Donald Trump, The Supreme Court, And Birthright Citizenship

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0:24If you're born in the United States, with few exceptions, you become a U.S. citizen. That principle is called birthright citizenship, and it's existed since the end of the Civil War. 160 years later, President Trump wants to change that principle. On his first day back in office, he signed an executive order that tries to narrow the category of babies who are eligible for citizenship. The Supreme Court hears Trump v. Barbara, the case regarding birthright citizenship, on Wednesday. On Monday, President Trump weighed in on his social media site, saying in part, quote, birthright citizenship is not about rich people from China and the rest of the world who want their children and hundreds of thousands more for pay to ridiculously become citizens of the United States of America.

1:06It's about the babies of slaves. We are the only country in the world that dignifies this subject with even a discussion. At least 33 other countries, mostly in the Americas, allow birthright citizenship with no stipulations. We're already hearing from some of you about the case. Here's Jerry in Alexandria, Virginia. It is very clear. It is very simple. It is very straightforward. I can't imagine how there's any way to interpret what is written on the page, as it were, when it comes to the amendment that conveys birthright citizenship. And a member of our tax club writes, I believe it's a simple constitutional rule.

1:48If you're born here, you are a citizen. If we change it, how far back would Republicans want us to trace our ancestry before deciding we can be citizens? What could the outcome of this case mean for U.S. citizenship for new immigrants, for their children, and for native-born citizens? I'm Jen White. You're listening to the 1A Podcast. Today we ask, what could the outcome of this case mean for U.S. citizenship, for new immigrants, for their children, and for native-born citizens? We'll be back with more after this short break. Stay with us.

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3:00Mail and ship when you want with Stamps.com. Print postage on demand. and schedule pickups from your office or home. That's why over 1 million small businesses trust Stamps.com. Go to Stamps.com and use code NPR to try Stamps.com risk-free for 60 days. Support for NPR and the following message come from Warby Parker, the one-stop shop for all your vision needs. They offer expertly crafted prescription eyewear, plus contacts, eye exams, and more. For everything you need to see, visit your nearest Warby Parker store or head to warbyparker.com. Welcome back to the 1A Podcast. Let's get into our conversation and meet our guests.

3:42In studio with us is Pema Levy. She's a reporter for Mother Jones. Pema, welcome to the program. Thanks for having me. Also joining us from Washington, D.C. is Cody Wafse. He's deputy director of the ACLU's Immigrants' Rights Project. He's also part of the ACLU legal team leading representation for the plaintiffs in the birthright citizenship case. Cody, it's great to have you. Thanks so much for having me. And a quick note, we did reach out to the Department of Justice, which is arguing the case for the Trump administration. We did not hear back from them in response to our questions about the case.

4:14So, first, what is the basis of this case, Trump v. Barbara? So, on Trump's first day in office, January 20th, 2025, he issued an executive of order purporting to say that he is going to return our practice of birthright citizenship to the way that he says the framers of the 14th Amendment intended it. And he says it was never intended to apply to the children of people who are here who are undocumented. And it was never meant to apply to the children of people who are here on a temporary basis, say a student visa or a work visa or traveling. And so all of those people, he's going to start denying them citizenship.

4:55So immediately, and he said he would do this within 30 days. So essentially immediately you would start to have thousands of babies born in this country, possibly stateless, without a country of their own, subject to deportation, not able to get food assistance, not able to get health care potentially. So it was an immediate crisis. And so immediately people who were about to have babies who would fall into this category and civil rights groups sued. And now for the first time, the question of whether or not that order was legal and constitutional has reached the Supreme Court. So, Cody, I just want to better understand the argument in this case.

5:37Is this a question of what the 14th Amendment says about citizenship? Is it a question about the extent of presidential power or some combination? Yeah, so the core questions are about the 14th Amendment and also a statute that Congress passed in 1940 that uses the same language as the 14th Amendment and that re-enshrined the right to birthright citizenship as kind of a backup protection. That's really the issue, and it's an issue that the Supreme Court has already decided. In 1898, the Supreme Court issued an exhaustive opinion looking all the way back to England through all the history, through what the words mean, and explained that the text of the Constitution means what it says.

6:32and that if you're born here, you are a citizen with only this narrow set of exceptions for people like the children of ambassadors in the United States. That's been the rule ever since. Everyone has understood it. And that's what we expect the court to say again in this case. Well, as we mentioned, you're part of the legal team for the plaintiffs in this case. Cody, tell us about the named plaintiffs. Yeah, absolutely. So we represent a class of all the children who are targeted by this executive order. It's tens of thousands of babies being born every month. And there are three families who are standing in to represent all those children before this court named plaintiffs.

