Birthright Citizenship Under Challenge: Executive Power Meets Constitutional Text

Introduction

On January 20, 2025, President Trump signed Executive Order 14160, attempting to end automatic citizenship for children born in the United States to parents without lawful immigration status. Within weeks, federal courts across the country issued preliminary injunctions blocking enforcement, with judges describing the order as a flagrant violation of the Fourteenth Amendment. Now, with the Supreme Court set to hear arguments this spring of 2026 in Barbara v. Trump, the nation faces its most consequential citizenship dispute in over a century. At stake is not merely the status of children born to unauthorized migrants, but fundamental questions about presidential power, the durability of constitutional precedent, and the very meaning of American national belonging. Can an executive order override constitutional text and 127 years of settled Supreme Court interpretation? The answer will reverberate far beyond immigration policy, potentially reshaping the boundaries of executive authority and the stability of constitutional rights long considered beyond political revision.

History of U.S. birthright citizenship

The Fourteenth Amendment, adopted in 1868, provides that all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and of the state where they reside, and was understood to overturn Dred Scott v. Sandford and secure citizenship for formerly enslaved people and others born on U.S. soil. Since the late 19th century, with narrow exceptions (children of foreign diplomats, enemy occupiers, etc.), the United States has generally followed a broad jus soli (“right of soil”) approach: virtually everyone born in the territory is a citizen at birth, regardless of parental status.​ This approach contrasts with jus sanguinis (“right of blood”), where citizenship is inherited from parents. 

United States v. Wong Kim Ark

Wong Kim Ark’s case began as a federal habeas corpus proceeding in San Francisco and then went up directly to the U.S. Supreme Court on appeal by the federal government.​ 

After Wong, a San Francisco–born man of Chinese immigrant parents, was denied re‑entry at the Port of San Francisco under the Chinese Exclusion laws, his lawyers filed a petition for a writ of habeas corpus in the U.S. District Court for the Northern District of California. The district judge (Judge Morrow) treated the matter as a “test case,” relied heavily on an earlier Ninth Circuit decision (Look Tin Sing), and on January 3, 1896, held that Wong was a U.S. citizen by birth and ordered him released and admitted.

Because this was a federal case turning on the meaning of the Fourteenth Amendment, the United States, through the local U.S. Attorney and the Department of Justice, appealed the district court’s judgment directly to the Supreme Court, rather than going through an intermediate appellate court. The government apparently timed its appeal with an eye on national politics, recognizing that the decision would affect not only Chinese Americans but all U.S.‑born children of alien parents.

The Supreme Court heard oral argument on March 5, 1897, with the Solicitor General arguing for the United States and a team of private counsel representing Wong. On March 28, 1898, the Court issued a 6–2 decision affirming the district court, holding that Wong was a citizen from birth under the Fourteenth Amendment and rejecting the government’s attempt to limit birthright citizenship based on his parents’ foreign nationality and ineligibility to naturalize. The Court grounded this in English common‑law jus soli principles and read “subject to the jurisdiction” to encompass nearly all persons born on U.S. soil who are not in an exempt category, such as foreign diplomats or hostile occupying forces. This approach contrasts with jus sanguinis, where citizenship is inherited from parents.

Competing readings of the Citizenship Clause

Legal debate over the Citizenship Clause focuses on the meaning of “subject to the jurisdiction,” with some viewing it as almost coextensive with territorial presence and others arguing it requires more complete allegiance than mere physical presence. This debate has intensified with modern disputes over children of unauthorized migrants and other noncitizens, setting the stage for measures like Trump’s 2025 Executive Order.

Majority opinion in Wong Kim Ark

The Wong Kim Ark majority treated the Fourteenth Amendment as constitutionalizing the broad common‑law rule that birth within sovereign territory generally confers citizenship, regardless of parents’ nationality, so long as the parents are subject to the country’s laws and not in a traditionally exempt class. The opinion reads the opening sentence of the Fourteenth Amendment as an affirmative guarantee intended to settle doubts after Dred Scott v. Sandford, not as a vehicle for inserting new exclusions based on the race, nationality, or naturalizability of parents.

On text, the Court focused on the fact that the Clause covers “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” and then asked who is not “subject to the jurisdiction.” It concluded that, in light of English common‑law and early American practice, that phrase captured virtually everyone present within U.S. sovereign territory, with only narrow, historically recognized exceptions such as children of foreign sovereigns, foreign diplomats, enemy occupiers, and (in the Court’s view at the time) certain tribal Indians. The opinion writes, “No one doubts that the Amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been...” Being born to alien parents, even parents barred from naturalization by the Chinese Exclusion Acts, did not fit any of those traditional exceptions, so the Court held that such a child falls within the Amendment’s plain coverage and becomes a citizen at birth by force of the Constitution itself.

The two dissents in Wong Kim Ark

Chief Justice Fuller’s dissent, joined by Justice Harlan, argued that “subject to the jurisdiction” required complete political allegiance and not being subject to any foreign power, implying that children who inherit foreign citizenship by descent might fall outside the Clause. The dissent contended that U.S. practice after independence leaned more on jus sanguinis, viewing citizenship by descent as more consistent with American sovereignty and treaties, and warned that broad jus soli would make even the children of transient foreign royalty eligible for the presidency.

