The question of who decides may be as important as that of what must be decided.
This morning, the U.S. Supreme Court will hear the much anticipated oral arguments in the birthright citizenship case, Trump v. Barbara. I confess that I am pretty much where I was when I wrote about it after President Trump’s executive order, at the start of his non-consecutive second term.
To cut to the chase, I believe the president is right about the policy: The drafters of the 14th Amendment (ratified in 1868) did not intend to grant birthright citizenship to children born in the United States to the non-American parents who were subject to the jurisdiction of a foreign sovereign. The principal objective of the amendment was to reaffirm the American citizenship of freed slaves (which had been affirmed by the Civil Rights Act of 1866).
There are two problems, however.
The first, on which Dan has written compellingly (see here and here), is the Court’s 1898 precedent, United States v. Wong Kim Ark. I don’t agree with the reasoning of the case, which holds that the drafters of the amendment intended to import from British common law what the Court interpreted as the jus soli principle: with limited exceptions not here relevant, birthright citizenship derived from one’s country of birth (the soil), as opposed to the jus sanguinis concept of citizenship derived from parentage (i.e., by blood). I don’t believe the 14th Amendment’s reference to a person’s being born “subject to the jurisdiction” of the United States refers to mere presence in our country.
Everyone, Americans and non-Americans alike, are subject to our laws while here, just as we Americans must obey the laws of other countries while present in them. The unremarkable fact of presence does not affect citizenship. Rather, in the context of citizenship, being subject to the jurisdiction of a sovereign means to bear the duties and fidelity of a citizen. Consider: A French citizen who is present in our country and plots against our government may not be prosecuted for treason; because he is not a citizen, he lacks the duty of fidelity an American owes — only an American can be a traitor as required for a treason charge.
Randy Barnett has an excellent op-ed in the Wall Street Journal today, pointing to scholarship indicating that the concept of jus soli was more complicated than the Wong Kim Ark Court suggested; it “turned not simply on place of birth, but on protection, allegiance and the sovereign’s acceptance of the parents presence.” (Professor Barnett also distinguishes Wong Kim Ark on the ground that the parents of the person at issue, non-Americans from China, were not residing illegally or temporarily in the U.S. when their child was born.)
All that said, though, the language of Wong Kim Ark is undeniably sweeping. It clearly endeavors to cover the issue of all births in the U.S. of children of foreigners. Perhaps most importantly, it has been an undisturbed precedent for 128 years; people, institutions, the states, and the federal government have organized arrangements and legal entitlements around it. Hence, even jurists who are not persuaded by the rationale of Wong Kim Ark could be inclined to retain it on stare decisis grounds.
The second problem is unilateral action by the president. On this, the first 14 months of the second Trump term have made the context in which the birthright citizenship case will be decided much worse for the president than when I wrote in January 2025. Trump likes to act autocratically even when he is dealing with matters as to which the Constitution gives Congress pride of place, or at least shared authority, and even when he could easily ask for congressional buy-in. There is now an extensive record of judicial uneasiness (sometimes, outright hostility) to that manner of wielding executive power. I don’t believe the justices — even those who may have their doubts about Wong Kim Ark — will be comfortable with a matter of such significance being decided by an executive order . . . one that could be undone by the next chief executive.
The Constitution makes Congress, not the president, the branch of government that establishes the terms of citizenship (in Article I, Sec. 8). Of course, the 14th Amendment does not direct Congress to do anything; instead, in a self-executing manner, it prescribes that people born in the United States and subject to its jurisdiction are citizens. The present Supreme Court, just like the Wong Kim Ark Court, could simply treat the question of what jurisdiction means in this context as one of legal interpretation on which the Court could give a final answer. Indeed, this Court could say the Wong Kim Ark ruling already provided that answer.
It is often the preference of the Roberts Court, however, to decide cases very narrowly, leaving most issues for the political branches to work out — which, of course, should be the default setting for a self-determining republic. That being so, I could see the Court ruling that, to the extent the amendment may leave room for defining what jurisdiction means, that authority belongs to Congress.
Consequently, even though the president is right, in my opinion, on the policy, I am skeptical that the present Court will overturn or drastically narrow Wong Kim Ark. And I am more confident that, to the extent it may be permissible to refine the understanding of jurisdiction for 14th Amendment purposes, the justices will rule that the president may not do so unilaterally.