Gregg Jarrett Breaks Down How Trump Could Sway Supreme Court On Birthright Citizenship

Fox News legal analyst Gregg Jarrett said Monday that President Donald Trump could win in his push to restrict birthright citizenship.

The Supreme Court will hear a case Wednesday that could redefine American citizenship after Trump signed an executive order to end birthright citizenship for children of undocumented immigrants and temporary visa holders. Appearing on “The Evening Edit,” Jarrett said the president may have a credible path to influence the court.

“The media, Liz, will tell you that Trump’s going to lose. I’m not so sure. He does have a very credible argument in denying automatic citizenship to children of parents who were here illegally,” Jarrett told host Elizabeth MacDonald. “Those who wrote the 14th Amendment never intended for it to apply to people who broke the law to come here and have no permission to even be here. That’s why they inserted the key phrase ‘subject to the jurisdiction thereof’ into the 14th Amendment.”

Jarrett said the 14th Amendment limits automatic citizenship to those fully under U.S. authority, noting that children born to parents living unlawfully in the country may not meet that requirement.

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“It’s a condition of allegiance to the United States. But the mere act of setting foot on U.S. soil, that doesn’t necessarily constitute allegiance, especially the millions of illegal migrants who have remained in the shadows. They’re not paying taxes,” Jarrett added. “They don’t file returns. They didn’t obtain Social Security numbers. How can they be, quote, subject to the jurisdiction if their allegiance is unknown because their whereabouts are unknown?”

Jarrett said a close look at the 1868 debates shows Congress intended the 14th Amendment to secure citizenship for formerly enslaved people, not for children of undocumented immigrants. He predicted that some justices may side with Trump.

“And if you go back and examine the debate [of] 1868, and I did look at it, there’s no evidence that Congress meant to extend citizenship to children of people here illegally,” Jarrett said. “No, their primary objective back then was to grant citizenship rights to formally enslaved people. So I think on Wednesday, you’re going to hear some justices embrace Trump’s argument. The question is, will there be enough?”

A June 2025 decision in the Trump administration’s challenge to nationwide blocks on the executive order provided insight into how some justices could view the case, even though the Court did not decide the order’s substance. Instead, in United States v. CASA, the justices concluded that district courts had likely overstepped their power by issuing “universal injunctions” to halt the president’s policies nationwide.

Shortly after the ruling, left-wing groups filed class-action suits representing children of migrants who could lose automatic citizenship under Trump’s directive. After lower courts struck down the order as unconstitutional, the administration requested a Supreme Court review in September. The justices agreed to review the case in December.  (RELATED: ‘Abuse Of The System’: Shocking Estimate Reveals How Many Illegal Aliens Take Advantage Of Birthright Citizenship)

The Trump administration contends that the 14th Amendment’s Citizenship Clause was designed to cover “newly freed slaves and their children—not the children of temporary visitors or illegal aliens.” Officials argue that, under their interpretation, illegal immigrants do not fall under the jurisdiction of the United States.

“The ‘main object’ of the Citizenship Clause was to grant citizenship to freed slaves and their children, whose allegiance to the United States had generally been established through generations of parental domicile,” the administration’s reply brief said. “By contrast, aliens who are just passing through the United States, and those who cross our borders illegally, lack ties of allegiance and do not obtain the ‘priceless and profound gift’ of citizenship for their children.”

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