WASHINGTON (CN) — In a private session Friday, the Supreme Court will consider putting President Donald Trump’s bid to limit birthright citizenship back on the docket in 2026.

Last term, the policy was postscript to the conservative majority’s blockbuster ruling on universal injunctions — court orders that blocked limits on birthright citizenship nationwide. But if the justices give in to Trump’s updated request, they’ll be forced to confront the administration’s battle to recast citizenship and 150 years of history standing behind the core tenets of what it means to be an American.

“It just shows how comfortable he is challenging consensus, whether or not he’s right or wrong,” Smita Ghosh, senior appellate counsel at the Constitutional Accountability Center, said.

Ghosh said that the administration’s arguments before the Supreme Court mirror his broader political goals.

“Some of the things that the government has cited in the petition for certiorari are arguments or sources that were in dissents in Supreme Court cases,” Ghosh said. “The court has already rejected these types of arguments, but that doesn’t really matter to him. Maybe it’s part of the desire to portray his administration as one to whom the established rules don’t apply.”

The road to round two

After the justices’ 6-3 ruling in late June, a lower court kept Trump’s order from being enforced by certifying children who would be subjected to the policy into a class — a legal process that assesses the commonality between a group of people within a class action. Another court blocked the order within the states that have challenged the policy as unlawful.

An appeals court then ruled that Trump’s executive order unconstitutionally stripped the children of some individuals without legal status of their citizenship rights. The court noted that for over 150 years, the 14th Amendment has guaranteed citizenship to individuals born in the United States with very few exceptions.

Trump asked the justices to let him disrupt that long accepted consensus based on his version of American history.

“The government is trying to argue for a revisionist account of what the history of the 14th Amendment is,” Sam Erman, a law professor at the University of Michigan Law School, said.

Redefining the meaning of American citizenship

Limiting birthright citizenship was one of Trump’s first actions upon retaking the White House in January. In a day-one executive order, Trump declared that some children of immigrants would be excluded from the “priceless and profound gift” of United States citizenship.

In the ensuing months, Trump has sought to cement his version of American citizenship by not only cracking down on illegal immigration but also uplifting a narrative to support his claims. “Truth and sanity” needed to be restored to American history, Trump declared in an executive order in March, attacking efforts to examine the history of race in society as “casting founding principles and historical milestones in a negative light.”

The administration ordered attempts to diversify society and culture to remedy past discrimination wiped from federal governance; uplifted claims of a “white genocide” in South Africa to welcome Afrikaner refuges while dismissing protected status for asylum-seekers from Venezuela, Haiti, Honduras, Nicaragua and Syria; and deployed a messaging campaign that has been tied to white nationalism to recruit new employees to arrest immigrants.

Vice President JD Vance articulated the administration’s focus on redefining the meaning of American citizenship during a speech in July.

“American citizenship must mean belonging to a nation that guards the sovereignty of its people, especially from a modern world that’s hell-bent on dissolving borders and differences in national character,” Vance said.

Vance said the common beliefs and ideals — such as the Declaration of Independence — couldn’t alone define American citizenship. Instead, Vance rooted citizenship in shared heritage.

“Citizenship, true citizenship, is not just about rights,” Vance said. “In a world of globalized commerce and communication, it also is about obligations, including the obligations that we have to our fellow countrymen. It’s about recognizing that your fellow citizens are not interchangeable cogs in the global economy.”

Under Trump’s executive order, the children of individuals who do not have legal status or who possess temporary legal status cannot be recognized as U.S. citizens. Trump claimed that immigrants without legal status and foreigners participating in “birth tourism” had degraded the meaning and value of American citizenship.

“The citizenship clause of the 14th Amendment was adopted to grant citizenship to freed slaves and their children, not to the children of illegal aliens, birth tourists and temporary visitors,” U.S. Solicitor General John Sauer wrote.

Connecting the past to present

Under Chief Justice John Roberts, the Supreme Court has favored originalism, requiring litigants to root their arguments in the history and tradition of the country’s founding.

“The reason history matters so much in our politics and in our constitutional law is that the past serves a validating or legitimizing function,” Erman said. “The difficulty, of course, is that what people imagine the past to be and what actually happened are often not the same thing, and so the past serves very different functions in the study of history and in law and politics.”

Kate Masur, a professor of history at Northwestern University and a member of the Brennan Center’s Historians Council on the Constitution, said different aspects of American history can be emphasized to suit a certain political view. Masur, who specializes in 19th century U.S. history, said narratives around birthright citizenship are often shaped by personal attachments.

“Some people are saying right now things like, ‘the real Americans are the people whose families have been in this country for generations, or ‘my ancestors fought in the Civil War,’” Masur said, while noting that others might cite a family history of immigration to support a more pluralistic, melting pot version of history.

