Trump v. Barbara: The Supreme Court and Birthright Citizenship

Trump v. Barbara: The Supreme Court and Birthright Citizenship

(This post is a follow-up to “Birthright Citizenship, ‘Subject to the Jurisdiction Thereof,’ and the Construction Industry")

On June 30, 2026, the United States Supreme Court issued its long-awaited decision in Trump v. Barbara, addressing President Donald Trump’s attempt to limit birthright citizenship through Executive Order 14160, Protecting the Meaning and Value of American Citizenship.

The case presented a straightforward question with potentially enormous consequences: Does the Fourteenth Amendment guarantee United States citizenship to children born in the United States when their parents are unlawfully or temporarily present in the country?

The Supreme Court answered yes.

The Court held that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States and therefore are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.

What Happened?

On January 20, 2025, President Trump issued Executive Order 14160. Among other things, the Order directed federal agencies not to recognize United States citizenship for certain children born in the United States after the Order's effective date.

Specifically, the Order addressed children born in the United States where the child's mother was unlawfully present or temporarily present in the United States and the child's father was neither a U.S. citizen nor a lawful permanent resident.

The Order was based on the Administration's interpretation of the Fourteenth Amendment's Citizenship Clause, which provides: “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 Administration argued that children in the categories identified by the Executive Order were not sufficiently “subject to the jurisdiction” of the United States to receive citizenship automatically at birth.

Several parents challenged the Executive Order in federal court. The district court preliminarily enjoined enforcement of the Order and provisionally certified a nationwide class of children who would be affected by it.

The Supreme Court agreed to hear the case before judgment by the Court of Appeals.

On June 30, 2026, the Supreme Court affirmed.

The Court held that the Citizenship Clause extends citizenship at birth to children born in the United States to parents who are unlawfully or temporarily present.

In other words, the Executive Order could not accomplish what it attempted to accomplish.

But the Court's decision was not unanimous, and the Justices took substantially different approaches to the constitutional question.

The Majority Opinion

Chief Justice John Roberts authored the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. The majority began with the text and history of the Fourteenth Amendment, including the English common law tradition of birthright citizenship and the history surrounding Dred Scott v. Sandford (which essentially created an exception to the rule), and the adoption of the Fourteenth Amendment following the Civil War.

The majority ultimately concluded that the Constitution does not permit the President to create the exceptions to birthright citizenship contained in Executive Order 14160. The Court therefore affirmed the judgment below.

Justice Jackson's Concurrence

Justice Ketanji Brown Jackson wrote separately and was joined by Justice Sotomayor as to the introduction and Part I. She agreed with the Court’s opinion but wrote separately to respond to arguments raised by Justice Thomas's dissent. Specifically, she pointed out that Justice Thomas has referred to the Constitution as “colorblind,” but here insisted that the Citizenship Clause was race-conscious.

Justice Kavanaugh's Concurrence and Partial Dissent

Justice Brett Kavanaugh took a different approach. Although he agreed that the Executive Order could not take effect, he disagreed with the majority's constitutional analysis.

Kavanaugh concluded that the Executive Order violated the federal statute governing citizenship, 8 U.S.C. § 1401(a). In his view, Congress had already enacted a statutory rule governing birthright citizenship, and the Executive Order was inconsistent with that statute.

Importantly, however, Kavanaugh did not agree with the majority that the Fourteenth Amendment itself necessarily prohibited the restrictions contained in the Executive Order. He wrote that Congress could, consistent with the Fourteenth Amendment, amend § 1401(a) or enact new legislation establishing exceptions to birthright citizenship. Congress, however, had not done so.

Justice Thomas's Dissent

Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented. Thomas's analysis focused heavily on the original meaning and historical context of the Citizenship Clause. In his view, the Fourteenth Amendment was designed to guarantee citizenship to persons born in the United States who were sufficiently connected to the United States, particularly those who were domiciled here. He rejected the majority's broader interpretation of the Citizenship Clause.

But despite this position, Justice Thomas conceded that at least some illegal immigrants could be domiciled here, such that their children born here would be citizens. (See fn. 10). However, he was unwilling to reach a decision on that point because this was a facial, rather than as-applied, challenge.

Justice Alito's Dissent

Justice Alito also dissented separately. His opinion likewise focused on the text and historical meaning of the Citizenship Clause. He concluded that the Fourteenth Amendment does not confer citizenship on every child born within the territorial United States regardless of the parents’ circumstances.

Among other things, Alito addressed the potential application of the rule to children born to temporary visitors, including so-called “birth tourists.”

Justice Gorsuch's Dissent

Justice Gorsuch joined Justice Thomas's dissent but also wrote separately. His opinion presented what he described as two competing understandings of the Citizenship Clause. The first views the Clause as incorporating the traditional English common-law rule of citizenship based upon birth within the territory (jus soli). The second, according to Gorsuch, focuses on whether the child’s parents have made the United States their permanent home.

Gorsuch also emphasized an important procedural point: the plaintiffs had brought a facial challenge to the Executive Order. But he could see potential lawful applications of the Executive Order, making a facial challenge inappropriate.

It’s worth noting that Justice Gorsuch is more skeptical than Justices Thomas or Alito of preventing children of immigrants from being considered citizens: “The government insists that aspect of the order can survive any possible legal challenge, too, because individuals can secure domicile in this country only if they do so in compliance with federal law […]  About that, however, I harbor doubts.”

So What Does the Decision Mean?

The immediate legal consequence is clear: Executive Order 14160 cannot deny citizenship at birth to children who fall within the categories addressed by the Order. The Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment.

But the decision should not be confused with a decision about immigration status or employment authorization. Citizenship, immigration status, lawful presence, and employment authorization are related concepts, but they are not interchangeable.

Conclusion

Trump v. Barbara resolves an important constitutional question, but it does not fundamentally rewrite the rules. The Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present are entitled to citizenship at birth under the Fourteenth Amendment. The Justices, however, reached that result through significantly different approaches to constitutional text, history, precedent, domicile, and the relationship between the Constitution and federal statutory law.