WASHINGTON — With President Donald Trump watching in the courtroom, the Supreme Court justices gave a mostly skeptical hearing Wednesday to his claim that he may revise the Constitution to end birthright citizenship for babies born in this country to parents who were here unlawfully or temporarily.

Solicitor General D. John Sauer said birthright citizenship “rewards illegal aliens,” and he urged the court to rule that the children of temporary visitors and unlawful immigrants should not be deemed as citizens at birth.

But most of the justices said the Constitution had been understood for more than a century to promise citizenship to “all persons born” here, regardless of the status of their parents.

Justices Neil M. Gorsuch and Amy Coney Barrett said the 19th-century debates over citizenship focused on newborns, not the legal status of their parents.

“It’s striking that in none of the debates do we have parents discussed,” Gorsuch said. “The focus is on the child, not on the parents.”

Barrett questioned why Sauer focused his argument on whether parents had an “allegiance” to the United States.

The framers of the 14th Amendment, which grants citizenship to those born or naturalized in the United States, including former slaves, “don’t focus on the parents. It’s child,” she said.

Gorsuch and Barrett were appointed by Trump, but voted in February to strike down his sweeping tariffs.

Liberal Justice Elena Kagan told Sauer he was seeking a major revision in long-standing American law.

“Birthright citizenship has been the rule for a very long time,” she said. Given this long history, she added, why “accept this revisionist history?”

American Civil Liberties Union attorney Cecillia Wang pointed out that even during World War II, when Japanese Americans were sent to incarceration camps, imprisonment did not affect their newborns.

Even then, when the United States “was detaining Japanese nationals who were deemed enemy aliens, when those enemy aliens had babies in these detention camps, everyone agreed that those babies were U.S. citizens,” she said.

In response, Sauer argued this understanding of birthright citizenship had been wrong from the start.

He said the citizenship rule did not extend to the children of immigrants and visitors who were “subject to a foreign power.” He said those persons did not have “allegiance” to the United States and therefore, were not citizens.

“We’re in a new world now,” Sauer said, because of illegal immigration.

“It’s a new world. It’s the same Constitution,” responded Chief Justice John G. Roberts Jr.

Only Justices Samuel A. Alito Jr. and Clarence Thomas appeared to agree with the administration’s argument.

Alito said the 19th-century debates may be misleading because there were no federal immigration laws then.

“What we’re dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration,” Alito said.

Trump proposed his potentially far-reaching change last year in an executive order. It has been blocked by judges across the country and has never been in effect.

His lawyers contend they seek to correct a 160-year misunderstanding about the Constitution’s promise that “all persons born” in this country are deemed to be citizens.

The president’s executive order “restores the original meaning of the citizenship clause” and would deny “on a prospective basis only” citizenship to the “children of temporarily present aliens and illegal aliens,” Sauer wrote in his appeal.

But the first hurdle for Trump and his lawyers may concern the powers of the president.

In February, the court blocked Trump’s sweeping worldwide tariffs on the grounds the Constitution gave Congress, not the president, the power to impose import taxes.

By comparison, the president has even less power to set the rules for U.S. citizenship. The Constitution gives Congress the power to “establish a uniform rule of naturalization.”

After the Civil War, Congress adopted the Civil Rights Act of 1866 that said “all persons born in the United States and not subject to any foreign power, including Indians not taxed, are hereby declared to be citizens of the United States ... of every race and color.”

To make sure that rule stood over time, it was added to the Constitution in the 14th Amendment. Its opening line 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 wherein they reside.”

In 1898, a conservative Supreme Court upheld that rule and affirmed the citizenship of Wong Kim Ark. He was born in San Francisco to Chinese parents who later returned to China.

“The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory,” the court said. “In clear words and in manifest intent, (it) includes the children born, within the territory of the United States, of all other persons, of whatever race or color.”

In 1952, when Congress revised immigration laws, it added the same provision without controversy. Lawmakers set multiple rules for deciding disputes over American parents who live abroad, but the first rule was simple and undisputed.

“The following shall be nationals and citizens of the United States at birth: a person born in the United States and subject to the jurisdiction thereof,” the law said.

Critics say Trump’s plan could replace a clear and simple rule with a confusing and complicated one. States would have to look into the history and legal status of a newborn’s parents to decide whether they met the new qualifications.

Until now, a valid birth certificate had been sufficient to establish a person’s U.S. citizenship.

Last week, Trump was urging Senate Republicans to pass a new election law that would require millions of Americans to present a birth certificate as proof of their citizenship if they register to vote or move to a new state.

“Proving citizenship to vote is a no-brainer,” the White House said.

This week, however, Trump’s lawyers are urging the court to rule that birth in this country is not proof of citizenship.

There is a “logical inconsistency” here,” said Eliza Sweren-Becker, a voting rights expert at the Brennan Center.

In the legal battle now before the court, the key disputed phrase is “subject to the jurisdiction.” That has been understood to mean that people within the United States are subject to the laws here, except for foreign diplomats and, for a time, Native Americans who lived on tribal reservations.

But Sauer contends it excludes newborns who are “not completely subject to the United States’ political jurisdiction” because their parents are in this country unlawfully.

Lawyers for the American Civil Liberties Union called this a “radical rewriting” of the 14th Amendment, which says nothing about the parents of a newborn child.

If upheld, this order could apply to “tens of thousands of children born every month, “ they said, “devastating families around the country.” But worse yet, they said, the outcome “would cast a shadow over the citizenship of millions upon millions of Americans, going back generations.”

Some legal experts predict the court may rule narrowly and reject Trump’s executive order because it conflicts with federal immigration laws. Such a ruling would be a defeat for Trump, but it could allow Congress in the future to adopt new provisions, including a limit for expectant mothers who enter this country to give birth.

_____

©2026 Los Angeles Times. Visit at latimes.com. Distributed by Tribune Content Agency, LLC.