Justices weigh theories of citizenship in Trump v. Barbara

WASHINGTON—Protesters gathered outside the U.S. Supreme Court building on Wednesday, with some holding up a sprawling banner that said “Hands off Birthright Citizenship!” Others waved signs saying, “Trump Must Go Now!” “Birthright Citizenship is a Constitutional Right,” and “The 14th Amendment Speaks for Itself.” One woman marched around with a megaphone, chanting criticisms of President Donald Trump’s administration.

Another protester, Holly Hobbs, sported a sign saying “Jesus Christ was a brown-skinned immigrant.”

“Immigrants, they are people, and they need to have rights,” Hobbs said. “And they had rights in this country, but they’re taken away.”

The justices heard oral arguments Wednesday in the case Trump v. Barbara, which examines whether the children of illegal immigrants in the United States have a right to become U.S. citizens at birth. President Donald Trump signed an executive order on his first day in office last year that instructed all government agencies to withhold citizenship documents from children born to individuals who weren’t lawful permanent residents or U.S. citizens. In response to lower court rulings blocking the executive order, the Trump administration last September asked the Supreme Court to weigh in.

The case centers on the meaning of the 14th Amendment, which states in part, “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.”

The Trump administration’s position is that under a more restrictive interpretation of the phrase “subject to the jurisdiction thereof,” automatic citizenship at birth doesn’t extend to illegal immigrants. But during Wednesday’s oral arguments—part of which President Trump attended, in a first for a sitting president—most of the U.S. Supreme Court justices seemed critical of the administration’s stance.

“The text of the clause, I think, does not support you. I think you’re sort of looking for some more technical, esoteric meaning,” Justice Elena Kagan told U.S. Solicitor General D. John Sauer, who defended the government’s position during arguments that featured highbrow questions of constitutional law. “You’re using some pretty obscure sources to get to this concept.”

Kagan later described Sauer and the Trump administration’s view as “revisionist,” saying that it would require the United States to essentially change its view about how birthright citizenship has worked for more than a century.

Justice Amy Coney Barrett challenged Sauer’s reading of the 14th Amendment as “puzzling.” Under English common law, someone could become a citizen by being born abroad to English parents or being born on English soil to any parents. Barrett noted that the authors of the 14th Amendment did not make citizenship ride solely on who someone’s parents were—as they might have done if they wanted to exclude the children of foreign nationals born on U.S. soil.

Justice Neil Gorsuch also challenged Sauer’s emphasis on the parents’ citizenship. Nowhere in the debates surrounding the ratification of the 14th Amendment were parents and their status discussed—rather, the entire discussion focuses on the child, he argued.

Justice Samuel Alito seemed to express some measure of openness to the government’s argument, noting that the situation in the 19th century was much different than it is now.

“What we’re dealing with here is something that was basically unknown at the time when the 14th Amendment was adopted, which is illegal immigration,” he said.

Arguing in court for the traditional view of the 14th Amendment, ACLU National Legal Director Cecillia Wang asserted that the amendment does not have an unclear purpose or an ambiguous legal history. All Americans understood that citizenship was a right of birth for anyone born on U.S. soil. And the reason the 14th Amendment came to exist at all was because the Congress wanted to put it beyond the power of any branch of government to reinterpret the rules of U.S. citizenship at a later date.

While the justices lobbed challenge after challenge at Sauer, their questions for Wang probed more gently at softer incongruities in her positions.

Legal experts across the country have watched the case with interest. A ruling in favor of the Trump administration would mark a major shift in citizenship and immigration law.

“Birthright citizenship applies to nearly everyone born in the United States, which has been the consensus view for well over a century,” said Amanda Frost, an immigration and citizenship law professor at the University of Virginia. “That’s supported by the text and the legislative history at the time, the Supreme Court precedent, and long-standing executive branch practice up till Jan. 20, 2025. … The only reason there’s debate is the president of the United States issued an executive order trying to change it.”

The 14th Amendment, ratified in 1868, came into existence to grant citizenship to former slaves. Samuel Erman, a law professor at the University of Michigan, said that the amendment presents a rare historical analysis situation because it’s clear what people understood it to mean when it was originally passed. That’s not always true for some legal texts that came into being years or centuries ago and don’t have a clear historical record.

“This time, though, it’s pretty clear what the citizenship clause was designed to mean,” Erman said. “It was designed to mean that if you were born within U.S. borders you got to be a U.S. citizen.”

Erman acknowledged there were exceptions to that rule. The children of foreign diplomats and children born on U.S. territory weren’t allowed to become U.S. citizens, for example.

Other advocates argue that Trump’s interpretation of the 14th Amendment is actually closer to what its authors intended.

“The argument is that individuals who are here illegally, people who are here temporarily, are not subject to the jurisdiction of the United States, and therefore their children are not citizens of the United States,” said Andrew Arthur, a former prosecutor and immigration judge who now works as a resident fellow of law and policy at the Center for Immigration Studies.

Arthur said that the Civil Rights Act of 1866, which was contemporaneous with the 14th Amendment, reserved birthright citizenship only for people born to individuals who weren’t citizens of another country at the time.

“There is no indication that Congress meant anything different between the two,” Arthur explained, referring to the texts of the 14th Amendment and the Civil Rights Act.

The Trump administration’s view has gained some popular support. A protester outside the Supreme Court on Wednesday, Frank Lukacs, insisted illegal immigrants aren’t “subject to the jurisdiction” of the United States because they have no allegiance to the country and violated immigration laws in how they entered. Giving citizenship to the children of illegal immigrants, he argued, is unfair to legal immigrants.

“If you come in from India, China, the Philippines, or Mexico, or a lot of the other Latin American countries, you have to wait 20 years in your own line before you can come out legally. Once you come in, then you have to wait another 10 years before you can get citizenship,” Lukacs said. “Illegal immigrants, they come in, birthright citizenship, done. … That’s not a constitutional issue. That’s a practical, procedural issue.”

Amanda Frost from UVA counters that, when Congress crafted the 14th Amendment, lawmakers interpreted allegiance differently from birthright citizenship’s modern critics. Congress excluded the children of foreign diplomats—who essentially exist on U.S. soil while insulated from its sovereignty—and Native Americans, who were members of states that existed on U.S. soil but under the rules of a different sovereignty.

“The very fact that we talk about those as exceptions shows us the Reconstruction Congress didn’t mean to exclude everyone who has some sort of foreign parent,” Frost said. “The term allegiance—I think, we tend to get it confused with loyalty and bound up with the ways we define it today. But what they just meant was, ‘You’re born in the United States, and you’re not part of another sovereign that is insulated and excluded from U.S. law.’”

But Randy Barnett, a law professor at Georgetown University, explained that illegal immigrant parents lack proper status in the United States—a situation that also applied to the groups that the 14th Amendment withheld birthright citizenship from, even if they were born on American soil. Those groups included members of Native American tribes, the children of foreign diplomats, and children born to members of any foreign occupying army that took control of a U.S. territory.

“The status of the children in these three categories depended on the status of the parents,” Barnett said. “So the question to be decided is, what is the concept that explains these three recognized categories? And then does that concept extend to the children of those who are unlawfully present in the United States or temporarily present in the United States?”

While he noted that the justices on Wednesday were more opposed to the Trump administration’s arguments than they were to the ACLU’s arguments, he said it still wasn’t certain how they would decide the case.

“I would just not make any predictions,” Barnett said. “They’ll tell us what the outcome is when they tell us.”

—This story has been corrected to reflect that the 14th Amendment was ratified in 1868