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The Trump administration on Friday asked the U.S. Supreme Court to review President Donald Trump’s executive order restricting birthright citizenship, a move that could redefine what has become known as a bedrock constitutional guarantee.
The request comes as the American Civil Liberties Union (ACLU) and allied groups filed a class action in federal court in New Hampshire, escalating a legal clash that reaches back to the Reconstruction era.
At stake is whether the U.S. will continue to recognize nearly all children born on its soil as citizens, a principle the Supreme Court decided in “United States v. Wong Kim Ark” (1898).
The outcome could reshape the 14th Amendment’s Citizenship Clause, which has long been understood to guarantee citizenship to virtually every child born on U.S. soil regardless of parents’ status.
FEDERAL APPEALS COURT WEIGHS TRUMP BIRTHRIGHT CITIZENSHIP ORDER AS ADMIN OUTLINES ENFORCEMENT DETAILS
Demonstrators hold up a sign in favor of birthright citizenship outside the U.S. Supreme Court in Washington, D.C., June 27. (Alex Wroblewski/AFP via Getty Images)
Trump’s order seeks to narrow that interpretation to children of U.S. citizens and lawful permanent residents. If upheld, it could deny automatic citizenship to many children born in the U.S. each year.
In “Wong Kim Ark,” the Court ruled that a San Francisco-born man whose Chinese parents were barred from naturalization was nonetheless an American citizen under the 14th Amendment. That decision cemented “jus soli,” or citizenship by birth on American soil, with narrow exceptions for children of diplomats, foreign occupiers and sovereign tribal nations.
Critics of the executive order argue that the text and history are clear. UC Berkeley law professor John Yoo has written that the Framers borrowed British “jus soli” traditions and that Reconstruction lawmakers expanded citizenship to ensure formerly enslaved people and their descendants were fully included.
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The Trump administration has asked the Supreme Court to review an executive order that would end birthright citizenship, (Getty Images)
“It is simply beyond doubt that the Framers operated by borrowing and adopting common law principles … to adopt an interpretation that rejects that meaning, we would want to see historical evidence that the Framers had adopted a radically new interpretation,” Yoo wrote.
Supporters of the order counter that the phrase “subject to the jurisdiction thereof” requires full and lawful political allegiance, not simply being born on U.S. soil. John Eastman, who advised on drafting the policy, has argued that the Constitution requires both birth on U.S. soil and “complete” jurisdiction. “Complete” means allegiance to the U.S., not to another sovereign.
The order has already faced multiple challenges. Federal courts initially blocked it with broad injunctions, though the Supreme Court later narrowed those rulings.
In a recent dissent, Justice Sonia Sotomayor suggested class actions could provide a way forward for challengers, writing that “parents of children covered by the Citizenship Order would be well advised to file promptly class action suits … and lower courts would be wise to act swiftly.”
Trump’s executive order on birthright citizenship has already faced multiple challenges. (AP Photo/Jacquelyn Martin)
The ACLU’s new lawsuit in New Hampshire reflects that strategy.
“Every court to have looked at this cruel order agrees that it is unconstitutional … we are fighting to make sure President Trump cannot trample on the citizenship rights of a single child,” said Cody Wofsy, an attorney with the ACLU.
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“This executive order directly opposes our Constitution, values, and history, and it would create a permanent, multigenerational subclass,” added Devon Chaffee, executive director of ACLU-NH.
Karla McKanders of the Legal Defense Fund called the order “an unlawful attempt to entrench racial hierarchies,” saying, “Citizenship is a right afforded to us by birth, not by privilege.”
Fox News Digital has requested comment from the White House and the ACLU and its partner organizations.