These narratives, whether told by politicians, advocates or individuals, are different from the accounts of the historical record produced by historians, Masur said.

“When we do history, we have standards about how we use evidence,” Masur said. “Historians don’t cherry-pick quotes that fit an argument but that doesn’t actually mean the thing that you’re saying it’s meaning or that’s taken out of context. We professional historians do not use evidence that way.”

The federal government described the 14th Amendment’s citizenship clause as a solution to a singular problem: Dred Scott v. Sandford. The infamous 1857 Supreme Court ruling held that formerly enslaved African-Americans and their descendants were not citizens.

According to Trump, that is historical evidence that the framers never intended to give citizenship to the children of immigrants in the country illegally or on a temporary basis.

“The ‘one pervading purpose’ of the amendment was ‘the freedom of the slave race, [and] the security and firm establishment of that freedom,’” Sauer wrote.

Masur said the administration’s assessment was “incomplete, if not inaccurate.” She noted that during the Antebellum era, the framers of the 14th Amendment were influenced by free Black activists who had long called for a universal, common-law understanding of citizenship.

“Over the course of the first decades of the 19th century, free Black people came to understand that many white Americans did not believe that they were citizens of the United States, although they were born in the United States,” Masur said. “This goes back to the reality that there was an English common law tradition of birthright citizenship that was not explicitly written into the United States Constitution.”

But the Constitution alluded to this idea by requiring that the president be a natural-born citizen, Masur said.

In an amicus brief submitted in the lower courts, Masur and Martha S. Jones, a history professor at Johns Hopkins University, described the Colonization Movement that aimed to force Black Americans to leave the country. Some states enacted laws requiring that Black Americans provide proof of their freedom and carry work permits. Black sailors were jailed or quarantined when they arrived in the ports of southern states, even if they were citizens in their home states.

“Those experiences are characteristic of a country in which birthright citizenship is not codified because even people who live in that country, their status and their ability to work and their ability to travel is not certain,” Masur said. “That’s one of the things that we tried to show in our brief, and I would say there are some pretty big resonances with what we see today, with attempts to undermine both birthright citizenship itself and the rights of noncitizens who may be in this country illegally or may be undocumented.”

Masur and Jones’ brief was one of many amicus briefs from historians representing a broader understanding of the history leading up to the enactment of the 14th Amendment.

Going against the grain

Republican lawmakers and states claim the lower courts relied too heavily on prejudgments instead of sound legal analysis.

“Plaintiffs would have us all believe that this is an easy case,” Tennessee, Iowa and 22 other states wrote in a brief. “Its briefing below calls the government’s position ‘fringe,’ ‘flatly contrary to the 14th Amendment,’ and ‘plainly unconstitutional.’”

The states chastised the plaintiffs for suggesting that Trump wanted to impose a modern version of Dred Scott, claiming that “puffery cannot cure the glaring deficiencies in [their] merits arguments.”

“Examining the relevant text, history, and precedent, the plaintiffs’ mere-presence position is anything but a foregone conclusion,” the states wrote.

They argued lawmakers intentionally limited citizenship to those not subject to any foreign power to exclude the children of temporary residents.

“That choice was part and parcel of the Reconstruction Congress’ overarching goal ‘to withhold birthright citizenship from those who did not owe a complete, permanent allegiance to the United States and who were not part of the ‘American people,’” the states wrote. “Historical evidence reflects that the metric for measuring the requisite connection to U.S. jurisdiction was domicile or lawful permanent residence.”

John Eastman, a former clerk for Justice Clarence Thomas and the architect behind Trump’s 2020 election challenge, has been a longtime advocate for the legal arguments that now shape Trump’s case before the court.

“The 14th Amendment codified and constitutionalized the language of the 1866 Civil Rights Act, which expressly conferred automatic citizenship only on children born to parents who were not subject to any foreign power,” Eastman wrote in a brief for the Claremont Institute, where he serves as a founding director.

Ilan Wurman, a professor at the University of Minnesota, has also been a prominent voice supporting arguments in favor of Trump’s order. Wurman cited Eastman’s work in an article that claimed to uncover new evidence about the contested citizenship of the children of temporary visitors during the Civil War.

Originalism has been sharply criticized for its malleability. Legal scholars say that the lopsided history on birthright citizenship would be a test for the Supreme Court’s commitment to its preferred legal philosophy.

“If the administration won in this case, it would give the lie to the notion that history is driving the decision making,” Erman said.

The justices will consider Trump’s petition at their Friday conference — a private meeting that even their clerks are not allowed to attend. Trump will need four justices to vote in his favor for the court to add the appeal to its docket. If the justices do decide to hear the case, arguments will likely take place early next year.