The Easiest Way to Resolve the Birthright Citizenship Case

Last week the Supreme Court heard oral argument in United States v. Barbara, the case challenging the lawfulness of President Trump’s anti-birthright-citizenship Executive Order.

I summarize some of my initial thoughts in today’s Civitas Outlook column. In that piece, I also explain how the Court can resolve the case without resolving the underlying constitutional questions. Whatever the precise limits the exceptions to birthright citizenship under Section One of the Fourteenth Amendment, it is particularly hard to argue that the EO is consistent with federal law, as it has been understood, applied, and enforced for the past seventy-five years, and even harder to argue that the President, acting unilaterally, can rewrite the law of citizenship by executive decree.

From the piece:

The easiest way for the Court to reject the Administration’s position does not require reaching the underlying constitutional question, however. Under 8 U.S.C. §1401, any “person born in the United States, and subject to the jurisdiction thereof,” is a citizen of the United States. When enacted in 1940 and again in 1952, this language was understood to adopt the conventional understanding of birthright citizenship and “every statute’s meaning is fixed at the time of enactment,” as the Court reaffirmed in Loper Bright Enterprises v. Raimando (2024). Throughout World War II, children born to Japanese citizens were recognized as citizens, even as their parents were considered enemy aliens. This conflicts with the Trump Administration’s emphasis on “allegiance.”

For decades, all three branches have consistently interpreted Section 1401 to embody the conventional understanding of birthright citizenship. The U.S. Reports are filled with Supreme Court decisions that simply assume that all born in the United States are citizens, without regard to their parentage. Accordingly, that interpretation should be entitled to statutory state decisis even if one believes the conventional account is wrong. Thus, the Court could simply hold that the Trump EO conflicts with federal law and leave it to another day whether Congress could enact a law withdrawing jurisdiction over illegal aliens or temporary visitors. After all, the Constitution entrusts Congress with the power to make laws concerning naturalization and to enforce the Fourteenth Amendment. Such enactments cannot be adopted by executive fiat. . . .

An obvious question for the SG was what upholding the EO would mean for those in the country who cannot trace their lineage back to a lawful permanent resident. Pressed on the point, Sauer stressed that the Administration was only asking for prospective relief. That may be, but it is no answer to the constitutional question. If the reason for the EO’s validity is that only children of citizens and lawful permanent residents are birthright citizens under the Constitution, a ruling in favor of the government would cast a pall over millions of Americans whose citizenship has long been taken for granted. Sauer’s pledge that the Administration would not pursue such claims is cold comfort, as legal questions about the citizenship of such people would inevitably arise (as would questions about how to determine “domicile”—as Justice Amy Coney Barrett noted at the oral argument).

I have long maintained that Congress may well retain some power to adjust the contours of birthright citizenship by defining the bounds of the jurisdiction of the United States, pursuant its power under Section 5 of the Fourteenth Amendment. But Congress has not exercised this power. To the contrary, Congress has reified the prevailing understanding of birthright citizenship. This makes the resolution of Barbara quite easy. We will see how many of the justices agree.