Why Trump Is Going to Lose on Birthright Citizenship

Trump’s executive order purportedly denying birthright citizenship to the children of “unlawful” immigrants comes before the Supreme Court on Thursday on a procedural issue. My new column for The Hill explains why Trump’s lawyer will not be able to defend it.

Here is the gist:

Supreme failure: Trump’s lawyers will flop in arguments against birthright citizenship

by Steven Lubet, Opinion Contributor - 05/12/25 8:30 AM ET

The government’s pleadings repeatedly assert that the children of unlawful entrants are excluded from birthright citizenship under the Fourteenth Amendment’s “original public meaning,” which, according to recent Supreme Court decisions, was “fixed according to the understandings of those who ratified it.”

In 1868, the ratifiers of the Fourteenth Amendment could not possibly have understood birthright citizenship, even under an “allegiance” theory, to exclude the children of “illegal aliens,” because that category simply did not exist at the time.

The first general restriction on immigration, the racist Chinese Exclusion Act, was not passed until 1882. Thus, when the meaning of the Fourteenth Amendment was fixed by its ratification, there was no distinction between lawful and unlawful immigrants. There was only one class of entrants, to whose children birthright citizenship applied without differentiation.

Postscript: Yes, I know that the attorneys defending Trump’s order are not “his lawyers,” but that is regrettably how they see themselves.

You can read the full essay at The Hill.