quiet for the duration of oral arguments — in accordance with strict Supreme Court rules — and appeared focused on the arguments made by Sauer.  Attorney General Pam Bondi was also in attendance, as was Commerce Secretary Howard Lutnick. 

Chief Justice John Roberts did not acknowledge Trump during arguments, and proceedings were otherwise conducted without fanfare or interruption. 

Trump left the court shortly after Sauer presented his case, and did not comment publicly as he departed.

A ruling in Trump's favor would represent a seismic shift for immigration policy in the U.S., and would upend long-held notions of citizenship, which Trump and his allies argue are misguided. Critics argue that the order is unconstitutional and unprecedented — warning that, if implemented, it could impact an estimated 150,000 children born in the U.S. annually to noncitizens. 

A decision from the high court is expected by late June.