The Constitutionalization of Jus Soli in the Fight To Define Birthright Citizenship in the United States

Birthright citizenship — Citizenship clause — Executive power — Jus soli — Fourteenth amendment — Unlawful presence — Temporary presence — Immigration and nationality Act — Denial of citizenship — Natural-born subject — Natural allegiance.

Trump v. Barbara is the Supreme Court’s merits decision on President Trump’s Executive Order No. 14160, “Protecting the meaning and value of American citizenship.” The Order attempted to deny citizenship at birth to children born in the United States when neither parent was a United States citizen or lawful permanent resident, including children of parents unlawfully present and children of parents present only temporarily. The Court affirmed the District of New Hampshire’s class-wide preliminary injunction and held that such children are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment and 8 U.S.C. § 1401(a).

The decision is important for three reasons. First, it constitutionalizes a broad jus soli rule rooted in the common law and in the reconstruction repudiation of Dred Scott v. Sandford. Second, it treats United States v. Wong Kim Ark not as a narrow domicile case but as the controlling statement that the Citizenship Clause adopts territorial birthright citizenship subject to limited exceptions. Third, it closes, at least for ordinary legislation and executive action, the argument that the federal political branches may deny citizenship to United States-born children based on the immigration status or temporary presence of their parents. The decision therefore transforms the earlier remedial controversy in Trump v. CASA into a substantive constitutional defeat for the Executive Branch.

Jack R. Mangala

A. Facts and Ruling

On January 20, 2025, President Trump issued Executive Order No. 14160. The Order declared that certain children born in the United States were not “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause. It directed federal agencies not to recognize citizenship for children whose mothers were unlawfully present, or whose mothers were lawfully but temporarily present, unless the child’s father was a citizen or lawful permanent resident. Because 8 U.S.C. § 1401(a) uses the same constitutional phrase, the Order treated both constitutional and statutory citizenship as unavailable to the covered children.

Several parents and children challenged the Order in Barbara v. Trump. The District Court held that the plaintiffs were likely to succeed on their constitutional and statutory claims. After the Supreme Court’s remedial decision in Trump v. CASA limited the general availability of universal injunctions, the District Court provisionally certified a nationwide class of children affected by the Order and entered classwide preliminary relief. The Government sought review before judgment, asking the Supreme Court to decide whether the Order was lawful.

Chief Justice Roberts wrote the opinion of the Court. The Court held that children born in the United States to parents who are unlawfully or temporarily present are born “in the United States” and “subject to the jurisdiction thereof.” They are therefore citizens from birth. The majority affirmed the District Court and emphasized that the Order’s exclusion was inconsistent with the constitutional text, the common-law background of the Citizenship Clause, Reconstruction history, and United States v. Wong Kim Ark.

The Court’s reasoning proceeds in four steps. First, the majority reads the Citizenship Clause against the English common-law principle that birth within the sovereign’s territory generally created natural allegiance and subjectship. The Court described the exceptions as narrow: children of foreign diplomats, children born in hostile occupation, and children born outside the sovereign’s effective dominion. Second, it places the Fourteenth Amendment in its Reconstruction setting as a direct response to Dred Scott v. Sandford, which had denied national citizenship to Black Americans. Third, it interprets United States v. Wong Kim Ark as establishing that children born in the United States to noncitizen parents fall within the Citizenship Clause unless they fit one of the traditional exceptions. Fourth, it rejects the Government’s attempt to treat unlawful or temporary parental status as equivalent to diplomatic immunity or foreign sovereign allegiance.

The separate opinions sharpen the stakes. Justice Jackson concurred to underscore the egalitarian and anti-caste meaning of the Fourteenth Amendment. Justice Kavanaugh concurred in the judgment but wrote separately to stress that, even if one treats the constitutional question as more difficult, Congress had not displaced the statutory rule codified in § 1401(a). Justice Thomas, joined by Justice Gorsuch, dissented from the constitutional holding, arguing that the phrase “subject to the jurisdiction” historically meant complete political allegiance and did not necessarily include children of temporary visitors. Justice Alito and Justice Gorsuch also wrote dissenting opinions emphasizing interpretive caution, democratic authority, and the perceived limits of United States v. Wong Kim Ark.

B. Legal Discussion

1. Text and structure. The textual dispute centers on “subject to the jurisdiction thereof.” The Government read this language as requiring a form of full and undivided political allegiance. The majority instead read it as ordinary legal subjection to United States authority at birth. That reading has considerable force. Persons unlawfully present in the United States may be arrested, prosecuted, removed, taxed in many circumstances, and otherwise regulated by American law. Their temporary or unlawful status does not place them beyond territorial jurisdiction. The majority’s approach also avoids an instability problem: if citizenship depended on a parent’s status, intention, visa category, or later removal, a child’s constitutional status would turn on administrative classifications alien to the text of the Fourteenth Amendment.

