The NPR Politics Podcast - Should all babies born in the United States be citizens?

Episode Date: March 31, 2026

The Supreme Court is set to hear oral arguments Wednesday in Trump v. Barbara, a case challenging President Trump’s executive order denying citizenship to children born to people without permanent legal immigration status in the United States. We discuss the politics underlying the case and the potential consequences of overturning the Constitution’s guarantee of birthright citizenship. This episode: political correspondent Ashley Lopez, Supreme Court and justice correspondent Carrie Johnson, and senior political editor and correspondent Domenico Montanaro.This podcast was produced by Casey Morell and Bria Suggs, and edited by Rachel Baye. Our executive producer is Muthoni Muturi.Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.To manage podcast ad preferences, review the links below:See pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics podcast. I'm Ashley Lopez. I cover politics. I'm Carrie Johnson. I covered the Supreme Court in the Justice Department. And I'm Domenico Montanaro, senior political editor and correspondent. And today on the show, the Supreme Court hears arguments tomorrow about whether all baby is born in the United States should be granted automatic U.S. citizenship, arguably one of the biggest cases before the court this term. Carrie, before we get into the details of this, can you remind us what prompted this? On his first day back in the White House, President Trump signed an executive order. that was designed to prevent children born to immigrants in the country without long-term legal status from automatically becoming citizens. He said U.S. citizenship is a priceless gift. He talked about the 14th Amendment, and it's guaranteed that people born are naturalized in the U.S. and subject to the jurisdiction thereof are citizens. And he talked about how that amendment basically overturned the Dred Scott decision and the idea that enslaved. people who are newly freed and their children should become American citizens was like basically the whole intent of the 14th Amendment. But he cast some doubt or cast a shadow over people

who were in the U.S. either illegally or on a short-term status, like with work visas or student visas or travel that they had overstayed. And Domenico, I want to talk about the politics of all this. What is President Trump trying to accomplish here? Well, obviously, immigration has always been a huge animating factor for him and for his base. I mean, it was one of the first things he talked about when he launched his political campaign in 2015. And here we are, you know, a decade later. And it's really still the thing. And coming into the second term for Trump, they really had a very clear agenda on dealing with immigration.

And it was less about him trying to understand what the White House meant or how to figure out power. He came in on day one and had an executive order about wanting to undo birthright citizenship. And, you know, the backdrop to that is that a lot of conservatives in the country have been really irritated with the demographic change in the country over the last 30 years, especially the huge influx of Latinos in the country. Of course, Asian Americans are also the fastest growing group in the country. But when it comes to birthright citizenship, it really is one way that. a lot of people on the right, hardline immigration folks, feel like is a way to stem the tide of this demographic change, even though whites in America are headed very quickly toward being no longer the majority in the country. And no matter what they do, putting up a wall or, you know, stopping the number of people who can get citizenship automatically in the country, no matter what that's going to change. Because already those who are under 18 is majority minority in this country.

Yeah. And Carrie, I mean, this is from the far right of like immigration policy. I mean, somewhat argue pretty fringe legal theory that's at work here, right? Yeah, for many, many, many decades, birthright citizenship has been taken as a given kind of a foundational principle. And yet over the last several years, people like John Eastman, a lawyer who helped President Trump basically with a legal theory that Trump used to try to overturn the results of the 2020 election, John Eastman and some other scholars along those lines have been really advancing a reimagining of the 14th Amendment and this concept of birthright. And so they've been talking kind of in the wilderness. Now the Supreme Court is taking this seriously. And it's really a major, major issue.

Yeah. I want to talk about the folks who are opposing this. What legal arguments are you expecting to hear from the people who are fighting President Trump's executive order? Right. The ACLU and a number of groups have challenged this executive order. They basically argue that if you look to the history, the text of the 14th Amendment and the American legal tradition, they win on all of those counts. I listened to a call last week that included Cody Woffsey from the ACLU. Here's what he had to say. The Trump administration seeks to rewrite the text of the 14th Amendment. Amendment and redefine who counts as an American. But as every court has held, the executive order

is profoundly unconstitutional. In America, if you are born here, you belong here. And remember, the Supreme Court actually heard something related to birthright citizenship last year. In that case, the court did not cover the merits, the substance of the issue. Instead, it issued a ruling about universal injunctions. And so this is kind of the court's second crack at the issue. And now this birthright issue is fundamental to the case. So Trump himself recently posted on Truth Social about this case. And he said, quote, it is about the babies of slaves. We are the only country in the world that dignifies this subject with even discussion, he wrote, look at the dates of this long ago legislation,

