On the first day of his second term, President Donald Trump signed an executive order seeking to end birthright citizenship—the longstanding policy granting U.S. citizenship to nearly anyone born in the country. The order specified that children would not automatically receive citizenship if their parents were in the United States unlawfully or in the country temporarily on visas.
Lower federal courts struck down the order as unconstitutional, prompting the Supreme Court of the United States to take up the case. On Wednesday, the Court heard more than two hours of oral arguments in Trump v. Barbara. Trump attended the opening of arguments, becoming the first sitting U.S. president to appear at a Supreme Court hearing, before departing shortly afterward.
At the center of the dispute is the 14th Amendment, which guarantees citizenship to anyone born in the United States and “subject to the jurisdiction” of the country. For more than a century, that language has been understood to confer automatic citizenship regardless of a child’s parentage. The Trump administration, however, has urged a narrower interpretation—one that would exclude certain children born to non-citizens.
1884 Native American Case
To support its position, the administration pointed to Elk v. Wilkins, an 1884 decision involving John Elk, a member of the Omaha Tribe who was denied the right to vote. After leaving his tribal community in Nebraska and living among non-Native residents in Omaha, Elk attempted to register to vote in 1880. The local registrar, Wilkins, refused, arguing Elk was not a U.S. citizen. At the time, Native Americans were generally not recognized as citizens unless naturalized or specifically granted that status under federal law.
Elk sued, claiming that the 14th Amendment made him a citizen because he was born in the United States and had subjected himself to U.S. law. The case ultimately became a test of whether Native Americans who left their tribes could unilaterally claim citizenship. The Supreme Court ruled against him, holding that Elk was not automatically a citizen because he was born into a tribal nation, which the Court viewed as a separate political community.
The decision resurfaced in Wednesday’s arguments as the Trump administration sought to use it to define the limits of birthright citizenship. But critics argue the case has been misapplied.
“We believe the reliance on Elk to deny birthright citizenship to children of undocumented immigrants is misplaced. It’s a misreading and a misunderstanding,” said Lennie Fineday, general counsel for the National Congress of American Indians (NCAI). The Elk decision, he said, rests solely on the unique status of “quasi-sovereign tribal government” and is limited to that context.
During arguments, an attorney for the American Civil Liberties Union directly addressed Elk, seeking to narrow its relevance. The attorney emphasized that the case arose from a distinct legal framework involving tribal sovereignty, arguing that Elk’s circumstances are fundamentally different from those of children born in the United States to non-citizen parents today. At the time, Native nations were treated as separate political communities, meaning Elk was not considered fully subject to U.S. jurisdiction in the same way others born on U.S. soil were.
The attorney contrasted that history with modern immigration law, noting that non-citizens—regardless of status—are fully subject to U.S. authority. In doing so, the argument reframed Elk v. Wilkins as a narrow exception, not a broad limitation on birthright citizenship. The focus then shifted to United States v. Wong Kim Ark, which the ACLU argued is the controlling precedent. That decision, they said, firmly established that children born in the United States are citizens regardless of their parents’ nationality, creating a “fixed bright-line” rule under the 14th Amendment.
After the oral arguments ended on Wednesday, legal experts said the Trump administration’s case to end birthright citizenship appeared to face skepticism. It remains unclear whether the justices were fully convinced by the administration’s position.
A final decision in the case is expected by summer 2026.