The decision distinguishes jurisdiction from consent. A person can be subject to a state’s jurisdiction even when the person lacks political membership, lacks a right to remain, or entered in violation of law. That distinction is familiar across immigration doctrine. Cases such as Nishimura Ekiu v. United States and The Chinese Exclusion Case recognize broad federal power over admission and exclusion, but they do not imply that persons physically present in the United States are outside domestic legal authority. Likewise, Zadvydas v. Davis reflects that noncitizens present in the country may invoke constitutional limits on detention. Trump v. Barbara uses that broader legal intuition to reject a status-based exception to birthright citizenship.

2. History and reconstruction. The majority’s historical argument begins with the common-law tradition represented by Calvin’s Case and echoed in early American cases such as Inglis v. Trustees of Sailor’s Snug Harbour. The central idea is that birth under the protection of the sovereign normally created a reciprocal relationship of allegiance and protection. The Fourteenth Amendment did not copy every feature of English subjectship, but the majority concludes that the Citizenship Clause constitutionalized the territorial rule while adapting it to republican citizenship.

The Reconstruction setting is decisive. Dred Scott v. Sandford denied that Black persons could be citizens of the United States. The Civil Rights Act of 1866 and the Fourteenth Amendment repudiated that holding by placing national citizenship beyond ordinary political bargaining. The majority treats this constitutional settlement as incompatible with a rule that would allow the Executive to create new hereditary exclusions. In this respect, Trump v. Barbara resembles later nationality cases such as Afroyim v. Rusk and Trop v. Dulles, which emphasize that citizenship is not a mere administrative benefit but a constitutional status of the highest order.

3. The role of United States v. Wong Kim Ark. The most important precedent is United States v. Wong Kim Ark. The Government argued that the case was limited to children of parents who were lawfully domiciled in the United States. The majority rejected that limitation. It acknowledged the facts of domicile in United States v. Wong Kim Ark but treated the opinion’s reasoning as broader: the Citizenship Clause carried forward the common-law rule of birth within the territory, subject only to established exceptions. That reading gives United States v. Wong Kim Ark a canonical status comparable to The Slaughter-House Cases on the existence of national citizenship, even though The Slaughter-House Cases gave a narrow reading to other parts of the Fourteenth Amendment.

The dissenters’ best point is that some nineteenth-century materials used the language of allegiance in ways that can sound more demanding than simple territorial subjection. Elk v. Wilkins also shows that the Court once treated members of tribal nations as not automatically subject to United States jurisdiction in the relevant sense. But the majority explains that the tribal context rested on a distinct relation between sovereigns, not on ordinary alienage. Parents unlawfully or temporarily present in the United States do not possess diplomatic immunity, do not carry with them a foreign enclave, and do not place their United States-born children outside domestic legal authority.

4. Immigration status and equal protection. Although Trump v. Barbara is a Citizenship clause case, its logic interacts with equal protection doctrine. In Yick Wo v. Hopkins, the Court famously held that constitutional protections extend to “all persons” within the territorial jurisdiction, regardless of nationality. Plyler v. Doe later held that undocumented children are “persons” for Equal Protection purposes, even though the state may not be required to treat all immigration categories identically. Trump v. Barbara does not make undocumented parents or temporary visitors citizens. Rather, it prevents their status from becoming an inherited constitutional disability for children born in the United States.

This is the anti-hereditary core of the opinion. The Order would have created a class of United States-born persons whose lack of citizenship flowed from their parents’ immigration status. The majority’s constitutional reading prevents the state from turning parental irregularity into a transmissible civic exclusion. The point is not that the federal government lacks power to regulate immigration. It is that once a child is born within United States territory and is subject to ordinary domestic law, the Citizenship Clause supplies a rule of membership that executive policy cannot contract.

5. Executive power and statutory citizenship. The Executive Order also raised separation-of-powers concerns. The President has substantial authority in immigration enforcement, but he cannot by executive order amend the Constitution or revise a congressional citizenship statute. Section 1401(a) codifies the Citizenship Clause in nearly identical terms. The Court’s constitutional holding leaves little room for statutory avoidance: if the children are constitutionally citizens, agencies must recognize them as citizens. Justice Kavanaugh’s separate opinion highlights a narrower institutional point: even those unsure about the constitutional breadth of the Clause should hesitate before allowing the Executive to create exceptions that Congress did not enact.

6. Remedies after Trump v. CASA. The litigation history also matters. Trump v. CASA held that federal courts generally lack authority to issue universal injunctions detached from the parties before them. Barbara v. Trump responded through class certification, and Trump v. Barbara affirmed classwide relief. The sequence illustrates the practical importance of class actions in public-law litigation after Trump v. CASA. Courts may be more limited in granting nationwide relief as an equitable matter, but a properly certified nationwide class can still produce nationwide protection when the substantive right belongs to a similarly situated class. Trump v. Barbara thus narrows the remedial significance of Trump v. CASA in the birthright-citizenship setting.

