A promise under strain

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NICK EICHER, HOST: It’s The World and Everything in It for this 6th day of April, 2026. We’re so glad you’ve joined us today. 

Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time now for Legal Docket.

What does it mean to be born a citizen of the United States?

That was the question at the Supreme Court last week—the justices taking up an issue that’s been bubbling up for more than a hundred years.

At stake: whether the Constitution guarantees citizenship to nearly everyone born on U.S. soil—or whether the government has the authority to draw tighter limits.

EICHER: That question lands at a moment of high immigration pressure. Federal data show record levels of migrant encounters at the southern border under the Biden administration—peaking at nearly two-and-a-half million in the year 2023. Immigration courts now face a backlog of millions of cases, plus asylum cases, with many claims taking years to resolve.

At the same time, the business of birth tourism figured into the argument. From Miami luxury suites for Russian elites to 500-plus companies operating in China, federal prosecutors say the scale is staggering. Testimony in Congress last month estimates three-quarters of a million and maybe twice that number of citizenships may be linked to those operations—with foreign adversaries gaming the system to build a block of dual-citizen voters who live, work, and remain loyal to interests overseas.

All of that raises the stakes: whether a Civil War–era constitutional rule still operates the same way in a very different world.

REICHARD: That question came to a head on the first day of President Trump’s second term.

He signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” It says the Fourteenth Amendment does not extend citizenship to everyone born in the United States. Citizenship belongs only to those “subject to the jurisdiction thereof.”

That order pertains to children born to mothers in the country unlawfully—or here lawfully but only temporarily, such as on student, work, or tourist visas. Those children under the order would not automatically receive U.S. citizenship if the father is not a citizen or lawful permanent resident.

EICHER: The issue now is the latest attempt to force clarity on the meaning and reach of the 14th Amendment.

To use the Latin lawyers so love: does America follow jus soli, the right of the soil? Or does it follow jus sanguinis, citizenship based on the nationality of your mom and dad?

This debate has not always been as partisan as it is now. Back in 1993, with President Bill Clinton in his first term, Democratic Senator Harry Reid said this on the Senate floor:

REID: No sane country would do that, right? …If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee a full access to all public and social services this society provides…

REICHARD: He later reversed that position as majority leader.

But the underlying question never went away.

Now it’s front and center at the Supreme Court, which must interpret one line from the Fourteenth Amendment: “All persons born…in the United States, and subject to the jurisdiction thereof, are citizens...”

It’s that second part, “subject to the jurisdiction thereof” that is in contention now.

Arguing for the government, Solicitor General John Sauer defended that reading of the Constitution:

SAUER: The Citizenship Clause was adopted just after the Civil War to grant citizenship to the newly freed slaves and their children, whose allegiance to the United States had been established by generations of domicile here. It did not grant citizenship to the children of temporary visitors or illegal aliens, who have no such allegiance.

He argued that automatic birthright citizenship creates practical consequences as well:

SAUER: Unrestricted birthright citizenship contradicts the practice of the overwhelming majority of modern nations. It demeans the priceless and profound gift of American citizenship. It operates as a powerful pull factor for illegal immigration and rewards illegal aliens who not only violate the immigration laws but also jump in front of those who follow the rules.

EICHER: Now for background: the Fourteenth Amendment was adopted after the Supreme Court’s infamous Dred Scott decision, which denied citizenship to Black Americans. The constitutional amendment guaranteed citizenship to former slaves and their children.

Months earlier, Congress had passed the Civil Rights Act of 1866. That law said anyone born in the United States—and “not subject to any foreign power”—was a citizen.

REICHARD: And that’s where the dispute begins: Whether those two phrases—“not subject to any foreign power” and “subject to the jurisdiction thereof”—mean the same thing.

More than 150 years later, the Court still hasn’t given a definitive answer

EICHER: The Trump administration takes the position that they do mean the same thing. That both phrases exclude children of parents without permanent legal status in the United States.

At oral argument, the justices sought to find out what “jurisdiction” really means.

Justice Clarence Thomas asked whether the clause assumes something more permanent—like a home or domicile:

THOMAS: …the Citizenship Clause refers not just to national citizenship but also to state citizenship. Are we to have two different definitions for those?

REICHARD: Sauer responded the clause assumes people are domiciled in this country and not merely passing through.

But Justice Sonia Sotomayor pointed back to the historical debates: (Note, for the sake of clarity, I have edited some of the exchanges.)

SOTOMAYOR: So what do you do? During the debates of the 1866 Civil Rights Act and of the Fourteenth Amendment…and the fact that the proponents of both acts said everyone who's born in the U.S. will be citizens?

