Supreme Court to finally hear merits arguments on birthright citizenship
Nearly 15 months after President Donald Trump issued an executive order attempting to redefine birthright citizenship, the Supreme Court will consider the constitutionality of the administration’s action.
Since then, the birthright citizenship controversy has been working its way through the legal system in several forms. Now on April 1, 2026, the Supreme Court will hear arguments in Trump v. Barbara, which will likely settle the constitutionality of President Trump’s executive order.
Traditionally, the 14th Amendment’s Citizenship Clause has been interpreted to bestow automatic citizenship on a child born in the territory of the United States regardless of their nationality, with limited exceptions. The clause reads, “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 clause was also a rejection of the Supreme Court’s Dred Scott v. Sandford decision from 1857, which held that African Americans could not become American citizens and had “no rights which the white man was bound to respect.”
The Supreme Court’s landmark case on birthright citizenship is United States v. Wong Kim Ark (1898). There, a divided Supreme Court held that Wong Kim Ark, who was born in San Francisco to parents who were both Chinese citizens, automatically became a United States citizen at birth.
The Trump administration is claiming another landmark Supreme Court decision, Elk v. Wilkins (1884), supports the argument that birthright citizenship should not be granted to children born to aliens illegally in the United States and to aliens on a temporary visit to the country.
The executive order’s road to the Supreme Court
On Jan. 20, 2025, President Donald Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship. The order claimed the Citizenship Clause did not grant citizenship in two situations where a child was not, in the administration’s view, under the “jurisdiction of the United States” as stated in the 14th Amendment.
One situation was when a child’s mother was “unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” The other instance was when “that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary … and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
On Jan. 21, 2025, Washington state, along with three other states, contested the executive order in court, arguing that it went against Wong Kim Ark and the traditional understanding of the Citizenship Clause. A district court issued a temporary universal injunction against the executive order, the U.S. Court of Appeals for the Ninth Circuit upheld the injunction, which barred executive officials from applying the order to anyone, not just the plaintiffs.
In Trump v. CASA (2025), a divided Supreme Court said the district court lacked the power to issue a universal injunction in the case; it did not decide the 14th Amendment constitutional question about the Citizenship Clause.
On the same day that the Supreme Court decided Trump v. CASA, a group of individuals sued the federal government in the U.S. District Court for the District of New Hampshire over President Trump’s birthright citizenship executive order. A plaintiff under the pseudonym “Barbara” led the group. The court approved a class of individuals who might be affected by its decision and issued a ruling that included an injunction. It also determined the group was likely to succeed on the merits of its claims that the executive order violated the Citizenship Clause.
On Sept. 26, 2025, the Trump administration submitted a petition for a writ of certiorari with the Supreme Court, asking the Court to consider the case. The justices granted the request on Dec. 5, 2025, agreeing to decide “whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.”
The debate over two Supreme Court decisions from Horace Gray
In briefs submitted to the justices, the two landmark Supreme Court decisions from Justice Horace Gray frame the arguments made by the petitioners (the Trump administration) and the defendants (the American Civil Liberties Union and others).
The long-held understanding of Wong Kim Ark’s majority opinion, written by Justice Horace Gray, is cited by the ACLU as a factor controlling the case. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens,” Gray wrote. He cited narrow exceptions for children of foreign sovereigns or their ministers; children born on foreign public ships; children of enemies within and during a hostile occupation of part of our territory; and children who were members of “the Indian tribes owing direct allegiance to their several tribes.”
Beyond that, Gray concluded that the 14th Amendment, “in clear words and in manifest intent includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
United States Solicitor D. John Sauer argues that Executive Order No. 14,160 complies with Wong Kim Ark when considered alongside Elk v. Wilkins, another majority opinion written by Justice Gray. In that case, John Elk, a Winnebago Native American, was born on a reservation but moved to Ohama, where he was employed and paid taxes. Elk was not allowed to vote, and, on appeal, Elk cited Section 2 of the 14th Amendment, which only excluded “Indians not taxed” as federal voting electors.
In his opinion in Elk, Gray determined that as a Native American, Elk was “no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”
Gray also wrote in Elk that the Citizenship Clause was intended to “put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside.”
The basic arguments at Court
Sauer’s primary argument is that “children of temporarily present or illegal aliens do not qualify [for citizenship] because their parents are not domiciled in, and thus do not owe the requisite allegiance to, the United States,” citing the Elk decision’s definition of political jurisdiction. He also believes the Wong Kim Ark decision supports his argument by recognizing a “general rule of citizenship by birth in the territory for children of persons ‘domiciled within the United States.’”
The ACLU is dismissive of that argument. “Wong Kim Ark’s basic holding is that the [Citizenship] Clause enshrines the preexisting common law of citizenship. Under the common law—including the dominant American decision of the era, Lynch v. Clarke, (N.Y. Ch. Ct. 1844)—the rule was citizenship by birth, regardless of parental nationality or immigration status. Domicile was irrelevant,” the ACLU states.
“More specifically, Wong Kim Ark interpreted the phrase ‘subject to the jurisdiction’ in accord with The Schooner Exchange v. McFaddon (1812), explaining that even temporary visitors are ‘subject to the jurisdiction” of the United States,’” the ACLU concludes.
Given the core constitutional questions at stake in Trump v. Barbara, the arguments at the Supreme Court will be widely watched and closely scrutinized, with a decision expected in late June.
Scott Bomboy is the editor in chief of the National Constitution Center.