7. Limits and future disputes. The decision does not answer every citizenship question. It does not define the citizenship of children born abroad to United States citizens, an area still shaped by statute and cases such as Rogers v. Bellei. It does not alter the exceptions for children of diplomats or persons born where the United States lacks effective sovereign control. It also does not confer lawful immigration status on parents. What it does settle is more fundamental: ordinary immigration status, including unlawful presence or temporary admission, is not a constitutional basis for denying citizenship to a child born on United States soil.

The broader doctrinal effect is to reaffirm birthright citizenship as a constitutional rule rather than a policy preference. The Court frames citizenship as a boundary marker of the constitutional community, not a discretionary reward. That framing will influence future debates over denaturalization, expatriation, administrative recognition of citizenship, and the evidentiary burdens placed on persons claiming citizenship. In that sense, Trump v. Barbara joins United States v. Wong Kim Ark and Afroyim v. Rusk as a leading citizenship decision.

8. Additional doctrinal implications. A further strength of the majority opinion is its treatment of the Fourteenth Amendment as a rule of administration. Citizenship must be knowable at birth. A constitutional rule that requires officials to determine whether a parent was unlawfully present, lawfully admitted, temporarily present, permanently domiciled, or intending to remain would invite retrospective uncertainty. Birth certificates, passports, social security records, school enrollment, public benefits, and later voting rights would all become vulnerable to collateral challenges. The majority’s territorial rule avoids making citizenship depend on unstable immigration classifications or the accuracy of agency determinations made long after birth.

This administrability concern is not merely pragmatic; it is constitutional. The Citizenship Clause was placed in the Constitution to settle a question of national membership. After Dred Scott v. Sandford, Congress and the states deliberately removed the core of national citizenship from ordinary political discretion. A rule that allows the Executive to define disfavored classes of United States-born children out of citizenship would revive, in a modern administrative form, the very insecurity the Fourteenth Amendment was designed to prevent. Trump v. Barbara therefore reads the Clause as a self-executing constitutional guarantee, not as an invitation for presidential implementation.

The majority also uses United States v. Wong Kim Ark to limit selective originalism. Both sides invoked nineteenth-century sources, but they disagreed about the relevant level of generality. The Government relied on snippets suggesting that “jurisdiction” meant total allegiance and on materials treating temporary visitors as different from domiciled residents. The majority instead emphasized the larger common-law structure, the narrowness of traditional exceptions, and the Court’s own settled reading in United States v. Wong Kim Ark. The opinion’s method is therefore historical but precedent-conscious: it does not allow contested fragments of legislative history to overcome a long-settled constitutional rule.

The dissents matter because they identify the questions likely to resurface. Justice Thomas’s approach would make domicile and allegiance central; Justice Alito’s dissent highlights concerns about incentives for unlawful migration and about the Court’s institutional role; Justice Gorsuch’s dissent emphasizes that the majority may have moved beyond the narrowest reading of United States v. Wong Kim Ark. These arguments may continue to shape legislative proposals, but Trump v. Barbara makes clear that such proposals cannot override the Constitution by ordinary statute or executive order. At most, they may regulate proof, documentation, and the citizenship of persons born abroad, provided they do not deny the citizenship of persons constitutionally entitled to it at birth.

The class-action posture is also worth emphasizing for public-law litigation. After Trump v. CASA, the Government had reason to believe that even a clearly unlawful policy might survive in partial form if relief were limited to named plaintiffs. Barbara v. Trump showed the countermeasure: a nationwide class of children facing the same legal injury. Trump v. Barbara affirms that, when a class is properly certified, nationwide practical consequences may follow from ordinary party-based adjudication. The decision therefore distinguishes between forbidden “universal” injunctions and permissible classwide relief, a distinction that will be central in future challenges to federal policies affecting large populations.

Finally, the decision has implications for state and local governments. Birthright citizenship is federal and constitutional; states cannot create narrower citizenship categories for state purposes. Once Trump v. Barbara confirms that a child is a citizen at birth, state denial of ordinary citizenship-linked benefits would likely trigger constitutional scrutiny. This point connects Trump v. Barbara to Yick Wo v. Hopkins and Plyler v. Doe: even when immigration enforcement remains primarily federal, state and local actors must respect constitutional personhood and citizenship status. The ruling therefore stabilizes not only federal passport and nationality practice but also the many state-law contexts in which citizenship is assumed rather than litigated.

