Supreme Court Upholds Birthright Citizenship in Trump v. Barbara
By Owen Thomas, Immigration Attorney
This summer, the Supreme Court ruled in Trump v. Barbara that children born on U.S. soil to temporary visitors and undocumented immigrants are U.S. citizens.
The road to that decision began when President Trump issued a 2025 executive order directing the Department of State to deny passports to certain U.S.-born children. Affected families challenged the order in multiple federal courts, and the government consistently lost. Although the Supreme Court's earlier decision in Trump v. CASA eliminated nationwide injunctions, a development that many immigration lawyers view as troubling, that ruling ultimately did not foreshadow an anti-immigrant outcome in Barbara.
The Citizenship Clause of the Fourteenth Amendment provides citizenship to "all persons born" "in the United States." Because that language is relatively straightforward, the main dispute in Barbara centered on the meaning of the phrase "subject to the jurisdiction" of the United States.
The majority adopted a jurisdictional understanding that can best be described as the government's power over a person. Relying on United States v. Wong Kim Ark, the Court reiterated the historically recognized exceptions: foreign diplomats and their families, American Indians prior to their statutory grant of citizenship and full integration into the United States, and invading enemy forces. Because the United States lacked complete legal authority over those groups, they were considered outside its jurisdiction for purposes of birthright citizenship.
Chief Justice Roberts wrote the majority opinion, joined by the Court's liberal justices and Justice Barrett. Justice Jackson authored a vigorous concurrence. Notably, both opinions employed textualist and originalist reasoning rather than broader policy arguments.
Justice Alito's dissent would have taken a far narrower view. He argued that the Fourteenth Amendment should be interpreted similarly to the Civil Rights Act of 1866, which referred to persons "not subject to any foreign power." Under that approach, citizenship would effectively be limited to those who owed allegiance exclusively to the United States.
That interpretation raises significant practical and historical difficulties. Many Americans possess dual citizenship and are subject to legal obligations in more than one country. For example, some dual nationals may have responsibilities both in the United States and abroad. More importantly, the dissent's approach creates tension with the historical purpose of the Fourteenth Amendment. Many formerly enslaved people retained theoretical or actual connections to African kingdoms, colonies, or resettlement efforts that eventually contributed to the creation of countries such as Liberia and Sierra Leone. An interpretation that excludes large numbers of the very people the Amendment was designed to protect sits uneasily with an originalist analysis.
Justice Alito also devoted substantial portions of his dissent to concerns about unauthorized immigration, concerns that sounded more like policy objections than constitutional analysis.
The separate dissents by Justices Thomas and Gorsuch were less sweeping. They would have defined jurisdiction in terms of domicile, meaning a stable and established residence within the United States. Under that framework, many long-term undocumented immigrants would still pass citizenship on to their U.S.-born children, while temporary visitors would not.
Justice Kavanaugh took yet another approach. Although he suggested Congress could potentially adopt the dissenters' interpretation, he concluded that Congress had already incorporated the principles of Wong Kim Ark into federal law through later legislation.
The majority's rule is not only constitutionally sound but also far easier to administer. Citizenship should not depend on complex questions such as whether someone unknowingly holds dual nationality or whether a parent has established a sufficiently permanent domicile. Those standards would generate confusion, uncertainty, and litigation.
That practical reality helps explain why President Trump's follow-up executive order was quickly blocked in a new CASA lawsuit. The order identifies several categories of people whose children would allegedly be excluded from birthright citizenship. Some of those categories align with Barbara, while others do not.
The order includes foreign diplomats, but it adopts an expansive definition that could sweep in individuals who are not actually immune from U.S. law, such as support staff employed by diplomatic missions. It also covers invading enemy forces, a historically recognized exception, but expands further to include individuals designated under the Alien Enemies Act, such as alleged members of Tren de Aragua. Many of those individuals unquestionably remain subject to U.S. criminal prosecution, making their inclusion difficult to reconcile with the Court's jurisdictional analysis.
The order also targets so-called birth tourists. Unlike diplomats or invading armies, however, there is little in Barbara or the historical understanding of jurisdiction that supports excluding their children from citizenship. The category appears driven more by policy concerns than constitutional doctrine.
The U.S. District Court for the District of Maryland was unconvinced and blocked enforcement of the order. For now, Barbara remains the governing interpretation of the Citizenship Clause: with only a few historically recognized exceptions, children born in the United States are U.S. citizens.