Posted on 12/06/2025 7:49:31 PM PST by SeekAndFind
For the first time, the Supreme Court will directly confront the legality of Donald Trump’s executive order restricting birthright citizenship. The politics around the case are loud and predictable. But the constitutional question at the center of it is much quieter, and far more consequential: Can any president, Republican or Democrat, unilaterally reinterpret the Fourteenth Amendment?
After reviewing the Court’s recent decisions and the skepticism justices have already shown toward this executive order, it’s clear that the conservative majority may not be willing to hand the White House a power this sweeping. In fact, the justices most hostile to broad federal authority—Clarence Thomas, Samuel Alito, and Neil Gorsuch—are the same ones who have consistently rejected presidents accumulating powers that properly belong to Congress.
If that principle holds, the Court may uphold birthright citizenship not because they agree with its modern application, but because they don’t believe a president can rewrite constitutional meaning through executive order.
The administration’s order is designed to challenge a 127-year-old precedent: United States v. Wong Kim Ark. In that case, the Court held that a man born in San Francisco to Chinese immigrants, during an era of laws explicitly hostile to Chinese immigration, was a U.S. citizen. The ruling was rooted directly in the Fourteenth Amendment’s text: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof…”
That interpretation has been reaffirmed repeatedly. Modern scholars note that birthright citizenship has been the governing rule for so long that undoing it would effectively redefine who counts as American overnight. Even conservative legal analysts who question the policy concede that presidents cannot unilaterally change a constitutional rule written by Congress and ratified by the states.
As the Associated Press reports, the Court’s decision will determine whether the executive order “violates the Constitution’s guarantee of citizenship by birth.”
Before reaching the Supreme Court, Trump’s order faced a wall of defeats in the lower courts. Judges appointed by both parties concluded that the executive branch lacked the authority to redefine citizenship. Even after the Supreme Court limited “universal injunctions” last term, lower courts permitted challenges from affected children to continue as class actions.
According to SCOTUSblog, the case now before the Court—Trump v. Barbara—raises the very constitutional question the justices avoided in their prior injunction ruling.
And notably, during arguments in the earlier case, several conservative justices expressed deep skepticism toward the order’s legal foundation. That skepticism spanned justices who rarely side with limits on presidential authority.
This brings us to the heart of the issue: separation of powers.
This Supreme Court has spent years pushing back against executive overreach. They have curtailed agencies, limited presidents’ ability to reinterpret federal statutes, and reaffirmed Congress as the rightful source of major policy changes. This is the same Court that struck down the Biden administration’s student loan plan, restricted the administrative state through the major questions doctrine, and repeatedly warned that presidents cannot act without congressional authorization.
If any president, regardless of party, can unilaterally redefine who is or isn’t a citizen, that authority would instantly surpass Congress. It would also allow a future Democratic president to expand citizenship through executive order. Whatever power you give your guy today, you hand it to the other guy tomorrow.
The conservative legal movement has spent decades resisting the expansion of presidential power. It would be out of character for this Court to reverse course and allow the executive branch to rewrite a constitutional guarantee.
If the Court rules against the administration, a likely opinion could include:
That last point is critical. If the Court allows the executive to eliminate citizenship, it must also allow the executive to grant it. This Court does not appear eager to open either door.
ABC News notes that the ruling could reshape presidential authority far beyond immigration.
For conservatives who value constitutional limits, there is real tension here. Many on the right support restricting birthright citizenship because they believe it incentivizes illegal immigration. But the mechanism used to achieve that goal, a sweeping executive reinterpretation of a constitutional text, directly conflicts with long-standing conservative principles of limited executive power.
You can support Trump’s immigration priorities and still oppose giving the executive branch the authority to rewrite the Constitution.
And that, ultimately, is why the Court may rule against the order. A conservative majority skeptical of federal power, doubtful of unilateral executive policymaking, and protective of congressional authority may be unwilling to hand the White House the ability to determine who is and who is not an American.
If you value limited government, that’s not the worst outcome.
This is a strange article. The question is, what did the 14th amendment mean? The article treats the issue as whether the President can “reinterpret” the constitution.
The actual question is can the president “interpret” the constitution.
It all boils down to whether or not the Supremes know what the word “illegal” means.
It’s NOT reinterpreting the Constitution. The Chinese immigrants were LEGAL immigrants, here under the laws that existed at the time. The 14th has been used to give the children of illegal aliens citizenship, somehting I don’t think anyone at that time would have agreed to.
the author is not even close to presenting the issue at hsnd
If Trump loses this case by a single vote I foresee him calling into question the legitimacy of a certain Biden SC appointee (autopen?) and holding that only a re-count with a newly appointed justice will be accepted....
We shall see..
I would actually prefer this was settled by a Constitutional amendment.
His father, Wong Si Ping, and mother, Lee Wee, emigrated from Taishan, Guangdong, China and were not United States citizens, as the Naturalization Law of 1802 had made them ineligible for naturalization either before or after his birth.
Um, because they may have access to the text of the Constitution? What is this silliness? Does anyone really expect them to reverse birthright citizenship?
No offense to you personally but this right here is what’s wrong with our side. The Democrats torture the law to advance their agenda. Our side won’t enforce the law as written to uphold it. We push for new laws and future elections rather than trust the truth of our convictions to do what needs to be done when the time is right to do it.
It’s obvious that the SCOTUS ruling on “birth right citizenship” will either save this country as founded or will allow for its continued destruction. That’s a heavy burden, they had better get it right.
Time for Congress to write new immigration laws.
I'm more concerned with counting illegals in the census.
They're subject to the jurisdiction of their home countries, not the United States.
“ Can any president, Republican or Democrat, unilaterally reinterpret the Fourteenth Amendment?”
Apparently, at some time, some president did.
EC
Ironically, it was Jao Bai-din's regime that confirmed the United States does NOT have jurisdiction over illegal aliens when the administration refused to mandate the COVID-1984 Jim Jones Jab for illegal aliens because the administration did not have the right to mandate it for foreign nationals.
The job of the Supreme Court is to interpret the Constitution. They have the authority to correct a bad decision by a previous court.
The 14th amendment could have excluded children of illegals...it did not. Trump’s case will fail.
The real question is will the Supreme Court finally correctly interpret the 14th amendment, that it applies only to ex-slaves who were brought to this country against their will, and not to every swinging dick that walked across the border illegally, and had a baby here.
>>”His father, Wong Si Ping, and mother, Lee Wee, emigrated from Taishan, Guangdong, China and were not United States citizens..”
But they were residing in the United States legally at the time of his birth.
They might npt have agreed to it as they woild not have thought Presidents would have let millions of flot sam and jetsam in, unhampered by impeachment and conviction.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.