7:23The families are very much like the broader group who's represented. The parents in all these families have different immigration statuses, different situations, but it's things like folks who are here on long-term work visas or long-term student visas. You can think of like PhD candidates, people who have long-term different kinds of status, whether it's DACA recipients who may have been here since they themselves were children or people on temporarily protected status, other people who may not have any immigration status at the moment but have lived here for maybe years or decades, building their life, contributing to their communities, as well as folks who are here seeking safety, asylum, and other forms of protection.

8:08are named plaintiff families, represent sort of different aspects of that overall group of families targeted by this order. And like I said, those families are different in various ways. But one thing that holds them all together is that even at this moment of, you know, an intense personal moment for many families, either pregnant or with young children, all the stresses that come along Along with that, the federal government is targeting their newborn babies and trying to strip away their birthright citizenship. Well, we're hearing from more of you. One of you shared this. I am a birthright citizen.

8:44I was born to legal immigrants awaiting U.S. citizenship and immigration services determination. My parents were also Holocaust survivors. I wish the U.S. had been more open to refugees so my mother wouldn't have suffered a concentration camp and my grandparents wouldn't have been murdered at Auschwitz. Our population is diminishing. We need both immigrants and people born here to immigrants. In writing this executive order, Pema, the president and his administration opened up this debate around the meaning of the first sentence of the 14th Amendment. As a reminder, it reads, 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.

9:27Cody alluded to the landmark case, the U.S. v. Wong Kim Ark. Just briefly give us an explanation of what happened in that decision. Wong Kim Ark was born in San Francisco, I believe in 1873. His parents were living here legally in San Francisco. Due to anti-Chinese animus, which was increasingly building during that time, they ultimately moved back to China. and Juan Camargo went to visit them at one point. He came back to the United States and they wouldn't let him in. They said, because of your ancestry, we're going to apply the Exclusion Act to you and you will not be able to come in. They actually detained him for months.

10:09And so he sued and said, actually, I am a citizen. I was born here. Look at the 14th Amendment. And the court affirmed his citizenship in a ruling that really said, look, this is the common law from England. This is how it has always been determined. The exceptions to birthright citizenship are very small. And almost reluctantly, at a time of virulent anti-Chinese sentiment, they said, no, he is a citizen. And that really put to bed for more than 100 years, the idea that you could restrict birthright citizenship beyond, again, this very small and limited number of exceptions. Cody, what connections, if any, do you see between that case from 1898 and the Trump administration's decision to now challenge the meaning of birthright citizenship, potentially changing how it works?

11:04Yeah, so that decision interprets the Constitution. It provides the rule, and it's completely inconsistent with and forecloses the Trump administration's executive order. But to your point about connections, I think that it's one of the things that's remarkable about this case is the extent to which the government is just recycling the same arguments, the same sources, the same quotes that the government had offered up to the Supreme Court back in 1898. Those arguments were wrong and were rejected then and they are wrong and we have every expectation they'll be rejected now. We got this email from Jim who says, another point that I haven't heard addressed, the president is moving the Overton window by challenging a constitutional amendment via an executive order.

11:56Pamela, what are the administration's claim for why the president could make this change via EO? Yeah, it's kind of wild, right, to be able to say, as president, I'm just going to sign a piece of paper saying the Constitution says something that it just obviously doesn't say. But they're saying because this is the original correct interpretation, we're not technically changing the Constitution. We're just returning it to what it originally said. Well, let's get into more of that after the break. Before we go, a member of our text club writes, being born in the USA means you are a U.S. citizen.

12:35It must not be changed. Coming up, why the court ruling in this case could matter for everyone in the U.S., regardless of their citizenship status. That's just ahead.

12:48This message comes from Grainger. Grainger knows that if you're the purchasing manager at a manufacturing plant, the only thing more important than having the right safety gear is having it there when you need it. That's why you can count on Grainger for auto reordering, helping ensure your team members always have cut-resistant gloves on hand, and each shift can run safely and efficiently. Call 1-800-GRAINGER, click grainger.com, or just stop by. Grainger, for the ones who get it done. This message comes from Stamps.com. Shipping, billing, admin, you're managing all these things. Why waste time sending important documents the old-fashioned way?

13:26Mail and ship when you want with Stamps.com. Print postage on demand and schedule pickups from your office or home. That's why over 1 million small businesses trust Stamps.com. Go to Stamps.com and use code NPR to try Stamps.com risk-free for 60 days. Support for NPR and the following message come from Warby Parker, the one-stop shop for all your vision needs. They offer expertly crafted prescription eyewear, plus contacts, eye exams, and more. For everything you need to see, visit your nearest Warby Parker store or head to warbyparker.com. Let's jump back into our conversation. We're discussing the Supreme Court case about birthright citizenship in the U.S.

