As the Supreme Court prepares to hear major arguments this week over President Trump’s restrictions on birthright citizenship, the justices may sidestep the broader constitutional issue altogether.
Much of the focus ahead of Wednesday’s hearing has centered on whether Trump’s policy aligns with the 14th Amendment. However, the Court could instead take a narrower route by ruling that the policy violates an existing federal law from 1940.
On his first day back in office, Trump signed an executive order limiting birthright citizenship for children whose parents do not have citizenship or lawful permanent status. The policy has not yet taken effect, as it has been tied up in litigation for more than a year. Lower courts have repeatedly found that the order conflicts with the 14th Amendment’s Citizenship Clause, which grants citizenship to those born in the United States and “subject to the jurisdiction thereof.”
Legal scholars have spent months debating the meaning of that key phrase. The upcoming arguments are expected to clarify how broadly the justices interpret it.
The administration argues that “subject to the jurisdiction thereof” applies only to individuals who owe allegiance to the United States, meaning that children of those in the country illegally would not automatically receive citizenship.
This position challenges the long-standing interpretation of the amendment, which has recognized only limited exceptions, such as for children of diplomats or foreign military forces.
Still, the Court may not need to resolve that debate.
Years after the 14th Amendment was adopted, Congress enacted a law in 1940 that defined citizenship using nearly identical language. That statute was later reaffirmed in 1952 and remains in effect today.
Opponents of Trump’s policy argue that even if the executive order were found to be consistent with the Constitution, it would still conflict with that federal law.
This approach offers the justices a way to rule against the policy without addressing the constitutional question — a path that may appeal to the Court.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Chief Justice John Roberts wrote as he famously did not join the majority opinion fully overturning the constitutional right to abortion in 2022.
He described this as a “fundamental principle” of judicial restraint. The Court also generally seeks to avoid interpreting laws in a way that would render them unconstitutional.
Although the statutory language closely mirrors that of the 14th Amendment, challengers argue it should be interpreted based on how it was understood at the time it was enacted.
They contend that even if the current Court adopts the administration’s interpretation of the Constitution, that was not the prevailing understanding when Congress incorporated similar language into federal law in 1940 — and that original understanding should govern.
“At that time—as the government all but concedes—Congress understood that the Clause’s ‘jurisdiction’ language incorporated the English common-law rule and exceptions, with the sole additional exception of Native American tribal members,” they wrote in court filings.
The Trump administration disputes that view, pointing to historical legal developments such as Jim Crow-era statutes.
In filings, Solicitor General D. John Sauer asked the justices to consider a hypothetical law from a century ago guaranteeing “equal protection of the laws.” At the time, lawmakers might have intended it to permit segregated facilities, but modern courts would interpret it to prohibit segregation, he argued.
Sauer said the same reasoning should apply to the 1940 citizenship statute.
“Because that statute echoes the Citizenship Clause’s language, it is best understood to codify the Clause’s objective meaning, not a late-arising misunderstanding of the Clause,” Sauer wrote in court filings.
Those challenging the policy have indicated they would be satisfied if the Court simply rules that the executive order violates federal law, which would prevent it from taking effect.
Such a ruling, however, would leave open the possibility for Congress to step in and repeal or amend the 1940 statute.
So far, lawmakers have not taken that step, despite years of proposals to limit birthright citizenship.
Republican lawmakers, including former Rep. Steve King, have introduced similar measures over time, including during Trump’s earlier term, but those efforts failed to gain traction.
The current legislative push is being led by Rep. Brian Babin of Texas, who has long advocated for changes to birthright citizenship.
Support for his bill has grown alongside Trump’s renewed focus on the issue. A 2021 version had 31 co-sponsors, increasing to 37 in the following Congress.
The latest version now has 82 co-sponsors, with additional lawmakers joining in recent weeks as the Court prepares to hear the case. New supporters include Reps. Cory Mills, Matt Van Epps, and Scott Perry.
Even so, the proposal has not advanced beyond committee, and its future remains uncertain.
During earlier proceedings in the case last year, Justice Brett Kavanaugh reflected on Congress’s difficulty in passing legislation.
He suggested that this has led presidents from both parties to “push” with “good intentions” to expand their authority through executive actions rather than pursue new laws.
“I think that might be the why,” he said.