Trump loses in the Supreme Court, but takes the battle to Congress: can he eliminate birthright citizenship in the US?

With six votes in favor and three against, the judges of the Supreme Court, conservative tendency, decided to maintain the precedent of 150 years ago by which all babies born in the United States automatically receive their citizenship.

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When he assumed power for the second time, January 20, 2025, Trump signed an executive order ending the citizenship of those born in the United States, children of undocumented foreign parents or who remained in the United States on temporary visas.

For Trump, birthright citizenship opens the door for undocumented foreigners to “improperly benefit” from the laws of the United States.

The order of trumpwhich was going to affect some 255,000 children a year, was annulled.

But the president did not give up. On Tuesday he demanded that the US Congress act. “Congress should begin working today to end birthright citizenship, a costly and unfair practice for our country. You will have my full and complete support!” he wrote on his Truth Social network.

The Commerce spoke with the lawyer immigration expert Ysabel Lonazcoby Lonazco Law, who considers that The Supreme Court ruling represents a forceful limit on presidential power by reaffirming that citizenship by birth is a guarantee protected by the Constitution and that no president can modify it by executive order.

Although he considers that the decision leaves a narrow window for the administration trump try to promote changes through legislative means, Lonazco maintains that this strategy faces the same constitutional obstacle and would have little chance of succeeding. In his opinion, the ruling not only preserves a legal precedent in force for more than a century, but also sends a clear message: Neither the Executive nor Congress can restrict a constitutional right without previously modifying the Magna Carta, a process that today is politically very difficult.

—What is the main legal significance of this Supreme Court ruling on citizenship by birth?

The Supreme Court ruling confirms that no president is above the Constitution, no executive order can modify a constitutional guarantee as important as birthright citizenship.

— If you had to summarize in one sentence what this Supreme Court decision means for the future of United States immigration policy, what would it be?

The Constitution is respected. Before her, there are no shortcuts that work. The Constitution is not governed by temporary immigration policies, but by a deeper principle: the protection of every person who is, physically and truly, within this great nation that we proudly call the land of the free.

— Does the decision definitively close the debate on birthright citizenship or does it leave any doors open?

No. Judge Brett Kavanaugh’s opinion left a window for the administration to suggest legislative action, finding that there was no violation of the Constitution but a violation of a federal law, which was taken advantage of by Republicans to seek a law that codifies their proposal without the need for an amendment, again trying to circumvent the Constitution.

—What arguments did the majority of the judges use to reject Trump’s position?

Supreme Court Chief Justice John Roberts noted that the framers of the Fourteenth Amendment, after the Civil War, deliberately defined citizenship broadly, rejecting the positions of those who sought to limit it. The majority relied heavily on the precedent of United States v. Wong Kim Ark (1898), a case in which the Court interpreted the phrase “subject to jurisdiction” in the amendment as granting automatic citizenship to virtually everyone born in the country, with the only exception in force today being the children of foreign diplomats.

In my years as an immigration professor at Salt Lake Community College we always talked about the case United States v. Wong Kim Ark (1898), a case from 128 years ago. In Wong Kim Ark, a legal precedent was set that confirms what the 14th Amendment says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State in which they reside.”

Roberts couldn’t have said it better: “Citizenship, then and now, was the right to have rights: to participate freely in our political community.” “The Framers of the Fourteenth Amendment extended that promise to ‘every person born free in this land.’ Today we fulfill that promise.”

— Trump has said he will now take this battle to Congress. Do you really have any chance of achieving your goal this way?

Very few. Congress can propose laws but the obstacle will be the same, the Constitution. If the Legislature attempts to modify the right to citizenship through legislation, this would immediately be litigated in courts ending in the same place, the Supreme Court.

—Can a law passed by Congress eliminate or restrict birthright citizenship?

In principle, no, if that law contradicts what the Constitution guarantees according to the interpretation that the Supreme Court has just reaffirmed. An ordinary law cannot modify the scope of a constitutional amendment; That would require another amendment, a process that requires two-thirds majorities in both houses of Congress and ratification by three-quarters of the states, something extremely difficult to achieve in the current political climate.

— What impact would Trump’s executive order have had if it had been validated by the Supreme Court?

The impact would have been disastrous and inhumane. Not only because those affected are not only undocumented people, but also people with temporary visas, international students, and residency applicants. A category of children born in the United States without automatic citizenship would have been created.

— After this ruling, how far is Trump really from fulfilling his promise to end birthright citizenship?

Quite far away. A political promise will remain just that, an unfulfilled promise. The executive order that tried to cut off the Constitution only led to a country divided as to who has the right to citizenship when this was something that was in the Constitution for 158 years.

Beyond a political promise, this decision tells the world that despite having a conservative Supreme Court, this Court is not willing to distort the law to endorse the expansions of power that the Executive has attempted.