REICHARD: Justice Elena Kagan wondered whether the government’s argument rests on narrow, unusual examples:

KAGAN: Most of your brief is about not about illegal aliens. Most of your brief is about people who are just temporarily in the country, where there was quite clearly an experience of, an understanding of, that they were going to be temporary inhabitants. And your whole theory of the case is built on that group.

EICHER: Chief Justice John Roberts echoed that concern:

ROBERTS: You obviously put a lot of weight on "subject to the jurisdiction thereof," but the examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens are --are here in the country.

I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples….

Justice Samuel Alito took a different approach—asking how old constitutional language applies to new realities.

ALITO: And what we're dealing with here is something that was basically unknown at the time when the Fourteenth Amendment was adopted, which is illegal immigration. So how do we deal with that situation when we have a general rule?

REICHARD: Justice Alito compared it to applying old laws to new technology. Merely because a thing did not exist at the time the law was written does not mean the law cannot apply in the future.

And that raised an even deeper question running through the case: Is the Constitution fixed? Or does its meaning extend to circumstances the framers could never foresee?

Justice Brett Kavanaugh asked directly:

KAVANAUGH: Are the exceptions --you've used the word "closed" many times --frozen, or do we reason by analogy to the exceptions that existed based on things that were unforeseen at the time?...Now I'm thinking in particular about the non-citizens unlawfully in the country, not the temporary part but the non-citizens unlawfully in the country.

EICHER: On the other side is a nationwide class of challengers.

The lead plaintiff is known only as “Barbara”, a woman from Honduras living in New Hampshire and seeking asylum.

She argues her U.S.-born child is a citizen—and that status matters for access to benefits like SNAP, Medicaid, and Social Security.

Their lawyer, Cecilia Wang of the ACLU:

WANG: Ask any American what our citizenship rule is and they'll tell you, everyone born here is a citizen alike. That rule was enshrined in the Fourteenth Amendment to put it out of the reach of any government official to destroy... 30 years after ratification, this court held that the 14th amendment embodies the English common law rule. Virtually everyone born on US soil is subject to its jurisdiction and is a citizen. It excludes only those cloaked with the fiction of extraterritoriality, because they are subject to another sovereign’s jurisdiction even when they’re in the United States. A closed set of exceptions to an otherwise universal rule.

REICHARD: She argued the Fourteenth Amendment is a broad rule with very narrow exceptions, and she leaned on a 1898 Supreme Court decision in U.S. v Wong Kim Ark. That held that a child born on U.S. soil to non-citizen parents, albeit parents here legally, was still a citizen. 

Case settled, she argued.

EICHER: But Justice Alito wasn’t so sure about applying those facts to this case. He offered a hypothetical:

ALITO: "Not subject to any foreign power” is pretty straightforward … A boy is born here to an Iranian father who has entered the country illegally. That boy is automatically an Iranian national at birth, and he has a duty to provide military service to the Iranian government. Is he not subject to any foreign power?

WANG: Not within the meaning of the 1866 Act, Justice Alito ... What the Framers meant by the phrase "not subject to any foreign power" was referring to the ambassador exception...

ALITO: Well, ordinary public --ordinary public meaning of that would certainly encompass that boy, would it not?

Justice Amy Coney Barrett raised a very practical concern, reflecting her years as a professor of civil procedure:

BARRETT: What if you don't know who the parents are?...How would it work? How would you adjudicate these cases? You're not going to know at the time of birth for some people whether they have the intent to stay or not…

REICHARD: Chief Justice Roberts brought up birth tourism. Sauer was ready for it:

SAUER: Here's a fact about it that I think is striking. Media reported as early as 2015 that based on Chinese media reports, there are 500 --500 birth tourism companies in the People's Republic of China whose business is to bring people here to give birth and return to that nation.

[LATER] ROBERTS: Well, it certainly wasn't a problem in the 19th century.

SAUER: No, but, of course, we're --we're in a new world now, as Justice Alito pointed out to, where 8 billion people are one plane ride away from having a --a child who's a U.S. citizen.

ROBERTS: Well, it's a new world, it's the same Constitution. 

One thing to note: Nobody would lose birthright citizenship who’s already gained it, but future people won’t get it under this principle. The executive order only applies to births after February 20, 2025. And even that is blocked by lower courts right now.

Maybe the debate will push Congress to do something about people taking advantage of a principle designed for another context.

ROBERTS: Thank you, counsel, General; the case is submitted.

And that’s this week’s Legal Docket!

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