Birthright Citizenship, “Subject to the Jurisdiction Thereof,” and the Construction Industry

The United States Supreme Court is set to hear oral arguments on April 1, 2026 in what might be the single most important case of their term: Trump et al. v. Barbara et al. (Case No. 25-365). The issue, broadly, involves whether individuals born in the United States are citizens by birth when their parents are here illegally or temporarily.

Immigration to the United States is vastly complicated and not our area at Heckman Law, PC. However, the construction workforce in this country depends, in an outsized way, on immigrant labor. With that in mind, this post aims to provide a practical overview of the issues, the competing arguments, and the potential implications for the construction industry.

Background

14^th Amendment

“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.” US. Const., Amend. 14, section 1 (the “Citizenship Clause”).

Ratified in 1868, the Fourteenth Amendment was intended, in part, to guarantee citizenship to formerly enslaved persons and their children. However, the text is broader. It does not limit itself to any particular group, but neither does it expressly address children born to non-citizens.

If you're following the discussions on social media, you have likely seen numerous quotes presented on both sides from the 39th Congress (the Congress that ratified the amendment). Bear ind mind that the Court will be focused on the language of the Constitution more than any particular legislator's comments.

United States v. Wong Kim Ark (1898)

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court addressed whether a child born in the United States to non-citizen parents was nonetheless a U.S. citizen.

Wong Kim Ark was born in San Francisco to Chinese parents who were Chinese citizens, but lawfully residing in the United States. After traveling abroad, Wong Kim Ark was denied reentry on the ground that he was not a citizen.

The Supreme Court disagreed, holding that a child born in the United States to non-citizen parents (so long as those parents were not foreign diplomats or otherwise exempt from U.S. law) acquires citizenship at birth.

In practical terms, the case has long been understood to stand for the principle that birth in the United States confers citizenship, even where the parents are not themselves citizens, at least where they are lawfully present.

President Trump’s Executive Order and Universal Injunctions

Executive Order No. 14,160

On January 20, 2025, President Trump issued Executive Order No. 14,160, titled “Protecting the Meaning and Value of American Citizenship.” The Order provides that children born after February 19, 2025 will not be recognized as U.S. citizens if (1) their mother is unlawfully present or in a temporary status, and (2) their father is neither a U.S. citizen nor a lawful permanent resident.

Legal challenges followed almost immediately. Several groups and individuals representing the children of undocumented immigrants filed suit to enjoin enforcement of the EO. In several of those lawsuits, the petitioners sought a nationwide injunction (often called universal injunctions). This was a procedural issue as to whether one district court (e.g., Northern District of Texas, Central District of California) has the power to issue an injunction nationwide. The nationwide injunction has been a target of various groups for decades.

Nationwide Injunctions (Trump v. CASA et al., Trump v. Washington et al., etc.)

In several cases (including Trump v. CASA, Trump v. Washington, and Trump v. New Jersey. ), federal district courts issued nationwide injunctions blocking enforcement of the Executive Order. For example, Judge John Coughenour of the Western District of Washington described the Order as “blatantly unconstitutional” in granting a temporary restraining order. The Trump administration appealed, not on the merits of birthright citizenship, but on the procedural question of whether district courts have the authority to issue nationwide injunctions. The three cases above were consolidated for the Supreme Court.

On June 27, 2025, the Court (in an opinion authored by Justice Barrett) sided 6-3 with the Trump administration, holding that such injunctions likely exceed the district courts’ authority. Although getting rid of nationwide injunctions (except in particular procedural circumstances) was a huge ruling, it was overshadowed by the reality that the merits of the case had yet to be decided.

Trump et al. v. Barbara et al.

Procedural Background

Following the Supreme Court’s ruling on nationwide injunctions, a new case was filed in New Hampshire on behalf of a class of affected individuals proceeding under the pseudonym “Barbara.”

The district court certified the class and issued an injunction applicable to that class, one of the procedural paths left open by the Court’s earlier decision. The Supreme Court granted certiorari on December 5, 2025.

The Arguments

The case centers on the meaning of the phrase “subject to the jurisdiction thereof.” The Trump administration argues that the phrase requires complete political jurisdiction, excluding children of those who are unlawfully present or only temporarily in the United States.

The challengers argue for a broader reading: that “jurisdiction” means being subject to U.S. laws and legal authority, a standard that would include nearly all individuals physically present in the country.

Because the Supreme Court has five self-described originalists, a lot of the commentary has focused on the original public meaning of the Citizenship Clause (that is, the meaning a reader at the time of its ratification would have understood it to have). Bear in mind that originalism is a method of constitutional interpretation.