14:09Oral arguments in the case are scheduled for Wednesday. Joan in Alexandria, Virginia texted to say, I support birthright citizenship 100%. And thinking about it, it's possible my late mother and her two siblings were born before her parents had attained legal citizenship. I'm not sure of the finer points of Trump's nasty xenophobic order, but under such a law, it's possible that mom might have been stateless. She sure couldn't have gone back to the pogroms in Eastern Europe. And Mariana in Minnesota writes, I don't think it needs to be changed, even for undocumented people. I believe in the Constitution.

14:44This is just another reason the current president wants to tear up the Constitution. Pam, I want to better understand perhaps the administration's timing here. This is an executive order President Trump issued in his second term, and it's going before a very conservative court. Is that something you think the administration took into account when deciding to challenge over 100 years of precedent? Yeah, I think the administration absolutely knows that they have a friendly court. And not just because the members of the court are Republican appointees, six out of nine, who are conservative jurists, but because we've seen over more than a year now that they have almost always sided with this administration, whether or not it's allowing other executive orders to take effect, whether or not it's allowing various policies to take effect that are breaking the law, that are breaking the Constitution.

15:42This court has sort of waved them through again and again. You know, racial profiling by ICE, go ahead. Deporting people to third countries without due process, go ahead. So there are so many examples here. let Doge violate the Privacy Act. Sure, why not? And so at that point, the administration says, yeah, why don't we just continue and appeal this? We want to enforce this order. Let's go ahead and take this up to the Supreme Court and try our chances. I just want to mention here, we spent some time talking about third country deportations here on 1A. If you want to better understand that policy and how it affects people who are being deported to third countries, head over to the 1A.org.

16:25You'll find the conversation there. Cody, you sound confident that the Supreme Court will rule in your favor. Why? Yeah, I mean, I think all the indications, all the arguments cut in our direction. The history here is on our side. As has already been mentioned, this has been the rule since the beginning of the country and going all the way back to England. If you were born on U.S. soil, even if your parents were immigrants, regardless of their situation, you were a citizen. That's the rule that was enshrined in the Constitution. That's exactly what the Supreme Court said in Wong Kim Ark. And again, there is an entirely independent ground on which we can prevail in this case, which is the statute.

17:13The government's wrong on the text, it's wrong on the history, and it's wrong on the precedent. And yet we have seen this Supreme Court be willing to overturn long-established precedent. So what would the ACLU do if the court rules in the administration's favor that the president can change the principle of birthright citizenship? What would be your next step? I mean, look, in that extremely unlikely scenario, obviously we'll have to see, you know, whatever the court has to say. But, you know, I do want to emphasize we understand the stakes are incredibly high. A ruling in favor of the government here would have catastrophic effects not just on the children who are targeted by this executive order and their families, but on potentially millions of other Americans.

18:02That's why we and our partners and our allies have been doing everything we possibly can to make sure that this is a fight we do win. Pema, I want to talk about some of the stakes here. If the judges decide the administration has made an argument that they can stand behind, who might that ruling affect? It'll affect everyone. The more I look into this, the more I'm certain that there's no way to predict where these ripple effects might end. So immediately you might think of a baby born here. Are the parents even going to go to the hospital at that point, right? Are they worried that ICE is going to be marching through maternity wards deporting newborns?

18:50You're going to have kids who aren't getting care that might need to be in the NICU, for example. You're going to have kids not getting their vaccinations. They won't have access to SNAP benefits, food benefits. They won't have access to CHIP, to health care, federal health care assistance. So you see immediate harm to people. And over time, what you have is a fundamental break in our society. You have a society where there are millions of children growing up who don't have protection, who are subject to deportation, who might not be able to go to school, who eventually might not be able to get work permits.

19:34And you just – you stop the process of integrating people into this society. And I think in addition to Cody's point about the precedent and the law and the history, I think the reason I am optimistic that the court is going to strike down this order is how radical it is, right? So the American dream is that it doesn't matter who your parents are. You can make something of yourself if you work hard, right? This order says no. In order to be something in this country, you have to have the right parents. and that is fundamentally unpopular and really radical. The other thing I will say is implementing this will be so chaotic that there's no way that it won't affect everyone, right?

20:16So you might be born with every right to have citizenship, but if your parents lost their documents or they don't have the right ones, you might not get it, right? All of a sudden, how do you get a passport with just a birth certificate? Because a birth certificate won't mean the same thing anymore. So how is the Trump administration saying they would apply this change if it goes forward? Would it be retroactive or are they only talking about births that happen if this EO goes into effect? I think this is a really important question. The EO says starting 30 days after this order. But that's like a pinky swear, right?

20:56That's not legally binding. It's just an executive order. They could write another one the next day that says we're going to use Ancestry.com or 23andMe to go find everyone whose parents didn't have legal permanent residence or citizenship or their parents or their parents. I mean, and by the way, the Supreme Court would have already said those people aren't technically citizens under the 14th Amendment. And so there would be nothing stopping the administration or the next administration or the next one from doing this. So it turns something that we consider settled, that the rights and privileges that we rely on as citizens, and it turns it into a completely uncertain moving target going forward for millions of people.

