Blue Brief 2025-2026

Michael Ramsey

Warren Distinguished Professor of Law

Trump v. Barbara and Constitutional

Birthright Citizenship VIII.

I n Trump v. Barbara , a 5-4 majority of the Supreme Court found that President Trump’s executive order , purporting to limit birthright U.S. citizenship to the children of U.S. citizens and lawful permanent residents, violated the Fourteenth Amendment’s Citizenship Clause. Multiple lower courts had held the executive order unconstitutional, and in the Barbara case, the Supreme Court agreed. The Citizenship Clause declares that “[a]ll 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.” Chief Justice Roberts, writing for himself and Justices Sotomayor, Kagan, Barrett, and Jackson, concluded that this language guarantees citizenship to everyone born in the United States except for those whose parents are not under U.S. sovereign authority (such as ambassadors and others with diplomatic immunity from U.S. law). He rejected narrower versions of the “subject to the

jurisdiction thereof” requirement advanced by the dissenters and the Trump administration, which would have excluded from citizenship the U.S.-born children of temporary visitors and persons not lawfully present in the United States. Justice Kavanaugh concurred in the judgment in part and dissented in part. He would have found the executive order contrary to 8 U.S.C. § 1401(a) — a provision of the Immigration and Nationality Act with language substantially equivalent to the Fourteenth Amendment’s Citizenship Clause. In his view, Congress intended § 1401(a) to have a broad scope, contrary to the executive order. But he went on to argue that the Citizenship Clause did not require that broad scope, so Congress (but not the President alone) could adopt a narrower approach to birthright citizenship.

Justices Thomas, Alito, and Gorsuch dissented. Justice Thomas, joined by Justice Gorsuch ,

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 26