Editor’s Note: This story was updated to reflect the U.S. Supreme Court’s decision limiting judges’ ability to delay President Donald Trump’s executive orders from going into effect.

One of the central pillars of what it means to be American is under attack.

In a potential blow to the fight to protect birthright citizenship, the U.S. Supreme Court on Friday limited judges’ ability to delay President Donald Trump’s executive orders from going into effect.

The 6-3 decision, mere weeks after thousands took to the streets across the country for the “No Kings” protests, is the latest turn in the showdown over birthright citizenship for those born to immigrants who are undocumented. In a dissent from the more liberal-leaning minority, Justice Sonia Sotomayor said the decision would “cause chaos for the families of all affected children.”

“The Order will cause chaos for the families of all affected children too, as expecting parents scramble to understand whether the Order will apply to them and what ramifications it will have,” she wrote. “If allowed to take effect, the Order may even wrench newborns from the arms of parents lawfully in the United States, for it purports to strip citizenship from the children of parents legally present on a temporary basis.”

The high court’s decision did not delve into the merits of the Trump administration’s legally questionable quest to end birthright citizenship, which was established by the 14th Amendment in a reversal of the Dred Scott decision, a ruling that barred Black people from obtaining citizenship.

With a stroke of his pen, Trump in January issued an executive order that challenges the entitlement to citizenship of all those born within our nation’s borders, without favor or prejudice. Multiple federal, lower court judges ruled that Trump’s order violated the Constitution. 

In issuing the executive order, Trump spat in the face of generations of settled precedent, shattered our standing as a land of refuge and inclusion, and in no uncertain terms, laid out a “not welcome” mat. If Trump’s order is allowed to stand, it is more than just a repudiation of a longstanding promise this nation has made to its people, and to the world. It’s also an attack on America’s vitality itself. As one of two developed nations that offer birthright citizenship, our commitment to granting the American franchise to the children of immigrants — with legal status or otherwise — is our national superpower that makes us truly exceptional. It has allowed us to evolve faster as a culture, to stay more innovative, and to preserve an able, active, and socially invested workforce longer than any of our global developed-nation peers. 

While jus sanguinis, citizenship tied to bloodline, is designed to help perpetuate an existing racial or ethnic status quo, jus soli — “right of the soil” — and currently still the law of the land, makes it possible for each generation of newborn Americans to reflect changes in the global environment. It’s what enables and perpetuates our status as a multicultural and uniquely inventive society. Study after study has shown that immigrants bring not just productive labor, but a regular flow of new ideas and fresh perspectives into our nation. At least 14% of the U.S. is foreign born, but that population is responsible for 30% of strategically critical American patents. Birthright citizenship helps to ensure that those whose American dreams help make this a more perfect union in every way imaginable can put down roots and truly be part of it. 

The outsized positive impact of immigrants and their native-born children is one reason why political scientists frequently cite the 14th Amendment’s promise of jus soli as one of a trinity of constitutional covenants that most define what it means to be American (the others being the protections for freedom of expression enshrined in the First Amendment and the right to vote guaranteed by the 15th). 

By way of evidence, consider how far-reaching the effects might’ve been if this executive order were made retroactive. Its wording seeks to strip birthright citizenship from not just the offspring of those living in the U.S. without legal status, but also children of fully legal nonpermanent residents, including asylees, green card applicants awaiting approval and those with valid student and work visas. Among those whom it might have Thanos-snapped into “uncitizen” status include former Vice President Kamala Harris — who was born to immigrant parents residing in the U.S. on student visas — but also many in Trump’s own current and former inner circle, including his new secretary of state, Marco Rubio; his erstwhile DOGE appointee Vivek Ramaswamy; and his first-term U.N. Ambassador Nikki Haley — all of whom, like Harris, would also have been made ineligible to run for president by the loss of their “natural born” citizenship. 

Credit: Photo illustration by Melissa Clavijo/The Emancipator. All photos Wikimedia Commons.

Driving the wedge 

Challenging something so integral to what it means to be American would be a heavy lift for any president, particularly a twice-impeached one who returned to office with one of the thinnest electoral mandates in modern history. But Trump’s choice to go big against birthright at the very beginning of his new term was not a wild swing, but planned and purposeful. His executive order is, in fact, the latest and loudest iteration of a conservative campaign to kill jus soli that first launched in 1991, when Republican House member from California Elton Gallegly introduced his bill seeking to amend the Immigration and Nationality Act of 1952 to confer citizenship only on children born in the U.S. to citizens or legal residents. Republicans in every Congress since have introduced similar legislation with growing levels of support. 

And they have every incentive to press on. Though these efforts haven’t succeeded legally or legislatively, they continue to deliver huge returns for the right by dividing communities of color and turning established immigrant populations against aspirational ones. As of the middle of Trump’s first stint as president, according to PRRI/The Atlantic’s comprehensive survey on American pluralism, as reanalyzed in 2024, two-thirds of Republicans and nearly half of all White Americans favored ending birthright citizenship — but so did 4 in 10 Black Americans and 3 in 10 Hispanic Americans, and a quarter of all Democrats. (Asians, despite being one of the populations most impacted by the birthright citizenship debate, were not analyzed as a separate group in the survey.) 

