Birthright Citizenship Experts Reflect Before Trump v. Barbara Litigation Commences
On March 20, the Karsh Center for Law and Democracy hosted a panel discussion that brought together leading scholars to unpack the constitutional, statutory, and political stakes of the Trump administration’s effort to redefine birthright citizenship as we know it. Moderated by Professor Amanda Frost, the event centered on Executive Order 14106, issued January 20, 2025, which seeks to narrow the scope of the Citizenship Clause of the Fourteenth Amendment. Courts swiftly blocked the order before it could take effect, though agencies may still prepare implementation guidance. At the time of press, oral arguments have officially begun on Trump v. Barbara, where questions of the EO’s constitutionality will be answered. Many now wait with bated breath.
Frost opened with the constitutional background leading up to the Executive Order's issuance: for over a century, the Citizenship Clause of the Fourteenth Amendment has been understood to confer citizenship at birth to nearly everyone born on U.S. soil.1 The Trump administration’s executive order departs from that consensus by excluding children born to undocumented immigrants or those on temporary visas, reframing the meaning of “subject to the jurisdiction thereof.”
Panelist Leti Volpp of Berkley Law turned to the history of the Fourteenth Amendment, ratified in 1868 after the emancipation of slaves in the country, now with newfound autonomy and questions of which country they belonged to. She emphasized its universal, race-neutral language, noting that the framers intended broad inclusion with only narrow exceptions: children of foreign diplomats, members of sovereign Native American tribes, and those born to invading hostile forces. Legislative debates at the time explicitly acknowledged that the amendment would extend citizenship to children of noncitizens, including Chinese migrants. This understanding was later confirmed in United States v. Wong Kim Ark (1898). In that decision, the Court held that a U.S.-born child of Chinese nationals was a citizen, rejecting arguments that parental status could override birthplace.
Volpp rejected the administration’s reliance on “invasion” rhetoric to justify the exclusion of undocumented children, arguing that the historical exception referred to military incursions threatening sovereignty, not modern immigration questions. She further criticized the government’s reinterpretation of jurisdiction as requiring complete political allegiance or domicile, contending that such readings invert the logic of Wong Kim Ark and misapply historical sources. In fact, the understanding of the court at the time of Wong Kim Ark pointedly separated citizenship from political allegiance.
Offering a contrasting perspective, University of Pennsylvania Political Science Professor Rogers M. Smith traced the evolution of birthright citizenship debates into the twentieth century. While acknowledging that a broad interpretation prevailed from the New Deal era onward, he argued that the framers of the Fourteenth Amendment did not confront the question of illegal immigration, which did not exist in its modern form before federal immigration restrictions. Smith suggested that Congress still retains the authority to address such gaps and invoked English common law traditions emphasizing “permanent allegiance” as a basis for limiting citizenship. At the same time, he noted that the Trump administration chose executive action rather than legislation after failing to secure congressional reform during its first term, raising separation-of-powers concerns.
Rachel Rosenbloom of Northeastern School of Law focused on the structure and purpose of EO 14106. The order defines jurisdiction in negative terms, effectively limiting citizenship to children whose parents meet specific legal status requirements. It also directs federal agencies to deny citizenship documentation to those outside these categories and adopts narrow biological definitions of “mother” and “father,” raising additional legal questions. She notes that the EO would exclude children of parents with legal visas, no matter the length, from obtaining citizenship at birth. Rosenbloom emphasized that the order was designed less to immediately change policy than to force judicial resolution of a long-simmering debate on the future of immigration.2 By creating a class of directly affected plaintiffs, children denied recognition of citizenship, the administration ensured a justiciable controversy capable of reaching the Supreme Court. And now it has. Nonetheless, she underscored that even if the administration’s constitutional theory were accepted, the use of an EO rather than legislation presents serious constitutional problems aside from the substance of the Citizenship Clause.
On behalf of challengers represented by the American Civil Liberties Union, Rosenbloom outlined the core constitutional argument: the Citizenship Clause codified the longstanding English common law rule of jus soli, under which nearly all persons born within sovereign territory are citizens. This principle, she argued, persisted through early American jurisprudence (with racial exclusions later repudiated) and was reaffirmed in Wong Kim Ark. The Clause’s framers sought to eliminate racial restrictions, not to narrow the underlying rule. As such, the administration’s emphasis on parental allegiance or domicile finds little support in constitutional text or history.
Michigan Law’s Kristin Collins highlighted an often-overlooked statutory dimension. The federal birthright citizenship statute, codified at 8 U.S.C. § 1401(a), traces back to the Civil Rights Act of 1866 and subsequent revisions in 1940 and 1952. These legislative enactments, she argued, independently guarantee citizenship to those born in the United States, incorporating established legal meanings of “jurisdiction.” Applying canons of statutory interpretation, Collins contended that Congress adopted the prevailing understanding of the term, which consistently included children of noncitizens regardless of immigration status. As a result, even if constitutional arguments remain contested, the executive order conflicts with binding federal law that the President lacks the authority to override.
The panel also explored practical implications. Frost noted that the order could impose significant administrative burdens by requiring proof of citizenship for millions of newborns each year. Audience questions raised concerns about potential statelessness. Panelists suggested that while many children would inherit citizenship from their parents’ home countries, others could face uncertain legal status, potentially subject to deportation or reliance on ad hoc international arrangements.
Discussion turned to comparative perspectives, with an audience member noting that European countries often rely on parental citizenship rather than birthplace. Still, panelists rebutted that Europe operates within distinct historical and social contexts different from our own. Unlike the United States, many nations lack a constitutionalized jus soli guarantee, and their policies reflect distinct demographic and political dynamics.
As for the Supreme Court’s likely approach, predictions remained cautious. Rosenbloom suggested that while several justices may favor resolving the case on constitutional grounds, a broader coalition could emerge around statutory interpretation as a narrower basis for decision. Collins similarly anticipated a possible statutory ruling, though she warned the outcome could be fractured. Smith speculated that the Court might ultimately reject the administration’s position, whether on historical, doctrinal, or statutory grounds.
Despite uncertainty over the Court’s ruling, panelists agreed on one point: the case reflects not only a legal dispute but a broader political strategy. By forcing the issue into litigation, the administration has reignited fundamental questions about citizenship, sovereignty, and constitutional meaning: questions that, regardless of the outcome in Trump v. Barbara, are unlikely to be settled anytime soon.