However, in addition to the constitutional arguments, several commentators argue that this case could be decided on statutory (as opposed to constitutional) grounds. 8 USC section 1401(a) pulls "subject to the jurisdiction thereof" verbatim from the Constitution. That section was adopted in 1940 and reenacted in 1952. Because this is a statute and not the Constitution itself, the Court may look to the statute's plain meaning, holding that the EO contradicts the statutory language. In that circumstance, the statute wins against the EO.

In any event, the stakes are significant. A ruling for the challengers would reaffirm longstanding interpretations of the Citizenship Clause. A ruling for the administration would represent a substantial shift in constitutional doctrine and practice.

The Amici

Numerous parties filed amicus briefs. These are briefs filed with the court by people or organizations who are not parties to the suit, but have a strong interest in its outcome, such as advocacy groups, businesses, scholars, or governments.

The parties with briefs in favor of the Trump administration’s interpretation are largely limited to Republican organizations and individuals.

For the respondents, the briefs span the political spectrum, from the political left to the political right, conservatives, centrists, and libertarians.

Oral Arguments

On April 1, 2026, the Supreme Court heard oral arguments (audio is here, and a transcript is here). Solicitor General D. John Sauer presented the government's case, and Cecillia Wang of the ACLU argued on behalf of the EO's challengers.

Speaking broadly (without turning this into a 50-page post), SG Sauer received substantial pushback from the justices on the administration's narrow reading of the Fourteenth Amendment. It is true that oral arguments are not good indicators of where the justices will come down, but it sounded like SG Sauer has a serious uphill battle. On the other hand, Ms. Wang did seem to struggle somewhat with arguments from the conservative wing of the court, including with several justices who (during SG Sauer's arguments) sounded friendly to her position.

There was not as much discussion of a statutory off-ramp as many court watchers expected. The justices seemed very interested in the language of the Constitution. The decision might end up on constitutional grounds.

On the whole, oral arguments seemed to confirm for everyone that the administration is likely to lose this case.

The Construction Industry and Immigration

The construction industry is uniquely sensitive to shifts in immigration policy. By most estimates, a substantial portion of the U.S. construction workforce consists of immigrants, including both documented and undocumented workers. Any policy change that affects immigration flows, workforce stability, or long-term residency has downstream effects on labor availability, project timelines, and costs.

If the Supreme Court narrows birthright citizenship, the immediate legal impact will fall on newborns. But the longer-term effects could be broader.

First, workforce stability may be affected. Families with uncertain legal status may be less likely to remain in the United States long-term, particularly if their U.S.-born children no longer have a clear path to citizenship. For an industry that depends on experienced labor, increased turnover can translate directly into higher costs and delays.

Second, labor supply could tighten. The construction industry already faces persistent labor shortages in many markets, including Texas and California. A reduction (actual or perceived) in the incentives to remain in or come to the United States could exacerbate those shortages.

Third, compliance and risk allocation may become more prominent in construction contracts. Owners and general contractors may place increased emphasis on workforce verification, indemnity provisions, and compliance with federal and state immigration laws. This, in turn, could shift risk down the contractual chain to subcontractors.

Finally, there are broader economic implications. Labor shortages tend to increase wages, which can be beneficial for workers but also increase project costs. In large-scale development projects, even modest cost increases can affect feasibility, financing, and timelines.

None of these outcomes are certain, and much will depend on how any ruling is implemented and whether it prompts further legislative or regulatory action. But for an industry already navigating tight margins and labor constraints, the potential ripple effects are difficult to ignore.

As far as we have seen, no trade organizations (e.g., Associated General Contracts of America, Association of Builders and Contractors) have come down one way or the other on this particular case, or even this one particular issue. However, both Associated General Contractors of America and Associated Builders and Contractors have stressed the labor shortages and workforce difficulties that currently exist.

Predictions (for What They’re Worth)

Among court-watchers and lawyers generally, the expectation seems to be that the Supreme Court will rule against the Trump administration and uphold birthright citizenship, and we at Heckman Law, PC see no reason to anticipate otherwise. Our predictions are (1) 7-2 decision, (2) Justices Thomas and Alito in the dissent, and (3) on statutory grounds.

(GAH Update: Having heard oral arguments, I still think it's 7-2, perhaps on constitutional grounds)

Conclusion

However the Supreme Court rules in Trump v. Barbara, the decision will have serious real world consequences. While the case centers on the meaning of “subject to the jurisdiction” of the United States, its effects may ripple into industries that depend heavily on immigrant labor, not to mention affecting millions of families across the United States.

Any shift in immigration policy can influence workforce stability, labor supply, and project costs over time. For now, industry participants should monitor developments and remain mindful of how broader legal changes may translate into operational and contractual risk.

(GAH Update: This post was updated on April 3, 2026 to add the discussion regarding oral arguments, which took place on April 1, 2026)