Trump v. Barbara

    Issues

    Does an executive order ending “birthright citizenship” violate the US Constitution or other US law?

    Oral argument:
    April 01, 2026
    Court below:
    United States District Court for the District of New Hampshire

    This case asks whether President Donald Trump’s Executive Order denying birthright citizenship to children of undocumented immigrants is constitutional. Trump argues that history, traditions, and precedent before and after the ratification of the Fourteenth Amendment suggest that the amendment did not grant unqualified birthright citizenship and instead that citizenship depends on the legal and domicile status of the child’s parents at the time of birth. Barbara argues that there is no domicile requirement for birthright citizenship, and that the English common law and American courts have embraced the rule that birthright citizenship extends to the children of undocumented immigrants. Proponents of Trump’s argument assert that birthright citizenship creates citizens without allegiance to the United States and puts a strain on the economy. Proponents of Barbara’s argument assert that birthright citizenship is necessary to protect individuals without a formal allegiance to any nation, that immigrants have long provided patriotic service to the United States, and that birthright citizenship is essential to providing government aid to individuals that require it.

    Questions as Framed for the Court by the Parties

    Whether Executive Order No. 14,160 complies on its face with the citizenship clause of the 14th Amendment and with 8 U.S.C. § 1401(a), which codifies that clause.

    Facts

    On January 20, 2025, President Trump signed Executive Order No. 14,160 (“Citizenship Order”). The Citizenship Order denies citizenship to children born after February 19, 2025 in the United States if their father was not a citizen of the United States or lawful permanent resident, and if their mother was either unlawfully present or had temporary status in the United States at the time of their child’s birth. 

    The Citizenship Clause of the Fourteenth Amendment provides that “[a]ll 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.”  Section 1401(a) of the Immigration and Nationality Act states that “a person born in the United States, and subject to the jurisdiction thereof” “shall be nationals and citizens of the United States at birth.”

    Four groups of plaintiffs sued the Trump administration in four separate district courts, moving for preliminary injunctions to stop enforcement of the Citizenship Order. Three of the district courts issued universal preliminary injunctions enjoining enforcement against any party across the whole country, while one district court enjoined enforcement only against the plaintiff and any other person within the court’s jurisdiction. The United States Supreme Court stayed the universal preliminary injunctions, holding that they were broader than necessary to provide relief to plaintiffs with standing to sue.

    Immediately after the Supreme Court stayed the three universal preliminary injunctions, a group of children and their guardians, including the pseudonymous Barbara (collectively, “Barbara”), filed a class action suit in the United States District Court for the District of New Hampshire (“District Court”) against President Trump and several other executive branch officials. Barbara requested that the court certify the class and moved for a preliminary injunction, which would stop enforcement of the Citizenship Order. Barbara alleged that the Executive Order violated the Fourteenth Amendment and the Immigration and Nationality Act.

    The District Court certified a limited class of children to whom the Citizenship Order applies, excluding their parents from class certification. Per the District Court, a court should grant a preliminary injunction if the plaintiff is likely to succeed on the merits, likely to suffer irreparable harm without an injunction, the balance of equities is in their favor, and public interest favors an injunction. The District Court found that each of the factors favored the plaintiffs and granted the injunction preventing enforcement of the Citizenship Order during the litigation.

    Trump filed a writ of certiorari before final judgment to allow the Supreme Court to hear the case without first requiring the United States Court of Appeals for the First Circuit to hear an appeal of the District Court’s order. 

    The United States Supreme Court granted Trump’s petition for a writ of certiorari on December 5, 2025. 

    Analysis

    WHETHER THE EXECUTIVE ORDER VIOLATES THE CITIZENSHIP CLAUSE OF THE FOURTEENTH AMENDMENT

    Trump argues that the Citizenship Order does not violate the Fourteenth Amendment because the Citizenship Clause of the Fourteenth Amendment does not extend citizenship to everyone born in the United States. Instead, Trump proposes that the Citizenship Clause conditions citizenship on two requirements: being born in the United States and subject to the jurisdiction of the United States. Trump contends that the second requirement hinges on political jurisdiction, asserting that political jurisdiction requires that one owes primary allegiance to the United States and has full claim to its protection. Trump supports this reading of the Citizenship Clause by offering evidence of pre-Fourteenth Amendment history, history around the time the Fourteenth Amendment was ratified, and precedent post-ratification. Trump proposes that before the Citizenship Clause was ratified, citizenship in the United States and Britain depended on whether one owed allegiance to the sovereign. Shortly before the Citizenship Clause was ratified, Trump highlights that the Civil Rights Act of 1866 gave citizenship to everyone born within the United States and not subject to any foreign power. After the Citizenship Clause was ratified, Trump asserts that the Supreme Court interpreted the jurisdictional requirement as requiring “direct and immediate allegiance” to the United States. In 1898, the Supreme Court held in United States v. Wong Kim Ark that a child born in the United States to aliens domiciled in the United States was a citizen. Trump reads Wong Kim Ark as limiting citizenship to the children of aliens with a permanent, lawful domicile in the United States. Trump insists that the fact that Wong Kim Ark’s parents were domiciled residents was central to the Supreme Court’s analysis, noting that domicile is mentioned in the opinion twenty-two times.

