On the morning of April 1, 2026, an unusual tension permeated the area in front of the U.S. Supreme Court building in Washington D.C. The incumbent president had announced his intention to attend Supreme Court oral arguments. It was a highly unusual scene, with no readily apparent precedent. President Trump arrived around 10 AM and took a seat in the first row of the public gallery. He left shortly after his Solicitor General concluded the argument. The case concerned an executive order signed on his Inauguration Day, January 20, 2025. The order directly challenged over 128 years of constitutional interpretation that recognized birthright citizenship solely based on place of birth. The case name is Trump v. Barbara. It was the first direct Supreme Court hearing on the birthright citizenship clause of the 14th Amendment. Throughout the more than two-hour argument, both conservative and liberal justices intensely questioned the executive branch's side, leaving the future of birthright citizenship now solely dependent on the Supreme Court's final decision.<\/p>\n
The history of birthright citizenship begins in one of America's darkest chapters. In 1857, the Supreme Court ruled in Dred Scott v. Sandford that people of African descent, free or slave, could not be U.S. citizens. The decision became one of the direct triggers for the Civil War. The 14th Amendment, ratified in 1868 after the war, was intended to overturn the Dred Scott decision head-on. Its core provisions are both succinct and comprehensive. If you are born on U.S. soil and subject to the jurisdiction of the United States, you are a U.S. citizen, no matter who your parents are. The language did not specify race or nationality. The legislative history shows that Congress explicitly discussed and affirmed that the children of immigrants were covered by this provision.<\/p>\n
Thirty years later, this principle was first put to the test by the Supreme Court. Wong Kim Ark, born in San Francisco to a Chinese immigrant couple, was denied re-entry to the United States after visiting China to see his parents at the age of twenty-one. This was during the height of the Chinese Exclusion Act. Enacted in 1882, this law prohibited the immigration of Chinese laborers and was the first federal immigration restriction targeting an entire nationality group. The federal government argued that because he was the son of Chinese parents, he was not a U.S. citizen.<\/p>\n
In 1898, the Supreme Court ruled 6-2 in favor of Wong Kim Ark in *United States v. Wong Kim Ark*. The Court held that a person born in U.S. territory is a U.S. citizen, regardless of their parents\u201c nationality, and that the exception to the \u201dsubject.<\/p>\n
President Trump's executive order hinges entirely on a reinterpretation of the eight words \u201csubject to the jurisdiction thereof.\u201d The essence of the executive order is this: citizenship will be granted to children born in the United States only if at least one parent is a citizen or lawful permanent resident. If both parents are undocumented immigrants or holders of temporary visas such as work or student visas, citizenship will not be recognized.<\/p>\n
Deputy Attorney General Sauer argued that this phrase was understood in the 19th century as the concept of \u201cdomicile.\u201d He stated that this only applied to those who legally resided in the United States with the intention of staying permanently. He mentioned a \u201cnew world,\u201d asserting that the modern immigration environment is fundamentally different from the past.<\/p>\n
The justices\u201c reactions were beyond cold; they were sharp. Chief Justice Roberts immediately retorted, \u201dIt's the same Constitution,\u201c and described part of the government's logic as \u201dvery quirky.\" The question was how a narrow historical exception could be extended to an entire class of undocumented immigrants.<\/p>\n
Justice Neil Gorsuch countered with historical context. In 1868, when the 14th Amendment was ratified, there were no federal immigration regulations. The first federal immigration law, the Page Act, was not enacted until 1875, and comprehensive immigration restrictions began in 1882. The argument that citizenship could be determined by whether one could settle in the U.S. loses its historical basis, as virtually anyone could come and settle in the United States at the time of the 14th Amendment's ratification.<\/p>\n
Justice Amy Connie Barrett dug in from a practical angle: By the administration's logic, shouldn't the freed slaves, the original beneficiaries of the 14th Amendment, also have to meet the residency standard? How many of the newly freed people in the South could prove \u201clawful intent to remain\u201d? \u201cHow does that work in practice?\u201d she asked. Justice Ketanji Brown Jackson touched on the practicalities of enforcement: \u201cAre you going to call a pregnant woman to a deposition?\u201d She asked who would verify the immigration status of a newborn baby's parents, and would they be screened in the delivery room? It's hard to imagine the administrative costs and disruption if hospitals were required to set up a system to check the immigration status of parents at the point of birth.<\/p>\n
Gorsuch and Barrett were appointed to the Supreme Court during President Trump's first term, and Chief Justice Roberts was appointed by President George W. Bush in 2005 and is a conservative. The fact that even conservative justices have shown such skepticism is an unfavorable sign for the administration. Starting in January 2025, several federal courts have successively blocked this executive order, and not a single one has ruled in favor of the administration. The atmosphere of the Supreme Court hearings also points in the same direction.<\/p>\n
