Former President Donald Trump has stated his intention to ask the U.S. Supreme Court to revisit the legal precedent for birthright citizenship, a move that would challenge the long-standing interpretation of the 14th Amendment. While legal scholars note that the Supreme Court rarely grants rehearings for settled constitutional interpretations, the announcement signals a potential shift in how federal immigration policy may be contested in the courts during the coming administration.
Constitutional Context and the 14th Amendment
Birthright citizenship in the United States is primarily governed by the Citizenship Clause of 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.” This principle was solidified in the 1898 Supreme Court decision United States v. Wong Kim Ark, which affirmed that children born to foreign nationals on U.S. soil are citizens at birth.
Sandford ruling. The clause has served as the bedrock of American citizenship law for over a century. Any attempt to reverse this would require the Supreme Court to either overturn the Wong Kim Ark precedent or issue a new ruling that significantly narrows the definition of being "subject to the jurisdiction" of the United States.
Legislative Efforts and “Birth Tourism”
Parallel to legal challenges, members of Congress have explored legislative avenues to address what some term “birth tourism”—the practice of non-citizens traveling to the U.S. specifically to give birth so their children acquire citizenship. According to reports from Politico, House leadership has faced pressure from members of the party’s right flank to bring legislation to the floor that would curb this practice.
Legislative attempts to alter citizenship rules via statute face significant constitutional hurdles. Most legal experts maintain that citizenship is constitutionally protected, meaning it cannot be revoked or restricted through a simple act of Congress. Any federal bill attempting to define citizenship in a way that contradicts the 14th Amendment would likely face immediate judicial review and potential invalidation under the principle of judicial supremacy.
The Mechanics of Supreme Court Rehearings
The prospect of the Supreme Court “rehearing” a case as foundational as Wong Kim Ark is viewed by legal analysts as highly improbable. The Supreme Court typically only hears cases that have been through lower federal courts, and the judiciary generally adheres to the principle of stare decisis, which encourages courts to follow established legal precedents.
According to data from the Supreme Court of the United States, the court grants a small fraction of the thousands of petitions for writs of certiorari it receives annually. A request to reverse a century-old constitutional ruling would require the court to find a compelling reason to revisit a settled area of law, which, as noted by the New York Times, is an event that occurs rarely in the history of American jurisprudence.
What Happens Next
As of late 2024, there is no active case before the Supreme Court challenging the 14th Amendment’s citizenship clause. Any formal attempt to trigger such a review would likely require a new legal challenge to be filed in a district court, which would then need to work its way through the appellate system before reaching the Supreme Court. For now, the legal standard established in the 19th century remains the law of the land.
Observers are monitoring for upcoming filings or executive actions that might clarify the administration’s specific legal strategy regarding immigration and citizenship. Readers interested in following the progress of federal court cases can monitor the Public Access to Court Electronic Records (PACER) system for official updates on any litigation related to constitutional citizenship.
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