The Supreme Court of the United States recently heard oral arguments on two interconnected constitutional questions: the legality of national injunctions imposed by lower district courts on the executive branch, and the scope of birthright citizenship under President Donald Trump’s executive order “Protecting the Meaning and Value of American Citizenship.”
Just days before the hearing, The New York Times published “At Supreme Court, a Once-Fringe Birthright Citizenship Theory Takes the Spotlight.” The characterization as “fringe” reveals the publication’s bias from the outset. What The Times dismisses as fringe—requiring that at least one parent be a citizen or lawful permanent resident for birthright citizenship—represents an overdue necessity in the eyes of many Americans concerned about sovereignty and immigration enforcement.
The Current System’s Vulnerabilities
Under current interpretation, crossing either border illegally and giving birth, or overstaying a tourist visa and having a child, automatically confers American citizenship on the newborn. This creates perverse incentives that undermine both immigration law and the value of citizenship itself.
The most egregious abuse manifests in the birth tourism industry. U.S.-based hotels charge foreign nationals—predominantly Chinese citizens—fees reaching $80,000 for several weeks of accommodation until they give birth to American citizens. When federal immigration agents have raided these operations, proprietors faced charges including money laundering, wire fraud, and connections to sex trafficking networks. Tellingly, many operators fled before facing trial, highlighting the criminal enterprise’s international scope.
Constitutional Foundations vs. Current Practice
The 14th Amendment’s citizenship clause states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. Birthright citizenship advocates consistently ignore or misinterpret the crucial conditional phrase “subject to the jurisdiction thereof.”
This amendment was specifically crafted to grant citizenship to children of former slaves, not to create automatic citizenship for children of foreign nationals who enter illegally or temporarily. The current broad interpretation represents a constitutional fiction unsupported by historical evidence or original intent.
As Todd Schulte, president of advocacy group FWD.us, stated: “The Constitution is crystal clear: all persons born in the United States are citizens of the United States.” This assertion demonstrates precisely the selective reading that has perpetuated the current misinterpretation. The Constitution includes essential qualifying language that cannot be ignored.
Practical Consequences
The Supreme Court transcript reveals that justices focused primarily on legal technicalities rather than the dire practical consequences of maintaining the status quo. Automatic citizenship serves as a powerful lure encouraging unvetted illegal immigration, with the promise of lifetime benefits including public K-12 education, Social Security, and Medicare—programs designed for legitimate citizens.
If public schools face overcrowding, as educators and parents consistently report, and if Social Security and Medicare approach insolvency, as Congress regularly warns, adding more beneficiaries through birthright citizenship accelerates these programs’ collapse. The mathematics are unavoidable.
Judicial Overreach and Constitutional Authority
The case also addresses federal district courts’ use of national injunctions to block executive action. Justice Ketanji Brown Jackson suggested such injunctions provide a beneficial mechanism for forcing quick Supreme Court review. However, this perspective ignores the constitutional separation of powers and the dangerous expansion of lower court authority.
Activist judges wielding national injunctions represent a fundamental threat to constitutional governance, particularly in critical areas like immigration and national security. When federal district judges can single-handedly halt executive branch policies nationwide, they usurp both executive authority and the democratic will expressed through elections.
Political Reality
This case fundamentally concerns political power and constitutional authority. The 2024 election demonstrated clear public support for immigration enforcement and citizenship protection. Yet activist federal judges, potentially supported by Supreme Court justices including Jackson, Elena Kagan, Sonia Sotomayor, and Amy Coney Barrett, appear positioned to override this democratic mandate through judicial fiat.
Based on statements during oral arguments, most justices except Clarence Thomas and Samuel Alito seem inclined to uphold birthright citizenship despite the criminality that enables and exploits current practice.
The Stakes Ahead
For decades, constitutional originalists and immigration enforcement advocates have sought definitive Supreme Court guidance on this contentious issue. That moment has arrived, though the outcome appears unlikely to favor constitutional fidelity.
Prediction: The Court will likely lack the courage to correct this long-standing misinterpretation, instead citing established executive practice and concerns about children’s welfare. This decision would perpetuate a constitutional fiction that undermines both American sovereignty and democratic governance, representing a failure of judicial responsibility at a critical constitutional moment.
The choice before the Court is clear: restore the 14th Amendment’s original meaning and purpose of or continue enabling a system that rewards illegal immigration while devaluing the profound significance of American citizenship. The Constitution demands the former; political expedience unfortunately suggests the latter.
Joe Guzzardi is an Institute for Sound Public Policy analyst who has written about immigration for more than 30 years.
