The Supreme Court ruled yesterday that President Trump’s executive order purporting to limit birthright citizenship violated the Citizenship Clause of the Fourteenth Amendment.
The ruling leaves in place the long- and well-established rule that a person born in the United States is a citizen of the United States, with only limited exceptions–not including those who are unlawfully or temporarily present.
The case, Trump v. Barbara, tested President Trump’s January 20, 2025, executive order, “Protecting the Meaning and Value of American Citizenship.” The EO said that children of persons who are unlawfully present or temporarily present in the United States do not qualify for birthright citizenship.
In particular, the EO pointed to the text of the Citizenship Clause–“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”–and said that persons who are unlawfully or temporarily present were not “subject to the jurisdiction” of the United States and therefore did not enjoy birthright citizenship. The theory turned on allegiance, which, in turn, turned on domicile: A person is “subject to the jurisdiction” if they owe allegiance; they owe allegiance if they are domiciled in the country. By the President’s reckoning, those who are unlawfully or temporarily present can’t be domiciled here, therefore they can’t owe allegiance to the United States, and therefore they are not “subject to the jurisdiction” of the United States.
Plaintiffs sued, arguing that the EO violated the Citizenship Clause and federal law that mirrors the Citizenship Clause. (This wasn’t the Court’s first crack at the case. Plaintiffs originally prevailed and won universal, or nationwide, injunctions against the EO early last year. In an emergency-docket ruling last year, the Court held that district courts lacked authority to issue universal injunctions. Plaintiffs then refiled and again prevailed, but with different relief, leading to yesterday’s ruling on the merits.)
Six Justices agreed that the EO was unlawful. Five Justices held that it violated the Citizenship Clause, and one Justice (Justice Kavanaugh) held that it violated federal law (but not the Citizenship Clause). Three Justices dissented.
This means that five Justice on the Court held that the Citizenship Clause provides birthright citizenship to children born in the United States to parents who are unlawfully present or temporarily present. (Four Justices disagreed.) Because a majority issued its ruling under the Citizenship Clause (and not just federal law), neither the President nor Congress can act to prohibit citizenship to children born of such parents.
Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. He traced the history of birthright citizenship from English common law and concluded that “subject to the jurisdiction” only meant that a person is present in the United States (“referring to the power of the United States to govern those within its territory”), with narrow exceptions for children of foreign ministers and members of certain nineteenth-century Native American tribes (or those who raised “intersovereign concerns”). He wrote that children born of parents who are unlawfully or temporarily present in the United States do not fall within an “intersovereign” exception, and therefore they are citizens.
Justice Jackson concurred, joined in part by Justice Sotomayor. She filled in with additional history and countered some of the points in Justice Thomas’s dissent.
Justice Kavanaugh concurred in part and dissented in part. He argued that the EO violated federal law, but not the Constitution. (“I respectfully disagree with the Court’s constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment.”) Although the statue and Citizenship Clause contain the same language, he contended that the Citizenship Clause, as “appl[ied] to new circumstances[,] *** support[s] additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.” And despite his reading of the current statute, he also argued that “Congress could–consistent with the Fourteenth Amendment–amend [the law] or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”
Justice Thomas wrote the principal dissent, joined by Justice Gorsuch. He traced his own history and argued that the Citizenship Clause was designed to provide citizenship for “Blacks . . . because they were Americans,” and that birthright citizenship doesn’t extend to children born to parents who are temporarily or unlawfully present.
Justice Alito separately dissented with his own textual and historical analysis.