    Trump argues that the children of temporarily present aliens are not subject to the political jurisdiction of the United States because temporarily present aliens and their children are not domiciled in the United States. Trump asserts that before the Citizenship Clause was ratified, whether a child became a citizen of the country in which they were born depended on whether the parents were in the country permanently or merely traveling through the country. At the time of ratification, Trump argues that the children of temporarily present aliens did not acquire citizenship by birth, citing speeches and debates by legislators and a general. After the ratification of the Citizenship Clause, Trump contends that the Supreme Court was skeptical of the citizenship of children who were not born to citizen parents, citing executive practice, state laws, and commentators.  

    Finally, Trump asserts that the children of persons not legally in the United States are not subject to the political jurisdiction of the United States because those persons do not owe sufficient allegiance to and cannot be domiciled in the United States. Trump elaborates that such persons do not owe allegiance to the United States because they defied United States law. Trump further argues that persons not legally present in the United States are legally incapable of being domiciled in the United States, referring generally to federal immigration law. Finally, Trump objects that granting citizenship to the children of people not legally present in the United Dtates would allow the parents to benefit from violating United States law.  

    In response, Barbara argues that the Citizenship Clause guarantees citizenship to everyone born in the United States.  Barbara asserts that the phrase “subject to the jurisdiction thereof” merely excludes the English common-law exceptions: children of foreign ambassadors, children born on foreign ships, and children born to enemies within the United States. Barbara relies on English common law, Fourteenth Amendment-era American history, the text and context of the Fourteenth Amendment, and the Supreme Court’s interpretation of the Citizenship Clause. In response to Trump’s historical argument, Barbara replies that at English common law, both temporarily present aliens and their children had allegiance to the King regardless of their citizenship. Barbara emphasizes that the English common law understanding of political jurisdiction was a geographic determination. Barbara contends that Trump’s interpretation of political jurisdiction transforms allegiance into a domicile requirement. Barbara responds to Trump’s ratification-era argument by explaining that American courts explicitly embraced the rule that children of foreign nationals born in the United States were citizens, even if they were born while traveling through the United States. Barbara cites Lynch v. Clarke in support, a widely cited New York case which upheld the citizenship of a child born to aliens traveling in the United States. Barbara argues that the Framers of the Fourteenth Amendment would have explicitly included a domicile requirement if they intended to impose one, instead of relying on a vague implied political jurisdiction requirement. Barbara also points out that a domicile rule was not mentioned in debates when the Citizenship Clause was being drafted. Barbara counters that the Civil Rights Act’s language cited by Trump was amended to the phrase “subject to the jurisdiction thereof” to clearly enshrine birthright citizenship without a domicile requirement.  

    Barbara rejects Trump’s reading of Wong Kim Ark by highlighting that the Court specifically foreclosed Trump’s domicile requirement. Barbara points out that, while domicile is mentioned twenty-two times, the rest of the 20,000-word opinion explicitly denies that domicile was dispositive. Barbara emphasizes that Wong Kim Ark treats domicile as not necessary, but sufficient, to show allegiance to the United States, a view which was embraced by the Wong Kim Ark dissent. Barbara also notes that, contrary to Trump’s argument, the Supreme Court has consistently applied Wong Kim Ark without a domicile requirement. Barbara argues that Trump’s reliance on commentators is misplaced because many of the cited commentators were just disagreeing with Wong Kim Ark, and their opinions are not evidence of a consensus.

    Barbara also responds that most temporarily present or not legally present in the United States are nevertheless domiciled in the United States under the legal definition of domicile: residence with intent to remain. Barbara contends that Trump’s argument that persons not legally present in the United States cannot form a domicile in the United States is not based on any law. Furthermore, Barabra notes that under Trump’s framework, allowing Congress to define domicile would allow Congress to control who is a citizen by birth. Barbara argues that this would undermine the objective of the Citizenship Clause, which was to insulate citizenship from Congressional control. Barbara asserts that Trump’s reading would also make citizenship dependent on the subjective intent of parents at the time of a child’s birth, which is inconsistent with the goals of the Framers.

    WHETHER THE EXECUTIVE ORDER VIOLATES THE IMMIGRATION AND NATIONALITY ACT

    Trump argues that the Citizenship Order does not violate Section 1401(a) of the Immigration and Nationality Act (“INA”) because even though Section 1401(a) was passed in 1952, the text carries the same meaning as the text in the Fourteenth Amendment’s Citizenship Clause. Trump asserts that courts generally interpret statutes which reference the Constitution as incorporating the same meaning as the Constitution rather than “Congress’s assumptions about its meaning.” Trump also references the history of the INA, arguing that its purpose was to revise and codify the existing law. Finally, Trump contends that one of Congress’s goals in drafting the INA was to cut down on dual nationality.

