Born on the Soil: Originalism, Executive Power, and the Constitutional Limits of Trump v. Barbara

The Fourteenth Amendment declares: 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.

I. Introduction

Ratified in 1868 to repudiate the Supreme Court’s decision in Dred Scott v. Sandford— that persons of African descent could not be federal citizens—the Citizenship Clause established the principle of birth within the sovereign's territory confers membership. Thirty years after ratification, in United States v. Wong Kim Ark, the Supreme Court held that the American-born son of Chinese immigrants permanently domiciled in California was a citizen by birth; confirming that the clause applied without regard to race. For over a century, this rule has been treated as settled. 

On January 20, 2025, President Donald Trump signed Executive Order 14,160, directing federal agencies to deny birthright citizenship to children born to mothers who are unlawfully present or lawfully but temporarily present—in both cases where the father is not a citizen nor a lawful permanent resident. Federal courts blocked the decision in days. The Supreme Court granted certiorari—its discretionary power to review a lower court’s decision—before judgement in Trump v. Barbara, and scheduled argument for April 1, 2026. The question before the Court is whether the order is consistent with the Citizenship Clause of the Fourteenth Amendment and with the Immigration and Nationality Act of 1952, which codified the clause. 

The administration’s argument that “subject to the jurisdiction thereof” excludes children of undocumented or temporary (visa-holding) parents defies the text of the Amendment, the precedent established in Wong Kim Ark, and the statutory of the INA Act of 1952. The administration and its academic supporters claim to be following the original meaning of the Constitution, but their argument is not truly originalist. Originalism means interpreting the Constitution as its framers intended. Yet the administration replaces the historically accepted view, that citizenship follows birth on U.S. soil, with a newer revisionist theory that qualifies citizenship by a parent’s allegiance to the United States. If the court sides with the administration and departs from the territorial understanding held by the Clause’s framers, early interpreters, and traditional common law, it would not simply settle a legal debate. It would enable the creation of a permanent class of people born in the U.S. who are not citizens, the very outcome the Fourteenth Amendment was designed to prevent. 

II. The Clause: Text, History, and Precedent 

Professor Gerald Neuman of Harvard Law School describes the administration’s reading of “subject to the jurisdiction thereof” as a “dishonest interpretation of the Constitution.” Neuman further characterized the executive order as “doubly unlawful,” invalid under both the Amendment and the IMA of 1952. These assertions track the historical record. Senator Lyman Trumbull—chair of the Senate Judiciary Committee and one of many key architects in the Citizenship Clause—explained that the phrase “refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.” This jurisdictional proviso, argued before the Senate, was inserted to exclude two well-understood categories: children of foreign diplomats, who enjoy immunity from U.S. law, and members of Native American tribes governed under quasi-sovereign treaty arrangements. Undocumented immigrants and temporary visa holders fit neither description as they are subject to American law (they can be arrested, prosecuted, and/or deported) essentially because U.S. jurisdiction reaches them.

NYU Law Professor Christopher Eisgruber has argued that the Citizenship Clause implements what he terms the “responsiveness principle” in which a government should be responsive to the interests of those subject to its general jurisdiction. The principle underscores that children born on U.S. soil to parents subject to U.S. law are members of the political community whose laws will govern their lives. Therefore, a rule that denies them citizenship based on their parents’ visa status directly inverts the principle by subjecting them to American law, while withholding the membership that law is supposed to carry.

Wong Kim Ark resolved the interpretation of the question definitively. The Court held that the Clause “in clear words and in manifest intent, includes the children born within the territory of the United States…of whatever race or color, domiciled within the United States.” Now, the administration argues the definitiveness because Wong’s parents were in fact lawful permanent residents. However, the Citizenship Clause draws no distinction based on parental legal status, speaking of persons born “in the United States, and subject to the jurisdiction thereof.” The diplomatic immunity exemption confirms how narrow the proviso was understood—it reaches those beyond the reach of American law, not ordinary immigrants whose daily lives are fully regulated by that law. 

University legal scholars have shown that the English common law tradition informing the framers of the clause understood subjectship as territorial, independent of parental allegiance. Under such tradition, birth within the sovereign’s jurisdiction conferred subjectship regardless of parent nationality or status. The framers knew and codified the tradition. The alternative—conditioning citizenship on parental immigration status—has no foundation in such history. 