Doctrinally, Trump v. Barbara may be read as a citizenship counterpart to Afroyim v. Rusk. Afroyim v. Rusk protects the citizen against involuntary loss of citizenship; Trump v. Barbara protects the United States-born child against executive denial of citizenship at the moment of birth. Together with United States v. Wong Kim Ark, the cases suggest a constitutional sequence: the Fourteenth Amendment confers citizenship by birth within the territory; Congress may regulate evidence and procedures but may not narrow the constitutional class; and the government may not later strip citizenship as a penalty or policy instrument. That synthesis gives the Citizenship Clause unusual stability in an era of aggressive executive migration control.

A useful way to teach the case is to separate three categories. First are persons born in the United States and subject to ordinary legal authority; under Trump v. Barbara and United States v. Wong Kim Ark, they are citizens at birth. Second are persons born in the United States but falling within traditional exceptions, such as children of foreign diplomats; Trump v. Barbara leaves those exceptions intact. Third are persons born abroad who claim citizenship through a citizen parent; those claims remain governed largely by statute and by decisions such as Rogers v. Bellei. Keeping these categories separate prevents the dissenting concern about statutory citizenship abroad from distorting the constitutional rule for birth on United States soil.

C. Suggested reading

To read the case: Supreme Court of the United States, Trump v. Barbara, 609 U.S. ___ (2026)

Case law:

Start with Trump v. Barbara itself, especially the syllabus, the majority opinion, Justice Jackson’s concurrence, Justice Kavanaugh’s partial concurrence, and the Thomas, Alito, and Gorsuch dissents. Read it together with Trump v. CASA to understand the shift from universal injunctions to classwide relief and the role of Federal Rule of Civil Procedure 23 in national public-law litigation.

For the historical foundation of birthright citizenship, read Dred Scott v. Sandford, The Slaughter-House Cases, Elk v. Wilkins, and United States v. Wong Kim Ark in that order. This sequence shows how the Court moved from exclusionary constitutional citizenship, to Reconstruction citizenship, to contested limits on tribal membership, and finally to the canonical territorial-birth rule for children of noncitizen parents.

For the relationship between immigration status and constitutional personhood, read Yick Wo v. Hopkins, Plyler v. Doe, Nishimura Ekiu v. United States, The Chinese Exclusion Case, and Zadvydas v. Davis. These cases reveal the tension between broad federal immigration power and the proposition that persons physically present in the United States are subject to, and protected by, domestic law.

For the constitutional status of citizenship once acquired, read Trop v. Dulles, Afroyim v. Rusk, and Rogers v. Bellei. These cases help distinguish three questions that Trump v. Barbara keeps separate: citizenship by birth in the United States, citizenship acquired by statute for persons born abroad, and the government’s limited power to divest citizenship once it exists.

Doctrine:

• Epps, Garrett. “The Citizenship Clause: A Legislative History.” American University Law Review 60, no. 2 (2010): 331.
• Rodríguez, Cristina M. “The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment.” University of Pennsylvania Journal of Constitutional Law 11, no. 5 (2009): 1363.
• Ho, James C. “Birthright Citizenship, the Fourteenth Amendment, and State Authority.” University of Richmond Law Review 42, no. 4 (2008): 969.
• Ing, Matthew. “Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause.” Akron Law Review 45, no. 3 (2012): 719.
• Foner, Eric. The Second Founding: How the Civil War and Reconstruction Remade the Constitution. New York: W. W. Norton & Company, 2019.
• Wurman, Ilan. The Second Founding: An Introduction to the Fourteenth Amendment. Cambridge: Cambridge University Press, 2020.
• Charles, Patrick J. “Decoding the Fourteenth Amendment’s Citizenship Clause: Unlawful Immigrants, Allegiance, Personal Subjection, and the Law.” Washburn Law Journal 51, no. 2 (2012): 211.
• Mensel, Robert E. “Jurisdiction in Nineteenth Century International Law and Its Meaning in the Citizenship Clause of the Fourteenth Amendment.” Saint Louis University Public Law Review 32, no. 2 (2013): 329.
• Fox, James W. “Fourteenth Amendment Citizenship and the Reconstruction-Era Black Public Sphere.” Akron Law Review 42, no. 4 (2009): 1245.
• Glass, Maeve. “Citizens of the State.” University of Chicago Law Review 85, no. 4 (2018): 865.
• Balkin, Jack M., and Reva B. Siegel. “The American Civil Rights Tradition: Anticlassification or Antisubordination?” University of Miami Law Review 58, no. 1 (2003): 9–33.
• Sunstein, Cass R. “Affirmative Action, Caste, and Cultural Comparisons.” Michigan Law Review 97, no. 5 (1999): 1311.

To cite this contribution: Jack R. Mangala, “The Constitutionalization of jus soli in the fight to define birthright citizenship in the United States”, Cahiers de l’EDEM, September 2026.