WASHINGTON — The Supreme Court smacked down President Trump’s executive order denying birthright citizenship to children of illegal immigrants and tourists Tuesday, quashing a marquee policy of his for the second time in under five months.

Trump’s day one order had been in limbo amid a legal battle over whether it violated the 14th Amendment, which states: “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.”

The court ruled 5-4 that even those “born in the United States to parents unlawfully or temporarily present” are covered by the equal protection amendment, meaning a change to the Constitution would be required to change their status — the worst-case scenario for the White House. 

A sixth justice, Brett Kavanaugh, found that the order did not violate the 14th Amendment, but did violate federal law from the 1940s and 1950s — and a change in the status of children born to foreigners could be brought about by Congress alone.

Trump and his allies seized on the Kavanaugh rationale to attempt a long-shot fix in Congress, rather than by way of constitutional amendment.  

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“The [Supreme Court] majority tried to constitutionalize unlimited birthright citizenship. But Justice Kavanaugh MAY have left Congress a door,” Sen. Eric Schmitt (R-Mo.) wrote on X.  “I’m filing legislation to walk through it.”

Trump sarcastically said the birthright citizenship ruling was a gift to China, as the New York Post previously reported how often pregnant Chinese women were taking advantage of the birth tourism loophole. Trump had long warned that birthright citizenship was driving up illegal border crossings and pledged to end it as part of his broader immigration crackdown.

“The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process,” Trump wrote on Truth Social. “No long and unwieldy Constitutional Amendment is necessary!”

However, writing for the majority, Chief Justice John Roberts rejected this “dramatically revisionist view” of the 14th Amendment and was joined in the majority by fellow conservative Amy Coney Barrett and liberal Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor — a rare combination on the divided court.

“Citizenship, then and now,” Roberts concluded, “was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”

The opinion didn’t appear to explicitly preclude legislation from Congress to adjust birthright citizenship, but its constitutional finding makes it unlikely to hold up.  Multiple legal experts have warned that Congress can’t end the policy on its own and that an amendment would be needed following Tuesday’s decision.

Conservative justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented, with Alito arguing in a blistering opinion that the 14th Amendment “confers citizenship on only those children who, at birth, owe allegiance solely to this country.”

“This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake,” he fumed. “…The Fourteenth Amendment dictates who must be a citizen, but it does not address who may be a citizen by Act of Congress.”

“The Court’s interpretation saddles this country with an ancient British rule that even the United Kingdom has abandoned, as have other countries whose legal systems share the same pedigree,” he went on. “The Court’s interpretation preserves a powerful incentive to enter or remain in this country illegally.”

Thomas was similarly scathing, writing that “the Court has repurposed the Fourteenth Amendment to protect its own set of preferred rights that the Reconstruction Congress never contemplated and that cannot find support in its text. Today, the Court does so again by recognizing a constitutional right to citizenship for the children of all foreign birth tourists and illegal aliens.

“I am not sure that today’s opinion will stand the test of time,” Thomas added. “The Citizenship Clause ‘added greatly to the dignity and glory of American citizenship.’ Today’s opinion devalues that citizenship.”

More than 250,000 babies born in the US each year would have been affected by the executive order, according to research by the Migration Policy Institute and Pennsylvania State University’s Population Research Institute.

Trump became the first-ever sitting president to attend Supreme Court oral arguments when the justices heard the case April 1, underscoring the high stakes.

The administration had not been expected to prevail, with many experts expressing skepticism that Trump could unilaterally restrict the definition of birthright citizenship via executive order.

In February, Trump was dealt a similar blow when the Supreme Court ruled that he couldn’t use the International Economic Emergency Powers Act (IEEPA) to impose customized tariffs on foreign countries at will.

The simplest way to add a constitutional amendment altering the definition of birthright citizenship is to have it approved by a two-thirds vote of the House and Senate along with 38 of the 50 state legislatures — a near-impossibility given ongoing political polarization.

A key precedent in the birthright case was the 1898 US v. Wong Kim Ark ruling, which dealt with a dispute over the status of a man born to Chinese immigrants who were in America legally but barred from being US citizens due to the Chinese Exclusion Act of 1882.

Ultimately, the Supreme Court sided with Wong and ruled that almost all native born children in the US automatically become citizens unless they are the offspring of occupying hostile forces, foreign rulers or diplomats, or born on foreign ships in US ports.

During oral arguments, Solicitor General John Sauer pointed out that the Wong Kim Ark case dealt with a child of legal, domiciled immigrants rather than illegal aliens.

Roberts rejected the idea of any difference between the two, writing that “the Court exhaustively canvassed the text and history of the Citizenship Clause.

“It traced an unbroken line from the English common law, into the founding and antebellum eras, and through the debates, to the Clause’s ratification,” he added. “Yet at no point did the Court identify any evidence in the historical record that the ratifiers of the Fourteenth Amendment thought themselves to be imposing a domicile limitation.”

The case decided Thursday, Trump v. Barbara, stems from a challenge by three people left in limbo by the order.

Barbara is a Honduran asylum applicant who gave birth in October of last year. Susan is a Taiwanese citizen in the US on a student visa whose daughter was born in April 2025. The baby’s US passport application was in progress at the time of the suit. The third is Mark, a Brazilian applicant for permanent residency whose son was born in March 2025 and initially received a US passport.

All three filed suit under pseudonyms, alleging that the order unlawfully stripped their children of US citizenship and its attendant benefits, including Social Security, Medicaid, and food stamps.

A New Hampshire federal judge issued a preliminary injunction and certified the plaintiffs’ children and others in a similar position as a nationwide class.

“Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land,'” Roberts concluded his opinion.

“We keep that promise today.”

With Post wires