The stated goal of abolishing birthright citizenship is to curb illegal immigration. However, a joint study by the Migration Policy Institute and Penn State University predicts the opposite outcome.<\/p>\n
If birthright citizenship is suspended, approximately 255,000 U.S.-born children will be born without citizenship each year. These children will have no viable legal pathway to obtain lawful status as they grow up. They will be unable to obtain driver's licenses, work legally, apply for federal student aid, or receive Social Security numbers. Although born, raised, and educated in the United States, they will become \"unauthorized immigrants\" the moment they turn 18. As a result, the unauthorized population in the U.S. will increase from an estimated 13.7 million today to 14.8 million in 2045 and 17.1 million in 2075. The net increase alone will be 2.7 million by 2045 and 5.4 million by 2075.<\/p>\n
The most noteworthy point is the cumulative effect across generations. By 2075, there will be 1.7 million people who have both parents born in the U.S. but lack legal status. A third-generation class will emerge, whose grandparents were born and raised in the U.S., but they remain undocumented. The research team stated that this paradox will not disappear even in an extreme scenario where the rate of returning immigrants is doubled and illegal immigration is completely blocked in the future. This is because a structure will be created where the undocumented population reproduces itself within the U.S., even if the borders are sealed.<\/p>\n
These structural changes also affect the economy. When the undocumented population increases by millions, the number of people leaving the formal labor market also increases. Tax revenue declines, and the underground economy grows. The intention to reduce illegal immigration ironically leads to an increase in the undocumented population and creates a vicious cycle of rising enforcement costs to crack down on them.<\/p>\n
The administration's primary argument of \"birth tourism\" is insignificant when compared to this scale. While the number of pregnant foreign nationals entering the U.S. for childbirth varies widely from thousands to tens of thousands depending on the estimation method, critics point out that this scale is disproportionate to be the basis for a policy affecting 255,000 people annually. This argument also appears to have lacked persuasiveness in the Supreme Court arguments.<\/p>\n
This issue is not abstract for the Korean community. There are quite a few professionals working in IT, accounting, and trade on H-1B visas, self-employed individuals running laundromats, nail salons, and restaurants on E-2 visas, and couples who had children while studying on F-1 visas. In the Korean communities of New York and New Jersey, it is not difficult to find such families. Even if a child is born in the United States, if they do not receive citizenship, the basis for the child's stay disappears the moment their parents' visas expire. A single variable, such as visa renewal denial, failure to change employers, or business liquidation, can result in the entire family losing their residency status simultaneously.<\/p>\n
The impact goes beyond immigration.<\/p>\n
The ruling is expected by the end of June. However, it is unlikely that this dispute will be completely settled by this ruling. Discussions for a constitutional amendment to revise Article 14 itself have already begun in some parts of Congress. Constitutional amendments face a high hurdle of two-thirds approval in both houses and ratification by three-fourths of the states, making it unlikely to be realized immediately. However, the very act of raising birthright citizenship as a political issue is already a change. This topic is likely to resurface repeatedly in future election cycles.<\/p>\n
If you are a Korean family residing in the U.S. on a temporary visa, even if applying for a green card is difficult at the moment, it is time to thoroughly check if there are any gaps in renewing and maintaining your current visa, and whether your employer's willingness to sponsor immigration has been confirmed.<\/p>\n
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.<\/p>\n
Law Offices of Jin Dong Cho<\/p>\n
NEW YORK OFFICE (Flushing) 35-24 154th Street, Flushing, NY 11354<\/p>\n
(t) 718-353-2699 (f) 718-353-8132<\/p>\n
NEW JERSEY OFFICE 560 Sylvan Avenue, 3Fl., Englewood Cliffs, NJ 07632<\/p>\n
(t) 201-449-0009<\/p>","protected":false},"excerpt":{"rendered":"
A 128-Year-Old Question for the Supreme Court to Answer<\/p>","protected":false},"author":1,"featured_media":2394,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_uf_show_specific_survey":0,"_uf_disable_surveys":false,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_wpcom_ai_launchpad_first_post":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[36],"tags":[],"class_list":["post-2389","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-general"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/choattorneys.com\/wp-content\/uploads\/2026\/04\/newborn-baby-birthright-citizenship.jpg?fit=1200%2C800&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/posts\/2389","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/comments?post=2389"}],"version-history":[{"count":1,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/posts\/2389\/revisions"}],"predecessor-version":[{"id":2395,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/posts\/2389\/revisions\/2395"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/media\/2394"}],"wp:attachment":[{"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/media?parent=2389"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/categories?post=2389"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/choattorneys.com\/en\/wp-json\/wp\/v2\/tags?post=2389"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}