Constitutionality of Trump’s Executive Order

Executive Order 14160 denies automatic U.S. citizenship to persons born in the United States if, at birth, the mother is unlawfully present and the father is neither a U.S. citizen nor lawful permanent resident, and it directs federal agencies not to issue or honor citizenship documents for such individuals. Several federal district courts quickly enjoined enforcement of major parts of the order, with multiple states and advocacy groups arguing that the EO contradicts the Fourteenth Amendment and Supreme Court precedent by conditioning jus soli citizenship on parental status that the Constitution does not recognize.​

Under Wong Kim Ark and later cases like Plyler v. Doe, lower courts have generally read "subject to the jurisdiction" to include virtually all non-exempt aliens, including those present unlawfully, meaning their U.S.-born children are presumptively citizens at birth. Multiple district court judges reached similar conclusions when evaluating the executive order: On August 7, in CASA v. Trump, Judge Deborah Boardman certified a class of all children born after February 19, 2025, who would be covered by the order and temporarily barred enforcement against them, writing that "the plaintiffs are extremely likely to succeed on the merits of their claims that the Executive Order is unconstitutional." Judge Joseph Laplante issued a comparable preliminary injunction on July 10 in Barbara v. Trump, concluding "that the Executive Order likely 'contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.'" Judge Leo Sorokin in New Jersey v. Trump went further on July 25, maintaining that a nationwide injunction remained "necessary to provide" the challenging states with "complete relief," citing "the flagrancy with which the Executive Order contravenes both the Constitution and a federal statute." On July 23, a divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed this view, ruling that the executive order "is invalid because it contradicts the plain language of the Fourteenth Amendment's grant of citizenship to 'all persons born in the United States and subject to the jurisdiction thereof.'"

Because an executive order cannot amend constitutional text or overrule Supreme Court precedent, opponents argue that the President lacks authority to redefine the Citizenship Clause by directing agencies to withhold recognition of citizenship that the Constitution itself confers. The Trump administration has taken a starkly different position, with U.S. Solicitor General D. John Sauer asserting in filings to the Supreme Court that "the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences." On December 5, the court agreed to review the Trump administration’s petition in the Barbara case; however, the court gave no indication that it plans to expedite the Barbara case. As a result, oral arguments will probably be heard in the spring of 2026, with a decision issued in late June or early July.

Broader Significance 

Constitutional Governance and Separation of Powers

The birthright citizenship controversy raises fundamental questions about the balance of power among the branches of government. At its core, the dispute tests whether a President may use executive action to reinterpret constitutional provisions that courts have already construed, or whether such changes require either judicial reversal of precedent or constitutional amendment through Article V. The immediate question concerns citizenship, but the implications extend to presidential authority more broadly. If an administration can direct agencies to ignore what courts have determined the Constitution requires, based on the executive's competing interpretation, the practical supremacy of judicial review itself comes into tension with coordinate branch interpretation of the Constitution.

This dynamic implicates enduring debates about constitutional interpretation. Some scholars argue that all three branches possess independent authority to interpret the Constitution, while others maintain that the judiciary's interpretations, particularly from the Supreme Court, bind the executive branch in implementation. The birthright citizenship executive order effectively asserts that Wong Kim Ark was wrongly decided and that the executive branch need not follow it while the case remains formally unreversed, a position that challenges conventional understandings of stare decisis and the finality of Supreme Court constitutional rulings.

National Identity and Belonging

Beyond legal mechanics, birthright citizenship profoundly shapes American national identity. The United States has maintained jus soli citizenship for over 150 years, creating generations of families who entered citizenship through birth rather than ancestry. This approach has distinguished the American conception of nationality from many other nations, where citizenship typically flows through bloodlines. The policy embodies a civic rather than ethnic definition of national membership, one where allegiance to American constitutional principles matters more than inherited identity.

Restricting birthright citizenship would fundamentally alter this understanding. It would create a class of persons born on American soil who possess no citizenship, potentially for generations if their parents and grandparents also lack legal status. Such individuals would live in a permanent liminal status, present in American society but formally outside the polity. Historical experiences with statelessness internationally demonstrate the humanitarian and practical challenges such populations face, from educational barriers to employment restrictions to vulnerability to arbitrary detention or deportation to countries they have never known.

Precedent and Constitutional Stability

The dispute also raises questions about the durability of constitutional precedent. Wong Kim Ark has stood for over 125 years without direct Supreme Court contradiction. While courts may revisit prior decisions, the deliberate overturning of such long-standing precedent through executive action rather than judicial reconsideration represents a departure from traditional methods of constitutional change. This approach raises concerns about constitutional stability and predictability, as it suggests that fundamental rights and statuses recognized for generations might be subject to revision through administrative directive rather than the more deliberative processes of litigation, legislation, or amendment.

Some observers see this as part of a broader pattern where political actors increasingly treat constitutional questions as matters of partisan contestation rather than settled law, potentially undermining public confidence in constitutional governance. Others argue that erroneous precedents should not persist merely because they are old, and that political branches have both the right and responsibility to advocate for constitutional interpretations they believe correct, even when those interpretations conflict with judicial holdings.

The Path Forward

Whatever the Supreme Court ultimately decides, the birthright citizenship controversy will likely continue to shape American political and legal discourse. The fundamental tensions it reveals, between executive authority and judicial precedent, between expansive and restrictive visions of national community, between enforcement of immigration law and humanitarian concerns about children, persist regardless of any single case's outcome. The debate reflects deeper questions about what kind of nation America, a country founded on immigration itself, aspires to be and how it will navigate the challenges of citizenship and belonging in an era of global migration.