In 1895, a young man called Wong Kim Ark was detained at the Port of San Francisco when he returned from a trip to China. He was born in San Francisco to Chinese immigrant parents — who had returned to China by then — but authorities maintained that he was not an American citizen, on account of his parents being subjects of the Chinese Emperor.
Wong fought a protracted legal battle and in 1898, the Supreme Court ruled in his favor, stating that since Wong was born in the United States, he was an American citizen, even though his parents were not American citizens or permanent residents.
A century and a quarter after that landmark ruling that set a strong precedent for birthright citizenship, Milpitas-based tech professional Preeti Deshpande is unsure whether her second child due soon, will be born an American citizen.
On January 20, 2025, President Donald Trump signed an Executive Order revoking birthright citizenship for children born to parents who are not citizens or lawful permanent residents. This policy was to go into effect on February 20, but legal challenges have temporarily stayed this order from going into effect. Now, the Supreme Court will consolidate three of these lawsuits brought against the Trump administration and begin hearings starting May 15.
But curiously, the Supreme Court bench will not be hearing arguments about whether revoking birthright citizenship is unconstitutional or not.
So what is the hearing about?
Quite simply, the Supreme Court will deliberate whether lower courts like U.S. District and Appellate Courts have the authority to issue nationwide stays.
After President Trump signed the Executive Order, 22 state attorneys general, immigrant rights groups, and individuals filed lawsuits against the Trump administration in District Courts across the country. Of these, judges in the states of Washington, Maryland, New Hampshire, and Massachusetts ruled in favor of the plaintiffs and issued nationwide injunctions against the Executive Order.
In response, the Trump Administration appealed to the Supreme Court for an emergency stay on these injunctions in March. The administration argued that the lower courts should only be allowed to grant injunctive relief to the parties represented by the plaintiffs, and that the injunctions should not apply nationwide. Additionally, they have challenged the authority of the state Attorneys General to bring such a lawsuit on behalf of the people in their state. In its appeal, the administration states that it sees nationwide injunctions as an overextension of the lower courts’ authority, which interferes with the Executive branch’s ability to govern.
The administration wants to “narrow those injunctions only to the individual plaintiffs and the identified members of the plaintiff organizations who brought the cases against the administration,” said Winnie Kao, senior counsel for the Asian Law Caucus (ALC). “That is, frankly, crazy… because if the Supreme Court ends up agreeing with that, the injunctions would only apply to babies born to that limited number of people, which is chaotic and disjointed.”
The Asian Law Caucus, along with the ACLU and other advocacy groups, filed suit against Trump’s Executive Order in New Hampshire. They secured an injunction against the Order, but the suit was not a part of the consolidated cases that the Supreme Court will hear starting May 15.
Kao explains that through its appeal, the Trump administration is challenging lower courts’ authority to issue nationwide injunctions in general, not just with respect to the birthright citizenship order.
“These nationwide injunctions have been a bane to the Trump administration that has stymied their agenda in a number of contexts,” she said. “So yeah, that [the hearing] will have broader implications on other cases as well.”
The “Merits” Question
The question of whether Trump’s birthright citizenship order is constitutional, is still being decided in lower courts. Kao referred to this as the “merits” question, and pointed out that so far, all the District Courts have ruled against the Executive Order, and Appellate Courts have upheld those rulings.
“If the government wants to change the exceptional American grant of birthright citizenship, it needs to amend the Constitution itself. That’s how our Constitution works, and that’s how the rule of law works,” the Washington State Standard quoted U.S. District Court Judge John Coughenour as saying. Judge Coughenor issued the preliminary injunction in the suit brought against the Trump administration in Seattle, Washington. “Because the president’s order attempts to circumscribe this process, it is clearly unconstitutional.”
The constitutional basis for birthright citizenship comes from the 14th Amendment of the Constitution, which was ratified in 1868. It stated that “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.” This was a landmark amendment that extended citizenship to children of formerly enslaved people, shortly after the Civil War.
In its Executive Order, the Trump administration contended that American jurisdiction as it appears in the 14th Amendment does not extend to individuals who are not citizens or permanent residents. But four federal judges have blocked the executive order, disagreeing with the administration’s interpretation.
In her ruling in the Maryland case, U.S. District Judge Deborah L. Boardman said, “No court in the country has ever endorsed the president’s interpretation. This court will not be the first.”
Impacts: Short-Term and Long-Term
If the Supreme Court finds that the lower courts do not have the authority to issue nationwide injunctions, and Trump’s executive order goes into effect, it will impact undocumented immigrants, international students on F-1 or J-1 visas, immigrant workers on temporary work visas, and their dependents.
New Jersey Attorney General Matt Platkin and Washington Attorney General Nick Brown have both said in public statements that if it goes into effect, the Executive Order will strip citizenship off 150,000 babies born this year alone.
A look at the numbers suggests that more than a million individuals from the Indian diaspora might be impacted because of this Executive Order. They include 290,000 Indians who received or renewed their H-1B visas in the year 2024 alone; that excludes thousands of immigrants on H-1B dependent visas — like Preeti Deshpande. Other Indian-origin immigrants who could be affected include undocumented immigrants, estimated between 375,000 and 725,000, and more than 377,000 international students as of 2023, as indicated by a SEVIS report.
“This was very clearly an attack not just on immigrants, but also, I think particularly on South Asians and Indian Americans, given the huge numbers we represent in these categories,” said Manjusha Kulkarni, Executive Director of the AAPI Equity Alliance.
The tangible, short-term effects of revoking birthright citizenship would mean that infants born in the U.S. to temporary status holder parents might become stateless (depending on how their parents’ country of origin defines citizenship), and have barriers in accessing healthcare, education, and other social services from a young age in the U.S.
Long term, Kulkarni is afraid that revoking birthright citizenship — a policy that allowed herself to become a U.S. citizen — will weaken the sense of belonging that Indian immigrants feel towards the United States.
“It [birthright citizenship] enables communities to create roots here with a long-term adherence to what it means to be American, and to attaining the rights and privileges of American citizens.”
What’s Next?
The Supreme Court has set aside one hour for oral arguments on May 15, but the hearing is most likely to go on for longer.
Kao is confident that even if the Supreme Court rules in favor of the administration, the Executive Order will not go into effect immediately.
“There’s a lot of practical pieces of it that need to be thought through, so we don’t expect that it would be immediate,” she said. “Even in the worst-case scenario, there would be a period of time before anything changes.”
With a due date in late May, Deshpande is cautiously optimistic that her child will be born an American citizen. But for the moment, she is choosing to focus on her own health to ensure the best possible health outcomes for herself and her child.
“If at all their destiny says these kids should get citizenship, they will,” she said.
Kao and Kulkarni also emphasized that this hearing should not impact expecting parents’ decisions whatsoever, and that they should follow professional medical advice regardless of the hearing.
As for the rest of the diaspora, Kulkarni urges them to speak up and fight back against what she believes is an escalation of the Trump administration’s anti-immigrant narrative.
“Unfortunately, we’ve been told often by our parents and even culturally, to keep our heads down and just to work hard. Those days are gone,” she said.
“Democracy is not a spectator sport. We really have to stay on top of the news and then call our Congresspeople every single day in Democratic as well as Republican Districts. They do act based on pressure, and political pressure is one of the only things that we have control over right now.”