21:41The chaos it would unleash is stunning. We got this from Janelle in Ohio who emails, although they may not say it now, I fear that there will be a push to make a retroactive claim if this goes forward. I feel that this administration is just trying to continuously send people away and millions will lose their citizenship. We're also hearing from Gerald in Detroit who says the Constitution allows for amendments and changes to laws. Congress can change laws and with the states add or remove amendments. Trump is taking unconstitutional and lazy measures trying to skirt the legal ways of handling this and other issues.

22:15We also heard from Charles who says we have to understand that persons from other countries are not all our responsibility. The First Amendment has clarifications, like you cannot break the law and use free speech to shout fire or bomb in a movie theater or airplane to have the place all to yourself. Similarly, a pregnant woman cannot sneak into your home, have a baby, and then claim that baby has a right to stay in your home. Allowing people to cross our border, break the law, and then take advantage of our birthright citizenship is not fair to the actual citizens of this country. Birthright citizenship to children of at least one U.S.

22:47citizen is fair to all. I'd love to hear your response, Cody, to what Charles is saying there. Yeah, absolutely. So a couple of things. One is that's not the rule that's in the Constitution. The Constitution is in universal language, all persons born in the United States with only those narrow exceptions. And that's for good reason. The framers of the 14th Amendment were reacting to one of the worst mistakes in U.S. history, which was the Dred Scott decision that set up a vision of U.S. citizenship that was based on excluding people from the United States, specifically black people, whether they were enslaved or free, could never be citizens is what the court said.

23:31That was what was being rejected. And the response was, no, there is a principle of equal citizenship that goes all the way back to England. And we're going to make sure that's protected so that no one can ever take it away, whether it's Congress, whether it's the president, or whether it's the Supreme Court. The other thing I would say is that it's important to understand what we're really talking about here. You know, there's a lot of rhetoric about supposed problems of birth tourism. That's if it's a problem, an infinitesimally small one, and it's already illegal under federal law. But what we're actually talking about is millions and millions of American families in various immigration statuses, whether it's work visas, DACA, and so forth, who are raising families here, contributing to their communities, being a part of the fabric of American life.

24:24and the idea is we're going to exclude their children from citizenship against the very terms of the Constitution and are most American of values. That is not the rule. That's not the law, and it is deeply unjust. Well, that's Cody Woffsee. He's deputy director of the ACLU's Immigrants' Rights Project. He's part of the ACLU legal team representing the plaintiffs in the birthright citizenship case before the Supreme Court. Also with us, Pema Levy. She's a reporter for Mother Jones. Thanks to you both. And we'll leave with this message. One of you texted, changing birthright citizenship would be a major constitutional shift, not just a policy tweak.

25:03The current rule is simple, predictable, and has been a cornerstone of U.S. identity for over a century. If the goal is to address immigration concerns, there are more targeted ways to do that, like visa enforcement or border policy, without redefining who is considered American at birth. Beyond the birthright citizenship case it's hearing this week, the Supreme Court has a slate of other cases it still needs to hear and multiple decisions to deliver before July. As with every year, many of these cases could have a lasting impact on our laws, how the government operates, and the day-to-day lives of people in the country.

25:37Joining us now from Ann Arbor with an overview of the court's term is Leah Littman. She's a professor of law at the University of Michigan Law School and co-host of the podcast Strict Scrutiny, which covers the Supreme Court. She's also the author of Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Leah, welcome back to the program. It's so great to be back. Thanks for having me. So I want to start with a decision that dropped just today. It's about conversion therapy. It's called Childs v. Salazar. And these are therapies that attempt to change a person's sexual orientation through various methods.

26:13The American Psychological Association opposes conversion therapy and says the practice should end because it harms individuals. It's not evidence-based. The court did drop a ruling today. They voted 8-1 that the law raised questions about the free speech concerns for the plaintiff, Kaylee Childs, and sent the case back to a lower court for further consideration. Just explain what this means. So the Colorado law here, as you know, prohibits the practice called conversion therapy. And the therapist at issue in this case argued the law was unconstitutional and triggered the most skeptical form of judicial review, strict scrutiny, to the extent it prohibited her from engaging in a kind of talk therapy.

26:55That is, she did not challenge the law's ability to ban physical treatments like electroshock therapy or medications. Her challenge was that the law reflected unconstitutional viewpoint discrimination because it allowed her to speak in ways that affirmed a client undergoing gender transition or a client's sexual orientation if they identified as gay, lesbian, or bisexual. But the law at the same time did not allow her to speak in ways that encouraged a client to realign their gender identity with their sex assigned at birth or to encourage a client change their sexual attractions or behaviors.