Supreme Court justices grilled the Trump administration over its executive order on birthright citizenship on Wednesday, appearing skeptical of the arguments by the solicitor general that birthright citizenship should not apply to the children of illegal immigrants or temporary visitors.
The justices heard arguments in Trump v. Barbara, a challenge to President Donald Trump’s 2025 executive order seeking to reestablish birthright citizenship under the 14th Amendment as applying only to children born to at least one U.S. citizen or permanent resident parent on U.S. soil. Trump watched from the audience as Solicitor General D. John Sauer faced a cynical Supreme Court.
Sauer rested his arguments around the 14th Amendment language that extends citizenship at birth to people “subject to the jurisdiction” of the United States, insisting that children of illegal immigrants or noncitizens in the U.S. on temporary visas should be excluded from that set of people.
Chief Justice John Roberts immediately questioned the Justice Department’s use of “quirky” examples of people excluded from birthright citizenship, such as children of foreign diplomats, to justify excluding broad groups of people, such as illegal immigrants. Justice Elena Kagan also questioned the DOJ’s arguments, noting that Sauer was using “pretty obscure sources” to get to his understanding of the 14th Amendment, which would rewrite how the statute has been understood for more than a century.
Justice Clarence Thomas, widely viewed as one of the high court’s most conservative members, appeared skeptical of the DOJ’s arguments, asking several sharp questions over how much of the debate around the creation of the 14th Amendment dealt with immigration concerns.
The Justice Department’s arguments included concerns over how the current understanding of birthright citizenship has led to a surge in “birth tourism,” in which foreign nationals come to give birth to their children in the U.S. to give them citizenship but then return to their home country, and how the U.S. is an outlier globally with its liberal birthright citizenship standard. Two justices questioned the relevancy of those arguments to the legal question at hand, with Roberts questioning the “birth tourism” concerns and Justice Brett Kavanaugh questioning why other countries’ citizenship laws are relevant.
Trump was in attendance for Wednesday’s arguments, the first recorded instance of a sitting president attending oral arguments at the Supreme Court. He arrived in the chamber at 9:47 a.m., minutes before oral arguments began at 10 a.m., and left at roughly 11:20 a.m., as American Civil Liberties Union lawyer Cecillia Wang was beginning her arguments before the justices.
During arguments, Trump quietly sat in the front row of the public gallery, appearing with a neutral expression and occasionally closing his eyes. The president previously teased going to November’s oral arguments in his tariffs case, but ultimately did not attend.
While the justices were deeply skeptical of the DOJ’s arguments, they were also somewhat skeptical of the ACLU’s arguments to uphold the current understanding of birthright citizenship. Justice Samuel Alito appeared the most skeptical of Wang’s arguments, especially her claim that a person’s “domicile” was irrelevant in the Supreme Court’s last major ruling on birthright citizenship, the 1898 case United States v. Wong Kim Ark.
The DOJ’s theory on birthright citizenship rests on whether the parents are domiciled in the U.S., meaning whether they have made the country their permanent home, and it argues that Wong Kim Ark backs up its argument. While the justices were skeptical of that assertion, Alito was among the justices who questioned how the ACLU can claim that domicile is irrelevant to the Wong Kim Ark holding when it is referenced nearly two dozen times.
Justices Brett Kavanaugh and Amy Coney Barrett also questioned Wang on her assertion that the exceptions to the general rule of birthright citizenship under the 14th Amendment are firm and cannot be expanded.
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The Supreme Court is expected to issue a ruling in the birthright citizenship case by the end of June, when its term ends.
Since returning to the White House, Trump has had a mixed record at the Supreme Court on the merits docket, winning in last year’s case against universal injunctions but losing earlier this year in the case over his sweeping global tariffs. The administration is still waiting for a ruling on Trump’s ability to fire independent agency heads in the executive branch and will have arguments later this month in a case over the administration’s bids to end temporary protected status for Haiti and Syria.