    Barbara replies that the Citizenship Order independently violates Section 1401(a) because the statute incorporated the understanding of the phrase “subject to the jurisdiction thereof” from the time the statute was enacted in 1952. Barbara contends that Congress’s understanding of the phrase in 1952 clearly did not include a domicile requirement based on Wong Kim Ark, decades of practice granting citizenship without inquiring into domicile, and the explicit rejection of a domicile requirement by the committee that drafted the INA. Barbara responds to Trump’s assertion that the INA incorporates the original meaning of the Citizenship Clause by arguing that Trump does not cite any legal authority and ignores the contrary precedent cited by Barbara. Barbara notes that Trump conflates the INA borrowing a phrase from the Citizenship Clause with the INA referencing the clause directly, in which case the original meaning would prevail. Finally, Barbara underscores that there was a clear consensus in 1952 that the Citizenship Clause and the INA did not include a domicile requirement.  

    Discussion

    ALLEGIANCE AND BELONGING

    Former national security official Joshua Steinman, in support of Trump, argues that birthright citizenship allows for people with “dual loyalty” to be granted citizenship. According to Steinman, these dual allegiances threaten national security because foreign intelligence can use birthright citizens as “ideal intelligence asset[s]” to infiltrate the United States. Steinman asserts that removing the guarantee of birthright citizenship removes an “attractive avenue” for this infiltration. Senator Ted Cruz, Representative Jim Jordan, and other members of Congress (collectively, “Cruz”), in support of Trump, argues that the “birth tourism” industry allows for individuals without any actual allegiance to the United States to vote and move within American borders. ,According to Cruz, having these privileges without any requirement of allegiance allows “nominal citizens” to undermine the government. The former United States Attorney General Edwin Meese III, in support of Trump, agrees that the allowance of a birth tourism industry undermines national sovereignty. Meese indicates that thousands of citizens are born by birth tourism each year “despite lacking any genuine connection to the country.” America’s Future and nine other nonprofit organizations (collectively, “America’s Future”), in support of Trump, asserts that the Chinese Communist Party has utilized birth tourism to develop a loophole for foreign political donations in support of left-wing causes. 

    The Global Strategic Litigation Council and fifty other immigrants’ rights organizations (collectively, “GSLC”), in support of Barbara, argues that birthright citizenship protects undocumented immigrants from statelessness. The GLSC notes that the Citizenship Order would render children whose parents’ country do not recognize them as citizens since they were born abroad stateless. As a result of the Citizenship Order, the GLSC emphasizes that at least 218,000 people in the United States will either be stateless or be at risk of becoming stateless. LatinoJustice PRLDEF and twenty-two other organizations (collectively, “LatinoJustice”), in support of Barbara, asserts that the Citizenship Order would disproportionately harm U.S. born children of Latino immigrants, who have been instrumental in the development of American society. LatinoJustice contends that the Citizenship Order was motivated by anti-immigrant rhetoric alleging that the influx of Latino immigrants brought gang violence to this country. However, LatinoJustice highlights the many patriotic contributions by Latino immigrants, including significant military participation throughout history into present day, as evidence of their allegiance to the United States. 

    SOCIAL EFFECTS

    America’s Future, in support of Trump, argues that birthright citizenship has adverse economic effects. America’s Future points out that Barbara admitted that she planned to seek SNAP, Medicaid, and other benefits for her child. Further, America’s Future estimates that immigrants received over $150 million in government aid in 2023 as evidence of the significant economic effects of birthright citizenship. Citing economic scholar Milton Friedman, America’s Future notes that it is not feasible to have social welfare programs in conjunction with open immigration. The Christian Family Coalition Florida (“CFC”) argues that multiculturalism brought on by birthright citizenship fosters a religiously intolerant and bigoted environment. The CFC asserts that this environment runs contrary to the established American value of religious liberty. 

    Local governments and their leaders from 106 jurisdictions across twenty-six states (collectively, “local governments”), in support of Barbara, assert that stripping birthright citizenship will result in far-reaching negative social impacts. According to local governments, the Citizenship Order would develop an underclass of stateless individuals whose inability to participate in public life would erode community values and cohesion. For instance, local governments highlight that stateless individuals would be excluded from “core aspects of American life,” such as voting and serving on juries. Local governments further argue that stripping birthright citizenship will increase poverty by stripping access to social programs. Additionally, local governments argue that citizenship stripping will reduce federal funding for local youth services. The Lawyers’ Committee for Civil Rights Under Law and five other civil rights organizations, in support of Barbara, highlight that stripping birthright citizenship would disparately impact communities of color, which counters the intent of the Fourteenth Amendment. 

    Conclusion

    Authors

    Written by:    Matt Charles and Sam Schoenberg 

    Edited by:      Domnick Q. Raimondo

    Additional Resources