A recent Cornell Law Review article characterized the methodological flaws of the administration in detail. They argued that the administration’s effort to read jurisdiction as allegiance is ahistorical and revisionist, and relies on select sources while ignoring the essential meaning the clause envisioned. Furthermore, while two prominent originalist professors argued in the New York Times that the administration may have a case on this reading, the consent-based argument had been advanced decades earlier, was widely rejected by academics, and was taken up principally by John Eastman (later a contributor of the legal theory of the January 6th insurrection).  

III. The Statutory Ground of The Immigration and Nationality Act of 1952

Independent of the constitution, the executive order is invalid as it conflicts with federal statute. The Immigration and Nationality Act of 1952 (INA) asserts that persons “born in the United States, and subject to the jurisdiction thereof” are national and citizens at birth. The statutory language clearly mirrors that of the Citizenship Clause. The administration posits that the two must mean the same thing, and therefore if its constitutional reading is correct, the statute falls in line automatically. 

Chief Justice Roberts wrote in Loper Bright Enterprises v. Raimondo (2024) that “every statute’s meaning is fixed at the time of enactment.” As such, whatever ambiguity might exist in the constitutional language, the legislative record, judicial decisions, and decades of executive practice all confirm the understanding of § 1401(a) of the INA to guarantee birthright citizenship broadly. The administration’s position is erred. 

At oral argument, the Solicitor General John Sauer acknowledged that Congress may “confer citizenship at birth upon various categories of persons who are not guaranteed citizenship under the 14th Amendment.” Thus, statutory and constitutional citizenship are not coextensive—the statute cannot be read with the executive’s preferred interpretation. The Court, under the doctrine of constitutional avoidance, should not decide a constitutional issue when the case can be decided on statutory grounds.

If the Court does rule against the administration based on the Act, it leaves the constitutional question unanswered—perhaps even after Congress has attempted to amend the statute. However, such legislation has been introduced without success in nearly every Congress since 1995. In 1995, the Clinton administration told Congress flatly that a birthright citizenship restriction bill was “unquestionably unconstitutional,” presenting not a difficult or even close question. That position reflected the settled consensus, and the weight of authority has not since shifted.

IV. The McKinley Template as a Cautionary Tale

As noted, the Trump administration is not the first executive to attempt a redefining of the Citizenship Clause. Following the Spanish-American War, the McKinley administration faced a dilemma. The understanding—reflected by floor debates and Supreme Court decisions—was that the Citizenship Clause applied to those born in U.S. states and extendedly, in U.S. territories. This created a constitutional problem for an administration wanting to govern Puerto Rico, Guam, and the Philippines as colonial territories conferring automatic U.S. citizenship. 

McKinley’s Secretary of War conceived a solution through the Bureau of Insular Affairs: a series of departmental memoranda redefining the phrase “in the United States” to exclude the new island territories. Even though the U.S. exercised exclusive sovereignty and jurisdiction over them, the department argued that while those born in the territories owed allegiance to the government, they were not “member[s] of the civil state, entitled to all its privileges.” In this sense, they were American colonial subjects, not citizens. When this position reached the Supreme Court in the insular cases, the justices largely acquiesced, issuing fractured and deeply troubling opinions that allowed the governance of millions as colonial subjects.

The enduring impact is evident in individuals born in American Samoa, classified as “non-citizen U.S. nationals.” In effect, they remain citizens of nowhere due to the uncorrected foundational error of the insular cases. The parallel to Trump v. Barbara is striking. Both administrations seek to redefine the language of the clause in an effort to exclude an unwanted population, without constitutional amendment and regard to settled precedent. The lasting error of the insular cases demonstrates the consequence of judicial deference to the executive—and one the court should not repeat.

V. The Stakes of Trump v. Barbara

Researchers at the Migration Policy Institute and Penn State’s Population Research Institute have estimated the demographic consequences of ending birthright citizenship for the children of unauthorized immigrants or temporary visa holders. The effects are disconcerting: the unauthorized population would be 2.7 million larger by 2045 and 5.4 million larger by 2075 (approximately 40 percent higher than under the current projections), with a yearly average of 255,000 children born on U.S. soil starting life without citizenship.

More troubling is what they describe as the creation of a self-perpetuating underclass. Researchers estimate, by 2075, 1.7 million U.S.-born individuals would lack citizenship or legal status despite being children of parents who were themselves born in the United States. Countries without birthright citizenship see multigenerational groups without full political membership or even cases of outright statelessness, effectively excluding individuals from civil life. This is precisely the hereditary underclass the Fourteenth Amendment was intended to prevent. The framers had watched Dred Scott produce a class of persons born under American sovereignty, living under and abiding by American law, but denied complete membership granted by sovereignty and law. 

