{"database": "openregs", "table": "crs_reports", "rows": [["LSB11423", "Trump v. Barbara: Supreme Court Considers Birthright Citizenship", "2026-04-29T04:00:00Z", "2026-04-30T15:01:35Z", "Active", "Posts", "Hannah Solomon-Strauss", "Executive Branch, Civil Rights & Liberties, Immigration & Nationality Act (INA), The Supreme Court of the United States, Immigration, Permanent Immigration", "On April 1, 2026, the Supreme Court heard oral arguments in Trump v. Barbara. The question before the Court was whether Executive Order 14160 (E.O. 14160, or the E.O.), \u201cProtecting the Meaning and Value of American Citizenship,\u201d is constitutional under the Fourteenth Amendment\u2019s Citizenship Clause and authorized by 8 U.S.C. \u00a7 1401(a), a provision of the Immigration and Nationality Act (INA) that codifies the Citizenship Clause. This Legal Sidebar provides a brief overview of the arguments made by the parties in this litigation and a summary of the oral argument. For further information on E.O. 14160 and earlier stages of the litigation, see CRS Legal Sidebar LSB11414, Birthright Citizenship: Litigation Status Update, by Hannah Solomon-Strauss and Juria L. Jones (2026). \nThe Citizenship Clause and Executive Order 14160\nThe Citizenship Clause of the Fourteenth Amendment reads, \u201cAll 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.\u201d The clause has been interpreted only sparingly by the Supreme Court since the Fourteenth Amendment\u2019s ratification in 1868. In those cases, the Court has interpreted the clause to mean that every child born in the United States is a citizen at birth, regardless of their parents\u2019 alienage.  \nOn January 20, 2025, President Trump signed E.O. 14160. The E.O. seeks to interpret \u201csubject to the jurisdiction thereof\u201d in the Citizenship Clause to limit who may be considered a U.S. citizen from birth. \nThe E.O. states: \u201cIt is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons\u201d whom the executive branch believes are not granted citizenship under the Fourteenth Amendment solely by being born in the United States. \nThe E.O. outlines two categories of persons that, in the view of the executive branch, are not \u201csubject to the jurisdiction\u201d of the United States and therefore are excluded from the Fourteenth Amendment\u2019s grant of birthright citizenship: (1) a child whose mother was not lawfully present in the United States, and whose father was not a U.S. citizen or lawful permanent resident, at the moment the child was born; and (2) a child whose mother was lawfully but temporarily in the United States, and whose father was not a U.S. citizen or lawful permanent resident, at the moment the child was born. The E.O. asserts that children born in the United States to parents in either of these categories are not \u201csubject to the jurisdiction\u201d of the United States within the meaning of the Fourteenth Amendment. The E.O. directs the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security to \u201ctake all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order.\u201d  \nTrump v. Barbara at the Supreme Court\nThe question before the Court in Trump v. Barbara is whether the E.O. is constitutional\u2014because the Citizenship Clause permits such a definition of birthright citizenship\u2014and whether it is authorized by the INA, in which Congress codified the Citizenship Clause. During oral argument held on April 1, 2026, several key themes emerged from the Justices\u2019 questions. \nCase Law and Precedent\nBoth plaintiffs and the executive branch argued that one of the Supreme Court\u2019s prior cases on the Citizenship Clause supported their arguments, and that the Court should follow that precedent to rule in their favor. \nThis prior case, United States v. Wong Kim Ark, is about the citizenship of a man born in the United States to parents who had emigrated from China. Wong Kim Ark\u2019s parents came to the United States and lived in San Francisco for more than twenty years, during which time Wong Kim Ark was born. At the time, the Chinese Exclusion Act barred Wong Kim Ark\u2019s parents from becoming citizens. They lived lawfully in the United States, but were ineligible to naturalize: they were, as the Court explains, \u201csubjects of the Emperor of China.\u201d In 1890, they returned to China. Several years later, Wong Kim Ark visited his parents in China and, on his return to the United States, was barred at the border. He argued he was a birthright citizen because he was born on U.S. soil even though his parents were not U.S. citizens. As a citizen, he argued, he could not be excluded from the country. The Supreme Court agreed, holding that the Citizenship Clause meant Wong Kim Ark was a birthright citizen notwithstanding that his parents were not citizens, and were ineligible to become citizens, when he was born. \nThe plaintiffs argue that Wong Kim Ark controls Barbara, and that the earlier case holds that the Citizenship Clause grants birthright citizenship to every child born on U.S. soil not subject to rare exceptions. In fact, before the Supreme Court agreed to hear this case, plaintiffs argued the Court should decline to do so, because \u201cit has already answered the constitutional question\u201d that Barbara poses, in Wong Kim Ark. At oral argument, the plaintiffs continued to press their case that Barbara is resolved by consulting Wong Kim Ark\u2019s holding.