Blue Brief 2025-2026

argued that the Citizenship Clause’s “subject to the jurisdiction” language should be read to require that a U.S.-born child’s parents have a domicile (residence) in the United States. This reading would exclude the children of lawful temporary visitors, though perhaps not children of undocumented parents who had lived in the United States for a long time (a point Justice Gorsuch emphasized in a separate dissent). Justice Alito , writing only for himself, adopted a different view of “subject to the jurisdiction”: he would read it to include only persons with primary allegiance to the United States. That reading would appear to exclude both temporary visitors and persons not lawfully present in the United States, thus validating both principal parts of the executive order. A notable feature of the decision is the division among the originalist-oriented Republican appointed Justices. The six justices in this group adopted three (or perhaps four, depending on how one characterizes Justice Kavanaugh’s opinion) different readings of the determinative constitutional text. Prior to the executive order and the Barbara litigation, it had been widely assumed that textualism and originalism favored a broad reading of the Citizenship Clause, and the challenges to the executive order relied heavily on the clause’s original meaning. Yet even with an originalist-oriented majority on the Court, the decision was surprisingly close and failed to generate an originalist consensus. In part, this divergence may have arisen from different methodological approaches to originalism. Chief Justice Roberts’s majority opinion relied on the constitutional text: “subject to the jurisdiction,” he emphasized, meant (as it means today) under sovereign authority. That would include children of

temporary visitors (other than diplomats) and of persons not lawfully present, who are undoubtedly still subject to U.S. laws and law enforcement while they are in the United States. Roberts further emphasized that this reading of the clause was consistent with its context in longstanding common law, going far back into prerevolution English law.

A notable feature of the decision is the division among the originalist oriented Republican appointed Justices.

The dissenters, in contrast, argued that the principal purpose of the Citizenship Clause was to guarantee U.S. citizenship to freed slaves and other Americans of African ancestry, overturning the infamous Dred Scott case. The clause’s nineteenth-century drafters and ratifiers could not have foreseen mass unlawful immigration or deliberate temporary journeys to the United States for the purposes of giving birth. Thus, they argued, the clause should be read more narrowly to avoid going beyond the scope its enactors would have envisioned. That approach seems to reflect a less textualist and more intent-based form of originalism.

Looking to the future, the majority decision establishes a broad constitutional citizenship

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 27