A federal judge has already temporarily blocked the order, calling it “blatantly unconstitutional” — but this won’t stop the conservative anti-birthright bandwagon from continuing to roll.

A federal judge who temporarily blocked the order, called it “blatantly unconstitutional” — but this won’t stop the conservative anti-birthright bandwagon from continuing to roll. Not only has it proven to be a successful wedge to break multiracial coalitions, it has served as one of the right’s most potent whips to energize the white supremacists of their base, who despise birthright citizenship’s historic origins as a means to enfranchise freed Black slaves, and abhor its present status as a critical mechanism affording the “browning of America.” 

The devil in the details

The vulnerability of birthright citizenship lies in the same thing that allows the U.S. Constitution to live and breathe and stay relevant to a changing world: textual economy. Along with the rest of the Constitution and its amendments, the 14th was deliberate with its sparse language and a lack of examples or contextual framing, in order to put exact interpretation in the hands of future generations. Its relevant lines say, very simply: 

“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.” 

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It’s the clause nested within commas, “and subject to the jurisdiction thereof,” that has been the subject of the right’s continued bad-faith interpretation. Those six words have enabled conservatives to argue for withholding citizenship from children born to those residing in America without legal status or temporarily, based on their parents not being “subject to [U.S.] jurisdiction.” This line of attack ignores the very fact that said parents are required to obey our laws as residents and can be criminally penalized for breaking them with fines and imprisonment (not just deportation) — the definition of being subject to American jurisdiction. 

But modern conservative ideologues like Claremont Institute scholar and former Trump national security official Michael Anton have found a means to end-run this obvious fact. In his op-ed laying out the intellectual groundwork for Trump’s executive order, Anton makes the improbable leap that “jurisdiction” should really be understood to mean “allegiance,” and that noncitizens couldn’t be said to have allegiance to America, due to their unrenounced ties to their native homelands.

An enemy within

The subtext of this rhetoric is menacing. It suggests that the loyalty of noncitizens should be seen as inherently suspect — and that they should be seen not just as parasites on our economy and government services, but as a fifth column of potential spies and saboteurs, whose sleeper-cell progeny shouldn’t be given citizenship for the security of the republic. 

Misplaced allegiance is a slander with which Asian Americans are sadly all too familiar. It was a prime excuse for the barring of Chinese and later, all Asians from immigrating to the U.S., via the Chinese Exclusion Act and the Asiatic Barred Zone Act of 1917. It was the specific charge used by the federal government to herd Japanese Americans into concentration camps, legal residents and citizens alike, without evidence or trial for the duration of World War II. It has been used to vilify and even imprison Asian American research scientists, including Wen Ho Lee, the Taiwanese American nuclear scientist who spent nearly a year in solitary confinement based on unfounded FBI accusations of funneling weapons secrets to mainland China. 

Wong Kim Ark. Credit: National Archives.

Against this historical backdrop, Trump choosing to lean into this hateful trope to end jus soli is hardly shocking. But he should understand that this exact issue was already settled in the very decision that affirmed universal birthright citizenship: The landmark 1898 Supreme Court case of United States v. Wong Kim Ark, in which Wong, a 21-year-old Chinese American, challenged the federal government’s refusal to recognize his citizenship on the basis that his noncitizen Chinese parents were “subjects of the emperor of China” at the time of his birth in San Francisco. In Wong, the court ultimately rejected the allegiance argument by an overwhelming 6-2 margin, establishing the 14th Amendment’s blanket birthright promise in no uncertain terms.

The fact that this hasn’t dissuaded Trump and his allies from invoking “lack of allegiance” as a rationale for eliminating a fundamental constitutional right should give everyone pause, not just immigrants and their children. We’ve seen how Trump measures loyalty, and it isn’t focused on allegiance to this country, but to himself. Everything we’re seeing now feels like a preview of a near future in which no right is secure or absolute, but conditioned entirely on giving fealty, favoritism, flattery and funds to the president and his cronies — who have already indicated that they intend to advance from attacking birthright to denaturalization; from taking citizenship away from newborns to revoking it from “disloyal” children and adults. 

So it is here where we must hold the line, and defend the very first right we receive upon drawing our first breath in this nation. If our American birthright is to be seen as something that can be struck away with an idle stroke of the executive pen, no right, entitlement or privilege could remain safe.

Correction: A 2024 PRRI/The Atlantic analysis did not analyze Asians as a separate group, despite Asians being one of the populations most impacted by the birthright citizenship debate. In editing, a previous version of this story mischaracterized that portion of the methodology.

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Jeff Yang is a Los Angeles-based cultural critic and opinion writer.

Halimah Abdullah is an award winning veteran national political journalist with more than 20 years of experience covering politics and government at the local, state, and federal level. She has edited and helped manage Washington coverage for such organizations as PolitiFact, Newsela, NPR, ABC News and NBC News — networks where she also wrote. Her work has also appeared in Newsweek, Capital B, CNN.com, Newsday, McClatchy newspapers, MSNBC.com, thegrio.com, TODAY.com, and The New York Times, among...