The June 27, 2025 decision of the Supreme Court, where it put limits on the power of the lower courts to grant nationwide injunction has suddenly put lot of children of immigrants on H-1b or F-1 or J-1 or TN status or with no status in limbo. To know more about this decision of Supreme Court read out prior blog here.
https://immigration-analytics.com/2025/06/27/birthright-citizenship-ruling-by-supreme-court/
Although the Supreme Court’s decision favors President Trump by way of lower courts not able to get injunctions or stays on his executive orders nationwide, the decision does not decide in favor of Trump’s executive order to end Birthright Citizenship. Although there is bound to be confusion in the near term or for next one year, a lower court is bound to decide on merits and then ultimately the Supreme Court will end up taking up this matter in it’s next session and we could have a final decision by end of 2025 or by mid 2026. So immigrants impacted by this should not worry long term since ultimately the courts will decide against the Executive Order on merits. Till that time one should continue to see if they can get any remedy by way of becoming part of any class action law suits which is going to be filed nationwide or already filed and injunction granted. This is an evolving situation when it comes to legal strategy so stay tuned for more updates. It is going to be a waiting game for some months till Supreme Court gives a final decision.
Now that we know the Executive Order most likely will be judged unconstitutional, we give our analysis below on why we say that.
On January 20, 2025 the President issued an executive order declaring that only children born in the United States to U.S. citizen or lawful permanent resident (LPR) parents would be granted automatic citizenship at birth. The move triggered an immediate legal and political firestorm, with lawsuits filed across the country. At the heart of this controversy is the meaning of a short but powerful phrase in the 14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…”
The meaning of “subject to the jurisdiction thereof” is now being reexamined under intense scrutiny. To understand where this debate is going, we must go back in time—to the drafting of the 14th Amendment, the landmark Supreme Court decision in Wong Kim Ark, and the arguments now being made in court.
What Did the 14th Amendment Intend?
Ratified in 1868, the 14th Amendment was intended to ensure full citizenship for formerly enslaved people and their descendants following the Civil War. But its broad language—“All persons born or naturalized in the United States…”—was no accident. The drafters knew there were millions of immigrants living in the U.S. at the time, and chose not to restrict citizenship based on parentage, race, or legal status.
Senator Jacob Howard, who introduced the Citizenship Clause in the Senate, explained that it would exclude only children of foreign diplomats and enemy soldiers—individuals who are not subject to U.S. laws due to their legal immunity. Notably, immigrants were not excluded. This interpretation was later confirmed by the Supreme Court in United States v. Wong Kim Ark (1898).
Opponents at the time, such as Senator Edgar Cowan, objected to granting citizenship to children of Chinese immigrants and even Roma (Gypsies). But his objections were not adopted, and Senator John Conness of California responded clearly in favor of inclusive birthright citizenship. The final language of the 14th Amendment passed without restrictions based on a parent’s legal status.
What Does “Subject to the Jurisdiction Thereof” Mean?
This phrase is the crux of the current legal fight. President Trump and his legal advisors argue that children born to undocumented immigrants—or even those on temporary visas—are not “subject to the jurisdiction” of the U.S. because their parents owe allegiance to a foreign country.
Their argument is that “jurisdiction” means more than simply being subject to U.S. laws—it means being fully and politically subject, in a way that implies permanent allegiance. From this perspective, only the children of U.S. citizens or LPRs—who have made a legal commitment to the U.S.—would be entitled to automatic citizenship.
But this is not how courts have interpreted the clause. In Wong Kim Ark, the Supreme Court held that a child born in San Francisco to Chinese immigrant parents—who were not citizens and were not eligible for naturalization—was nevertheless a U.S. citizen at birth. The Court emphasized that being subject to the laws of the United States is the key factor, not the parent’s immigration status.
Over the years, federal appeals courts have consistently affirmed this view, including in cases like United States v. Ahumada-Aguilar (9th Cir. 2002), where the court stated plainly:
“A child born in the United States is a U.S. citizen even if his parents are in the country illegally.”
Can the Supreme Court Rethink This?
Only the U.S. Supreme Court can overturn Wong Kim Ark or reinterpret the 14th Amendment in a way that narrows birthright citizenship. Lower courts are bound by that precedent and cannot go against it. Congress also cannot override the Constitution by legislation alone; doing so would require a constitutional amendment—an extremely high bar.
So the only legal pathway to uphold the executive order would be for the Supreme Court to accept a new reading of the 14th Amendment. But this would involve overturning more than 125 years of established precedent and disrupting a foundational principle of U.S. constitutional law.
Why Did the Executive Order Include LPR Parents?
Interestingly, the executive order did not limit citizenship solely to children of U.S. citizens. It also included lawful permanent residents (green card holders). This is likely a strategic legal choice.
In Wong Kim Ark, the Court emphasized that his parents had a permanent domicile and lawful presence in the U.S. By including LPRs, the administration may be trying to mirror that case, suggesting that only people with permanent status can transmit citizenship to their U.S.-born children.
This creates a false distinction between lawfully present non-citizens and everyone else—such as asylum-seekers, students, tourists, and undocumented immigrants. But the 14th Amendment does not recognize such tiers of lawful presence. The Constitution refers only to whether someone is “born in the United States” and “subject to its jurisdiction.”
How Did Government Lawyers Defend the Order in Court?
In defending the executive order, government attorneys likely made several arguments: that “jurisdiction” requires full political allegiance, and undocumented immigrants or tourists do not meet this threshold; that the president has authority under immigration law and Article II of the Constitution to regulate the issuance of passports and recognition of citizenship; that Wong Kim Ark only applied to lawfully present immigrants, and doesn’t extend to children of undocumented individuals; and that the executive order is not denying citizenship per se, but establishing a review process before citizenship is recognized for certain births.
But these arguments face a major constitutional obstacle: the 14th Amendment itself, and the consistent interpretation of the Citizenship Clause by the courts for over a century.
What Happens to Families Affected by the Order?
The executive order has already thrown hundreds, if not thousands, of families into legal limbo. Parents of babies born after February 20, 2025 have reported delays in receiving Social Security numbers, denials of passports, and other documentation being withheld while their cases are under review.
These families are now part of a growing wave of class action lawsuits, many coordinated by civil rights organizations and immigration attorneys. One justice in the recent Supreme Court case even suggested that this matter may ultimately be resolved through a nationwide class action, allowing all affected families to receive uniform relief.
Conclusion: Why the Executive Order Will Likely Fail
The executive order restricting birthright citizenship attempts to rewrite a principle that is deeply embedded in American constitutional law. The plain language of the 14th Amendment, the intentions of its drafters, and the Supreme Court’s own precedent all point to the same conclusion:
If you are born in the United States, and you are not the child of a foreign diplomat or enemy soldier, you are a U.S. citizen.
The government’s argument—that only children of citizens or LPRs are “subject to the jurisdiction”—has already been tested and rejected by the courts. And while the executive order may have been crafted carefully to avoid a head-on collision with Wong Kim Ark, it still contradicts the broader principle that citizenship by birth does not depend on the legal status of one’s parents.
Once the courts rule on the merits—and the executive order is struck down—all those affected families will be entitled to receive their Social Security numbers, U.S. passports, and full recognition as citizens. The Constitution demands no less.
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