\nThe Solicitor General, arguing for the Trump Administration in defense of the E.O., agreed that Wong Kim Ark controls Barbara, but disagreed with plaintiffs\u2019 reading of the precedent. The executive branch argued the fact that Wong Kim Ark\u2019s parents were lawfully in San Francisco for twenty years\u2014during which time Wong Kim Ark was born\u2014indicates they were \u201cdomiciled\u201d in the United States even though they could not naturalize, and that this mattered to the 1898 decision. The government argued that the Court\u2019s repetition of, and focus on, \u201cdomicile\u201d in Wong Kim Ark suggests this was central to the Court\u2019s reasoning. Accordingly, the Trump Administration argued, the Court in Barbara should apply this \u201cdomicile\u201d analysis to the Citizenship Clause. In response to a question from Justice Sotomayor, the Solicitor General said the executive branch was not asking the Supreme Court to overrule Wong Kim Ark, but instead to understand \u201cdomicile\u201d as central to both cases and decide Barbara accordingly.\nDomicile\nThe Solicitor General\u2019s opening remarks staked out a position that the Citizenship Clause was intended to give birthright citizenship to those newly freed from slavery with the end of the Civil War along with those persons\u2019 descendants. He argued that the Clause was never intended to grant citizenship to \u201cthe children of temporary visitors or illegal aliens\u201d because, \u201cunlike the newly freed slaves, those visitors lack direct and immediate allegiance to the United States. For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile.\u201d The executive branch pointed to Wong Kim Ark as evidence that the Supreme Court\u2019s precedent also requires a consideration of domicile, because, in that case, the Court repeated the term many times through the opinion. \nPlaintiffs disagreed with the Administration\u2019s argument that \u201cdomicile\u201d was central to the Wong Kim Ark analysis. Instead, plaintiffs argued that the repetition of \u201cdomicile\u201d in the 1898 case was merely a recitation of stipulated facts\u2014because no one disagreed that Wong\u2019s parents were domiciled in the United States\u2014and the holding of the case did not hinge on this fact. Rather than turn on this uncontested, background fact of the case, plaintiffs say, Wong Kim Ark squarely held that the Citizenship Clause grants birthright citizenship to every child born on U.S. soil not subject to rare exceptions. Plaintiffs\u2019 argument noted that the Fourteenth Amendment uses the word \u201cjurisdiction,\u201d not \u201cdomicile\u201d or, as the executive branch sometimes offered interchangeably, \u201callegiance.\u201d  \nThe executive branch\u2019s arguments about domicile were at times met with questions from the Justices, who wondered how domicile is determined. In response to a question from Justice Thomas, the Solicitor General explained that the Fourteenth Amendment intended to give birthright citizenship to those newly freed from slavery: \u201cthe main object of the Citizenship Clause is to overrule Dred Scott and establish the citizenship of the freed slaves.\u201d Justice Barrett noted, however, that people brought to the United States through the slave trade may not have had an intent to stay\u2014that is, they may not be lawfully domiciled under the government\u2019s test for birthright citizenship, even though the Trump Administration argued this population was the intended target of the Citizenship Clause. Justice Gorsuch also had an extended colloquy with the Solicitor General about whose domicile was relevant for determining birthright citizenship: the mother, father, or even the child\u2019s. The Justice noted that the language of the Citizenship Clause suggests a focus on the child\u2019s place of birth\u2014\u201call persons born or naturalized in the United States\u201d\u2014whereas the Solicitor General\u2019s arguments in defense of the E.O. appeared focused on the parents\u2019 allegiance.\nStatus of Native Americans\nWhether enrolled members of Indian tribes are birthright citizens under the Citizenship Clause is a question that dates to the codification of the clause itself. Legislative history indicates that Congress considered this question at length during the debates over the Citizenship Clause, and the Civil Rights Act of 1866, which was passed just before the Fourteenth Amendment. The Supreme Court addressed this question in Elk v. Wilkins, concluding that \u201cIndians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes ... are no more born in the United States and subject to the jurisdiction thereof\u2019 within [the Citizenship Clause] than the children of subjects of any foreign government born within the domain of that government.... \u201d In this case, the Supreme Court reasoned by analogy: since children born to diplomats serving in the United States were not birthright citizens\u2014because they were subject to a foreign power\u2014neither were children born owing allegiance to Indian tribes, because they, too, were subjects of a different sovereign. (Congress changed this by legislation; since 1924, enrolled members of Indian tribes have been birthright citizens.) \nThe question in Barbara is how, and whether, the Court\u2019s prior analysis of this question bears on the interpretation of the E.O. \nThe executive branch argued in its briefs before the Supreme Court that Elk was a case in its favor because \u201cchildren of members of the Indian tribes owing direct allegiance to their several tribes\u201d are not citizens at birth under the Fourteenth Amendment and, simultaneously, \u201cIndian tribes residing within the territorial limits of the United States are subject to its authority.