Birthright citizenship has real problems. Trump was still wrong. | Opinion

On June 30, the Supreme Court struck down President Donald Trump's executive order reinterpreting birthright citizenship.

The majority opinion, written by Chief Justice John Roberts and joined by four more justices in full, held that "children born in the United States to parents unlawfully or temporarily present are 'subject to the jurisdiction' of the United States and are citizens at birth under the Fourteenth Amendment's Citizenship Clause." Justice Kavanaugh concurred in the judgement but disagreed on the central constitutional question.

The nation's highest court got this one right. The Constitution doesn't let a president rewrite the 14th Amendment by decree ‒ not even one with legitimate grievances about how birthright citizenship works in practice.

The Supreme Court was right to prevent Trump's scheme

At the start of his second term, Trump signed an executive order attempting to redefine birthright citizenship, excluding children of illegal immigrants and other nonpermanent residents from its protection.

Birthright citizenship is guaranteed by the 14th Amendment, which states that "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."

The administration argued that the 14th Amendment has never granted citizenship to every child born on U.S. soil ‒ that it has always carved out an exception for those not "subject to the jurisdiction thereof."

More than 150 years of precedent and legal understanding ran against that argument, leaving Solicitor General John Sauer with an uphill battle.

Much of the oral arguments in April hinged on who counts as "subject to the jurisdiction thereof." Sauer argued that the phrase requires recipients of birthright citizenship to be "domiciled" in the United States ‒ meaning their parents intend to become permanent residents. ACLU National Legal Director Cecillia Wang argued for the status-quo reading.

But in the majority opinion, Roberts wrote, "The Citizenship Clause's key phrase ‒ 'subject to the jurisdiction' ‒ refers to the power of the United States to govern those within its territory. ... The scope of that power was settled largely by Schooner Exchange v. McFaddon, where Chief Justice Marshall explained that 'jurisdiction' referred to 'the full and complete power of a nation within its own territories,' 'susceptible of no limitation not imposed' by the nation itself."

Justice Clarence Thomas wrote the principal dissent. Harkening back to the ratification of the 14th Amendment, he argued, "Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority."

Thomas later contrasted that idea with the question at hand: "The same could not be said for the children of foreign temporary visitors. Foreign temporary visitors were attached to their home country, lacked similar bonds to this country, and would not be called upon in time of war."

Trump has a point. He's still wrong.

America's birthright citizenship policy is unusually generous – only 32 countries in the world have similar policies – and it creates real incentives for people abroad to travel here just to give birth.

Birthright citizenship has produced real policy problems, among them the phenomenon of "anchor babies": nonresidents traveling to America, legally or otherwise, to give birth so their children become U.S. citizens. One of the biggest drivers of illegal immigration is the hope of a better life for your kids ‒ an understandable motivation, but removing the citizenship incentive would likely reduce it.

Roughly 9% of American births fall into categories that Trump's reinterpretation would have affected, including children of illegal immigrants but also "birth tourists."

Birth tourism itself is a small share of that, with estimates ranging from 20,000 to 26,000 births annually ‒ less than 1% of all American births. But it's still worth addressing.

The practice has grown particularly among Chinese nationals, some of whom have used maternity-hotel operations in the United States (several of which have faced federal charges) to secure citizenship for their children.

While there are legitimate policy reasons behind the administration's push to narrow birthright citizenship, Trump went about it the wrong way. He tried to override the Constitution by executive order ‒ or, at the very least, hand the Supreme Court a vehicle to do it for him.

The court declined. "Citizenship, then and now, was the right to have rights ‒ to freely participate in our political community," the chief justice wrote. "The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land.' We keep that promise today."

Whether birthright citizenship in its current form is good policy is beside the point. If the administration wants it changed, it must go through the proper channels. A constitutional amendment is the only legitimate way to rewrite the Constitution's meaning.

Dace Potas is an opinion columnist for USA TODAY and a graduate of DePaul University with a degree in political science.

This article originally appeared on USA TODAY: Birthright citizenship has real problems. Trump was still wrong. | Opinion

Reporting by Dace Potas, USA TODAY / USA TODAY

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This story was originally published June 30, 2026 at 12:20 PM.