The Supreme Court recently held oral arguments in Trump v. Barbara, a case pitting President Trump’s Executive Order barring persons born in the United States from receiving citizenship if their parents lack legal status against the Fourteenth Amendment’s “birthright citizenship” clause. When this Executive Order first came before the Supreme Court last year on a procedural question, the Court curtailed the reach of universal injunctions issued by federal courts. See Trump v. CASA, Inc., 606 U.S. 831 (2025). This time around, Barbara squarely presents the question of the constitutionality of the Executive Order. And, in an unprecedented move, President Trump attended the oral argument to watch Solicitor General John Sauer defend his Executive Order.
The Fourteenth Amendment begins with the sentence at issue in this case: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…” Although courts—including the Supreme Court itself (in 1898)—have interpreted the Fourteenth Amendment to extend citizenship to all individuals born on U.S. soil, with some limited exceptions, the Executive Order challenged that understanding.
At oral argument, the government argued that the phrase “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else.” The government, therefore, interpreted the Fourteenth Amendment as intended only to overrule the Court’s infamous Dred Scott decision and thereby provide citizenship to newly-freed slaves after the Civil War—not to extend citizenship to children of other nations’ citizens (i.e., unauthorized immigrants and temporary visitors).
Justice Alito questioned the broad application of birthright citizenship, arguing that modern illegal immigration was “basically unknown” when the Fourteenth Amendment was ratified in 1868. He suggested the Court should apply original principles to new circumstances, questioning whether automatic citizenship turns the Constitution into a “suicide pact” by allowing people to bypass national sovereignty. He invoked a Justice Scalia analogy regarding how old laws apply to new situations, like theft statutes applying to technology that didn’t exist at the time. Justice Thomas also seemed skeptical, favoring a view that requires “domicile” or legal allegiance to the U.S. Both Justices did not seem receptive to the argument that birthright citizenship applies universally to children born to non-domiciliary or undocumented parents.
But several of the Justices pushed back on the government’s reasoning. Justice Sotomayor pointed to congressional debates about the Fourteenth Amendment in which lawmakers explicitly considered the Amendment’s application to immigrants lacking legal status. Justice Gorsuch challenged the government’s contention that the domicile of the parents mattered based on historical evidence that, without strict immigration laws in the 1860s, it was much easier to establish a domicile than it is today. And Justice Kavanaugh seemed dismissive of the government’s attempt to point to the lack of birthright citizenship in other countries as a “policy matter.”
In a particularly poignant moment, Chief Justice Roberts asked the Solicitor General how the known exceptions to birthright citizenship (children of diplomats and invading armies) could be extended to encompass immigrants lacking legal status. The Solicitor General responded that, because we live in a new world, the Court should expand its understanding of the Fourteenth Amendment to address modern problems. The Chief Justice replied, “Well, it’s a new world. It’s the same Constitution.”
Stay tuned for Dykema’s coverage of the forthcoming opinion.
For more information, please contact Chantel Febus, James Azadian, Andy VanEgmond, or Sadie Betting.