On January 20, 2025, President Trump’s first act was to end birthright citizenship by executive fiat with the “Protecting the Meaning and Value of American Citizenship” executive order. On March 13, 2025, after four federal courts enjoined the implementation of the executive order, the Trump Administration petitioned the U.S. Supreme Court to allow him to enforce it. There are two problems with Trump’s tactic: First, the executive order is blatantly unconstitutional, as the first federal court to consider the issue correctly found. Second, the March 13 filing’s procedural posture is wrongheaded and will resolve nothing.

In terms of the procedural posture of the case, Trump’s acting Solicitor General Sarah Harris urged the justices to block nationwide preliminary injunctions issued by federal district judges in Seattle, Maryland, and Massachusetts. Essentially, she argues one or a few courts should not be able to stop enforcement of an executive order for the entire country. While this procedural argument has some support from two of the nine Supreme Court Justices, nationwide injunctions are not new and are in fact widely used and were repeatedly sought by conservatives against Presidents Biden and Obama. More importantly, the procedural argument regarding nationwide injunctions does not and will not address the legality of the executive order.

In terms of its constitutionality, the executive order claims that 1) the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States and 2) the Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Trump and his advisors are dead wrong on both fronts.

Indeed, every single Supreme Court decision considering the issue found all persons born in the United States are in fact U.S. citizens. These decisions include Wong Kim Ark, affirming birthright citizenship for all born in the United States and holding that Elk v. Wilkins “concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents”; Perkins v. Elg, holding that a person being born of foreign parents and leaving the U.S. for a long period of time did not affect status as a U.S. citizen; and Afroyim v. Rusk, which held that birthright citizenship was “beyond the power of any governmental unit to destroy.”

In fact, the Supreme Court in Afroyim prophetically rejected the very action Trump is trying to achieve with his executive order:

The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.

The latest citizenship decision, Plyler v. Doe, similarly prophetically addressed attempts like those being made by the Trump administration, stating:

Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term … Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.

Thus, the Supreme Court’s repeated and consistent support for birthright citizenship should have put the question to rest. But politics are what they are, and consequently, Trump and his acolytes attempt to distort the terms of the Constitution to argue undocumented immigrants are not “subject to the jurisdiction” of the United States because the undocumented entered in violation of U.S. law. And according to them, U.S.-born children of the undocumented are somehow not citizens. Trump and his supporters resort to reinterpreting the meaning of the “subject to the jurisdiction thereof” language of the Fourteenth Amendment by attempting to ascertain the “original meaning of the term.” 

In the end, opponents of birthright citizenship equate being “subject to the jurisdiction” of the United States with “allegiance” to the United States. Here too Trump and his supporters fail because the original meaning of the Fourteenth Amendment’s Citizenship Clause when enacted by the 39^th Congress, much like the Supreme Court’s precedent, was unequivocal in finding when one is born in the United States, one is a citizen of the United States. In fact, nowhere in the legislative history of the Fourteenth Amendment did congressional leaders equate “subject to the jurisdiction” with allegiance in the sense the revisionists are attempting to use it. Congressional leaders of the 39^th Congress repeatedly recognized being “subject to” our laws meant one could be punished by our laws. As a result, Trump’s defenders, even by using revisionist rhetoric, are not supported by their very own analytical device: ascertaining the original meaning of the Fourteenth Amendment. And what is perhaps most repugnant about their argument is they seek to deny citizenship to children for wrongs of their parents, a proposition that was rejected by the Supreme Court in Plyler v. Doe, where the Court specifically stated that a law “directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

Moreover, our fundamentals of separation of powers do not allow for a change to the Constitution by executive fiat. We are not led by a king or other monarch, even if the President calls himself one. The U.S. Supreme Court will ultimately determine whether Trump’s effort to rewrite the Constitution is legal. If they follow precedent, discern the enacting Congress’ meaning of the Citizenship Clause, and respect every Supreme Court decision on the issue, the question is clear: Trump’s executive order is unconstitutional. If they instead act as politicians and are motivated by what are effectively political calls to curb the browning of America, then Trump will be able to rewrite our Constitution with a stroke of a pen. Such a result will be a sad day for separation of powers and democracy, one that will unquestionably be inconsistent with the original intent of the drafters of the Fourteenth Amendment and over a century of Supreme Court precedent.

Ediberto Roman is a Professor of Law and the Director of Immigration and Citizenship Initiatives at Florida International University.