the exact end of the civil war. And quote, we should note up top that that is not true. There are other countries, right, that have similar laws like this. Yeah, there are. I mean, the U.S. is a bit of an outlier, though. because it's only about three dozen countries, you know, across the world that have birthright citizenship, automatic citizenship, for anyone born in the country, mostly in the Western Hemisphere. Interestingly, it really was sort of a product of colonization. It was in a lot of areas in South America and in Africa. A lot of African countries, when they gained independence, got rid of it because it really was an effort by a lot of these mostly white colonial powers to be. able to offset the numbers of native population and be able to have more strength politically in those countries. So it's sort of ironic now that what's taking place in this country

for why it's intended to be changed is mostly being pushed in part because of the demographic change that's leading to whites being in the minority in this country. Carrie, so we know what the president has said about this, but I do wonder what the Justice Department's arguments will be. A senior Justice Department official this week basically said that the 14th Amendment was designed in the era after the Civil War. And very clearly, the intent of that amendment was to ensure that the children of newly freed slaves were citizens of the U.S. But DOJ also argues that there's this concept of allegiance, that people are here only temporarily. People who are here on work visas or student visas.

or student visas or people who come here as tourists and maybe overstay and have children that they don't have the same kind of allegiance to the U.S. that's needed to become a citizen. And so I expected the Solicitor General John Sauer to raise that point of loyalty or allegiance in arguments tomorrow when he has his crack at it. And they talk about birth tourism. And that is a thing that happens. It's not huge numbers, but it is something that happens in this country where you have wealthy people from other parts of the world who might come to the United States. They also, you know, would talk

about in a in a negative way, what they would call in past presidential campaigns, quote, anchor babies, where you had people who would immigrate to the country illegally and then have children here in hopes that they'd be able to stay in the country. But we have to remember that this is in the Constitution, right? The 14th Amendment, section one of that 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. And, you know, in normal times, if somebody wanted to change an amendment to the Constitution, it would take a two-thirds majority in the House, a two-thirds majority in the Senate, and then it would need three quarters of state legislatures to repeal that. This way, though, Trump, as we've seen with

other things, is trying to take a shortcut. Yeah, it would be a much bigger political project to take on. Near impossible. I mean, look what happened with the ERA, the Equal Rights Amendment, which had lots of momentum behind it and never was able to get the three quarters of legislatures that it needed in time. Interestingly enough, I've been talking with some legal scholars about how this argument might go tomorrow. And it's important to note here that we're not just relying on the 14th Amendment, but that Congress in 1940 and 1952 passed federal immigration laws that use the same language as the 14th Amendment does about subject to the jurisdiction thereof. And they think that depending on how the conservative justices kind of congeal around these arguments, that they may decide not to touch the constitutional question and resolve this case on those federal statutes alone, that means that the constitutional question is open for another day and perhaps another Congress to address in some way. Another confusing thread the needle kind of opinion from the Supreme Court potentially then. Threading the needle, but also deciding a smaller question rather than an enormous question.

Because the Supreme Court's already upheld the birthright citizenship, right, in previous case. There have been a lot of cases. The one that the challengers to the executive order point two is from 1898. It involves a man born in California to Chinese-born parents. He traveled to China to see his parents. When he came back, they wouldn't let him back in the country. And the Supreme Court ruled that he was a citizen of the U.S. and should have all those privileges. All right. We're going to take a quick break. More in a moment. And we're back. And Kerry, let's imagine that the Supreme Court sides with the Trump administration on this. What would the immediate effects be? This would really be earth shattering in a lot of ways. And maybe the Trump administration intended just that to happen. I've been speaking with advocates. They say that year over year, this is affected to touch as many as 250,000 babies a year. And in the next 20 years, nearly 5 million babies.

And as for people who are already here, that executive order, which was signed in January 2025, basically started the clock 30 days later. So we're talking about prospective kids born in this country. And advocates I've been hearing from say the impact there could also be huge. I heard from Artie Koli from the Asian Law Caucus. Here's what she had to say. Parents would have to prove immigration status before their child's citizenship is recognized. That sounds manageable until you understand the reality. The databases used to verify status are notoriously unreliable.

A birth certificate is how Americans get a passport, a driver's license, enroll in school, access health care. So those are all very basic functions, and it would upset a whole bunch of systems that have been placed for decades and decades and decades. Yeah, and I do wonder what this means for children born in sort of weird situations. right, whether their parentage is unclear. What kind of situations is this raised for babies under those circumstances? Yeah, in the worst case scenario, those babies would be considered stateless. They would have no clear citizenship. And, you know, that's a very significant thing. Yeah. Domenico, what sense do you have of like where public opinion falls on this issue? I know we have a good sense of a lot of immigration issues, but this is, as we mentioned, a fringe legal thing.