\u201d This means that, before Congress changed this by statute, children born to Indian tribes were born on U.S. soil but were not birthright citizens. They were not, as the Court reasoned in Elk, \u201ccompletely subject to [the United States\u2019] political jurisdiction and owing [it] direct and immediate allegiance.\u201d In the context of E.O. 14160, the Trump Administration argued this analysis authorized restricting birthright citizenship only to children born to parents with analogously \u201cdirect and immediate allegiance.\u201d \nBy contrast, the plaintiffs have a different explanation for Elk, arguing that the exceptions to the Citizenship Clause are a \u201cclosed set of exceptions to an otherwise universal rule.\u201d Only those \u201ccloaked with a fiction of extraterritoriality because they are subject to another sovereign\u2019s jurisdiction even when they\u2019re in the United States\u201d are excluded from the Citizenship Clause\u2019s grant of birthright citizenship, according to plaintiffs. This \u201cclosed set\u201d includes children born to diplomats, children born to invading armies or aboard warships, and\u2014for a time\u2014children born to Indian tribes. \nBright-Line Rules\nBoth parties agreed that before the E.O., the status quo in the United States has been a bright-line rule: children born on U.S. soil, and not subject to rare exceptions, are birthright citizens. At oral argument, the Justices pushed both advocates to articulate what the legal standard might look like if the E.O. were to take effect, and how birthright citizenship might be determined if not an administrable bright-line rule.\nSome of these questions were prompted by the executive branch\u2019s theory of the case, which relies on \u201cdomicile\u201d having a subjective intent element. That is, the Trump Administration\u2019s argument turns in part on a person\u2019s mindset. Justice Barrett asked the Solicitor General squarely, \u201cHow would it work? How would you adjudicate these cases? You\u2019re not going to know at the time of birth for some people whether they have the intent to stay or not\u2014including U.S. citizens, by the way.\u201d The Solicitor General responded that the E.O. turns on \u201can objectively verifiable thing, which is immigration status\u201d and would not require an examination of subjective intent to remain in the United States. \nJustice Jackson, referring back to Justice Barrett\u2019s questions, asked, \u201cHow does this work? Are you suggesting that when a baby is born, people have to ... present documents? Is this happening in the delivery room?\u201d In response, the Solicitor General explained that the Social Security Administration (SSA) has promulgated guidance about how it will enforce the E.O. if it is permitted to take effect, and parents may contest\u2014\u201cafter the fact\u201d\u2014the SSA\u2019s determination if they believe it has wrongly determined their child is not a birthright citizen. \nAdditionally, the Solicitor General noted that the E.O., by its terms, applies only prospectively: that is, only to children born after the E.O. takes effect.\nCrafting the Court\u2019s Holding\nThe plaintiffs asked the Court to \u201creaffirm its decision in Wong Kim Ark.\u201d Likewise, the Trump Administration agreed that the holding of Wong Kim Ark would control this case. In addition to agreeing on the centrality of Wong Kim Ark, both parties agreed the Court should address the core merits issue in this case\u2014the constitutionality of the E.O. \nJustice Gorsuch asked, \u201cat the end of the day, then, this is a straight-up constitutional ruling you want from this Court?\u201d to which the Solicitor General responded affirmatively, in part because the executive branch\u2019s theory of the case rests on the assertion that \u201cthe statute and the Constitution mean the same thing.\u201d \nJustice Kavanaugh noted that the Court sometimes opts to apply a rule of constitutional avoidance\u2014that is, to decide cases on statutory grounds and to avoid constitutional holdings where possible\u2014and asked plaintiffs whether that was one route to resolve this case. Plaintiffs responded, \u201cit would be prudent to go ahead and reaffirm\u201d Wong Kim Ark, but, \u201cof course, we\u2019re happy to take a win on any ground.\u201d \nA decision is expected by the end of the Court\u2019s term. ", "https://www.congress.gov/crs_external_products/LSB/PDF/LSB11423/LSB11423.2.pdf", "https://www.congress.gov/crs_external_products/LSB/HTML/LSB11423.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["LSB11423"], "units": {}, "query_ms": 0.4142650868743658, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}