The Supreme Court will hear oral arguments on April 1 in Trump v. Barbara, the case challenging President Donald Trump's executive order that denies birthright citizenship to certain children born on U.S. soil. It is the first time the high court has agreed to directly confront the scope of the 14th Amendment's citizenship clause in the modern immigration context.
The executive order, signed on January 20, 2025, applies to children born after February 19, 2025, whose parents are either illegally present in the United States or here on temporary visas. The question before the justices is deceptively simple: what does "subject to the jurisdiction thereof" actually mean?
For decades, the political establishment treated birthright citizenship as settled law, a constitutional given that no serious person would question. That consensus is now before the nine justices, and the legal arguments supporting the challenge are far more grounded in history than critics would like to admit.
According to Just the News, the entire case turns on five words in the 14th Amendment: "subject to the jurisdiction thereof." The amendment was ratified to provide citizenship to formerly enslaved African Americans. Its application to the children of foreign nationals, including those here illegally, rests not on the amendment's text or its framers' intent, but on subsequent judicial interpretation.
Second Circuit Judge Steven Menashi has noted that the clause refers to being born under the protection of, and owing allegiance to, a sovereign. That framing matters enormously. If jurisdiction requires allegiance, the automatic extension of citizenship to children of illegal immigrants is not a constitutional command. It is a policy choice dressed up as one.
Ilan Wurman, a law professor at the University of Minnesota, argued that English common law, on which America's founding documents were modeled, tied citizenship to a reciprocal relationship between sovereign and subject. Permission to be present was linked to protection, and protection was linked to jurisdiction. As Wurman put it:
"Permission was relevant to protection and protection, as it turns out, was relevant to jurisdiction."
That framework draws a clear line between those lawfully admitted to the country and those who entered or remained in violation of its laws. Wurman also noted the historical understanding of how sovereignty operated on families:
"The sovereign operated on children through the parents, which, of course, makes sense because parents have a natural authority over their children."
If the parents have no lawful permission to be here, the logic follows that their children are not "subject to the jurisdiction" of the United States in the constitutional sense the 14th Amendment contemplated.
Yale law professor Keith Whittington offered a nuanced point that undercuts the left's position even on its own terms. He traced the concept of sovereign jurisdiction back to English legal tradition, where a king's decision not to remove a foreign national still placed that person under the crown's governing authority. Whittington explained:
"If the king chooses to tolerate your presence in the country and does not take active steps to remove you, then the assumption is you are under the full governing authority of the king and should be treated accordingly."
At first glance, this might seem to support birthright citizenship for children of illegal immigrants. If you're here, you're under jurisdiction. But Whittington connected this directly to the Trump administration's enforcement posture, which targets the "worst of the worst" among those here illegally. The implication is significant: a government actively working to deport someone has not chosen to tolerate their presence. The reciprocal relationship that historically undergirded jurisdiction simply does not exist.
Whittington elaborated on what tolerance actually means in practice:
"If you're not being actively removed from the country, then you are expected to play by the rules of the local jurisdiction and the government will continue to place demands on you and also expect that you will abide by local laws until the moment comes when we choose to actually take action and deport you."
This is not an argument for blanket birthright citizenship. It is an argument that jurisdiction is contingent, not automatic. And in an era of active enforcement, the category of people whose presence the government has chosen to tolerate is narrower than the open-borders crowd would prefer.
Both Wurman and Whittington agreed that the justices should not read the 14th Amendment as automatically extending citizenship to every child born on American soil to foreign parents. But they also pointed to a glaring institutional failure: Congress has never bothered to clarify the amendment's definitional ambiguities.
Whittington suggested that if Congress genuinely cared about phenomena like birth tourism, it had the authority to act:
"If Congress really cared about this, they can take steps to try to minimize how often it happens, but that's the extent of their authority to be able to do something about it."
He also acknowledged that any legislation would likely contain its own loopholes, much like the amendment itself. This is an honest concession, but it doesn't excuse decades of legislative inaction. Congress has been content to let courts do its work, and courts have been content to let a post-hoc interpretation stand in for original meaning. The result is a citizenship framework built on assumptions rather than text.
The broader significance of Trump v. Barbara extends well past constitutional interpretation. Birthright citizenship as currently practiced creates a set of incentives that no rational immigration system would design on purpose:
Every other developed nation has moved away from unrestricted birthright citizenship or never adopted it in the first place. The United States clings to it not because of constitutional necessity, but because of political convenience. Democrats benefit from the demographic math. Republicans have lacked the institutional will to challenge it. Until now.
Much of the legal and media establishment will frame this case as radical, an assault on constitutional norms by an overreaching executive. That framing requires you to accept that a 19th-century amendment designed to secure the citizenship of freed slaves was always intended to grant automatic citizenship to the children of people who broke the law to be here. It requires you to believe the framers of the 14th Amendment imagined a world in which illegal entry would generate irrevocable legal rights for the next generation.
The scholars preparing the ground for this argument are not fringe voices. They are a federal appellate judge and professors at Yale and the University of Minnesota. Their reading of the text and its historical antecedents is serious, sourced, and difficult to dismiss on the merits.
The Supreme Court now has the opportunity to do what Congress wouldn't and what lower courts have avoided: read the 14th Amendment as it was written, not as decades of political convenience have wished it to read. April 1 is not just a date on the docket. It is the first honest examination of a question the country has been told, for far too long, was not allowed to be asked.