More than two decades ago, Professor Christopher Eusgruber cautioned that departing from the tradition of birthplace citizenship would “affect the interpretation of other constitutional provisions by compromising the Constitution's commitment to political justice.” The Fourteenth Amendments Clauses of Equal Protection, Due Process, and Privileges or Immunities, form an expansive whole with the Citizenship Clause. A court permitting the executive order to redefine the terms of constitutional citizenship signals the other provisions are similarly negotiable. An invitation like this, future administrations would not be slow to openly challenge.  

VI. Conclusion

Trump v. Barbara presents the Supreme Court with a straightforward question detailed by unnecessary complexities. President Trump’s executive order is fundamentally inconsistent with the constitutional rights of the Fourteenth Amendment, with Wong Kim Ark, the Immigration and Nationality Act of 1952, and with over a century of congressional and executive practice. The administration’s originalist framing relies on selective revisionist views—ones repeatedly and correctly rejected by legal scholarship. The consequences would create exactly the hereditary, stateless underclass the Fourteenth Amendment was ratified and amended to prevent. 

The McKinley administration’s redefinition of the Citizenship Clause in response to the Spanish-American War stands as the most cautionary historical precedent. The consequences of deferring to the political branches on the meaning of citizenship in the insular cases endured for generations and remain uncorrected to date. 

As the Court faces the same choice, the better proper judgement requires no reserve. The Court should affirm the injunctions blocking Executive Order 14,160, hold the order in violation of 8 U.S.C. § 1401(a), and reaffirm the understanding of the Fourteenth Amendment’s Citizenship Clause. The Constitution must protect American citizenship for children born on American soil, to parents subject to American law, regardless of parental visa status.

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[1] Herd, Pamela, et al. “Introduction: Administrative Burden as a Mechanism of Inequality in Policy Implementation.” RSF: The Russell Sage Foundation Journal of the Social Sciences, 1 Sept. 2023, www.rsfjournal.org/content/9/5/1#sec-9.

[2]Ibid.

[3] Rosenbloom, Cara. “How Understanding Your Grocery Store’s Layout Can Save You Money.” GoodRx, 15 July 2024, www.goodrx.com/well-being/diet-nutrition/grocery-store-layout.

[4] Earley, Seth. “Physical to Digital – How the Grocery Sector Is Poised for Transformation.” Information Architecture Consulting & Services, Earley Information Science, 20 May 2021, www.earley.com/insights/physical-digital-how-grocery-sector-poised-transformation#:~:text=From%20the%20grocer%27s%20viewpoint%2C%20online,experience%20that%20allows%20for%20spontaneity.

[5] Hertel-Fernandez, Alexander. “Measuring Psychological Burdens in Access to U.S. Social Programs.” Equitable Growth, 6 May 2024, equitablegrowth.org/research-paper/measuring-psychological-burdens-in-access-to-u-s-social-programs/.

[6]Ibid.

[7] Vuppuluri, Sri. “Mobile Solutions for Public Assistance Eligibility: Enhancing Accessibility and Efficiency.” International Journal for Multidisciplinary Research (IJFMR), Dec. 2024, www.ijfmr.com/papers/2024/6/34262.pdf.

[8]Ibid.

[9]Ibid.

[10] Levitt L, Altman D. Complexity in the US Health Care System Is the Enemy of Access and Affordability. JAMA Health Forum. 2023;4(10):e234430. doi:10.1001/jamahealthforum.2023.4430

[11]Ibid.

[12] “OECD Good Practice Principles for Public Service Design and Delivery in the Digital Age.” Organisation for Economic Co-Operation and Development (OECD), 2022, www.oecd.org/en/publications/2022/11/oecd-good-practice-principles-for-public-service-design-and-delivery-in-the-digital-age_f3845ec3.html.

[13]The Organisation for Economic Co-Operation and Development (OECD), 2026, www.oecd.org/en.html.

[14] “United States | OECD.” Organisation for Economic Co-Operation and Development (OECD), 2026, www.oecd.org/en/countries/united-states.html.

[15] “OECD Good Practice Principles for Public Service Design and Delivery in the Digital Age.” Organisation for Economic Co-Operation and Development (OECD), 2022, www.oecd.org/en/publications/2022/11/oecd-good-practice-principles-for-public-service-design-and-delivery-in-the-digital-age_f3845ec3.html.