theory, what do we know possibly of where the public falls on this? Yeah, I mean, the polls are kind of all over the place, frankly, on this. In general, what they find is that people are largely in support of birthright citizenship if you're born to U.S. citizens, right? So that's sort of no-brainer for a lot of people. Nine and ten in a Pew Research Center poll found that they were in favor of that. At issue here is, obviously, what the Trump administration is arguing against, which is giving citizenship to babies who are born to people who are in the country without permanent legal status or across the border illegally. And that's where the support really sort of plummets. Pew had it at about 50 to 49, a split on people being in favor versus against it. UGov, another

poll had it much lower than that, only about 31% in favor. And a lot of the issue here is how questions are asked. Because Public Religion Research Institute, Civic Health and Institutions Project, or CHIP 50, both very good polls. They had much higher support for this, regardless of citizenship status. They found majorities in favor. But what both of those polls did was tell people that it was in the U.S. Constitution. So they say the U.S. Constitution says X. Do you think it should continue, et cetera, et cetera. Both of those surveys found much higher support than the surveys that did not include that it's in the U.S. Constitution. I think that really shows a lot of the volatility around this issue politically. Not a lot of people are that dug in on this. And what that will mean

politically is making an argument messaging-wise to get support behind one argument or the other for why this should stay or why this should go. And clearly the Trump administration knows this. They've been pushing for that. Of course, none of that matters at the Supreme Court when it comes to legal arguments, though. Well, I guess my next question is, like, where do you see voters sort of fall when we're looking specifically at party breakdowns or maybe by race? Well, not shockingly, right? There's a big divide by party. Democrats overwhelmingly in favor of keeping this. You know, Republicans overwhelmingly against. But what we're seeing is also divides by race, age, and how people get their information. Black people, Latinos, much more in favor of keeping birthright citizenship as is. Whites, less so. By age, younger people, more in favor of keeping it as is. And the older you get, the less likely that they're in favor. of this and by how you get your information. We're so fractured with how we get our information. It's such an a la carte society in that way. And if you're watching Fox News, you are very much against this. And if you're watching information or taking an information that's even further right,

you're even more against it. So a really interesting way to sort of break down how people are getting this messaging. And when you're thinking about delivering that message, it can't just be on your chosen channels of people who are listening to you and normally get your information, you got to kind of be everywhere to be able to sway any of the people who might think differently. I do wonder what this says about the Supreme Court and how conservative the court has gotten in recent years. I mean, do you have thoughts on just the fact that the court wants to take up this question? This court has been wanting to achieve a lot in a relatively short period of time. Remember, there's a six to three conservative supermoder.

President Trump has already named three justices of the nine, and they've been quite welcome and able to overturn some kind of fundamental precedents in this country already. It wasn't that long ago that we had the Dobbs case, which threw out Roe v. Wade, and we're waiting on the edges of our chairs right now for what this court intends to do with the V. Rights Act. So the idea that they would even take a question with respect to birthright citizenship says a lot about how conservative this court is politically and how open they are to rethinking what was previously considered to be settled law for generations or over a century. I am also curious about our politics and this country's legacy that this core part of

reconstruction, this amendment could potentially be overturned. Well, you know, one of the things that advocates I've been talking to have signaled is that if the Supreme Court sides with the Trump administration and upends the kind of common understanding of the 14th Amendment we've had really since the post-Civil War era, that means that a number of other things we thought were settled could be really unsettled. Once you start to open up the 14th Amendment, which, you know, helped form the basis of many of our major civil rights laws in the last century or so and many other understandings in some of our fundamental rights. It's hard to say where things end. And of course, this Trump executive order from last year was just talking about prospectively. That's new babies born in the U.S. since he signed that order. But these advocates worry that there's nothing that would then prevent the Trump administration from going back and trying to revoke citizenship from other people. They said that there's some historical precedent for that involving South Asian people here in the U.S.

And they really worry about it. You know, I think in terms of what this means broadly, you know, I think that the entirety of Trump's time on the political scene could be summed up by the idea of what it means to be American. Is it a country that, you know, continues to lead on democracy or one that's more inward looking? Is it a country that continues to welcome immigrants or is it a country that says, you know what, there's been enough of that. We need to look more toward who's already here and change who should be here. And I think that all of that is going to get figured out with cases like this, but also moving forward in the next presidential election, who winds up being the leader and being able to say, what is the vision?

for America. Who belongs here? And what does it mean to be American? All right. Well, let's leave it there for today. NPR has live coverage of tomorrow's Supreme Court hearing. You can listen on the NPR app, NPR.org, or on some local stations. And we will wrap up what happened during the hearing on this podcast tomorrow. Make sure you don't miss it. Hit the follow button wherever you get your podcasts. I'm Ashley Lopez. I cover politics. I'm Carrie Johnson. I cover the court and the Justice Department. And I'm Domenico Montanaro, senior political editor and correspondent. And thank you for listening to the NPR Politics Podcast.