United States Supreme Court: The question that arose in the present case was whether the Constitution guarantees citizenship to children born in the United States to parents who are unlawfully or temporarily present in the country. Roberts, C.J.*, and Sotomayor, Kagan, Barrett, Jackson**, Kavanaugh***, Thomas****, Gorsuch, and Alito, JJ., by a 5:4 majority, held that such children are citizens at birth under the Citizenship Clause of the Fourteenth Amendment. The Executive Order was, however, struck down by a 6:3 majority, with Kavanaugh, J., agreeing with the result on statutory grounds while dissenting from the Court’s constitutional reasoning.
The Court ruled that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States and therefore acquire citizenship at birth. The majority concluded that neither the constitutional text, historical understanding, nor precedent supports a domicile- or parent-status-based limitation on birthright citizenship.
Background
On 20 January 2025, President Donald Trump issued Executive Order, titled Protecting the Meaning and Value of American Citizenship. The Order declared that children born in the United States would not automatically obtain U.S. citizenship where:
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Their mother was unlawfully present in the United States, and the father was neither a U.S. citizen nor a lawful permanent resident; or
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Their mother was lawfully but temporarily present in the United States and the father was neither a U.S. citizen nor a lawful permanent resident.
Several parents, acting on their own behalf and on behalf of their children, challenged the Order, arguing that it violated both the Fourteenth Amendment and the Immigration and Nationality Act, 1965 (INA). The District Court provisionally certified a nationwide class and granted a preliminary injunction against enforcement of the Order.
Analysis, Law and Decision — Birthright Citizenship Dispute
The majority opinion was authored by Chief Justice Roberts, a concurring opinion by Justice Jackson, a partial concurrence and partial dissent by Justice Kavanaugh, and dissenting opinions by Justice Thomas, Justice Alito, and Justice Gorsuch.
Majority Opinion (Roberts CJ., and Sotomayor, Kagan, Barrett, and Jackson, JJ.)
The Court held that the Citizenship Clause must be interpreted against the backdrop of English common-law jus soli principles, the repudiation of Dred Scott v. Sandford, 19 How. 393 (1857), the Civil Rights Act, 1866, and the Fourteenth Amendment. The Clause guarantees citizenship to virtually all persons born in the United States, subject only to a few historically recognised exceptions.
The Court observed that the phrase “subject to the jurisdiction thereof” refers to the United States’ sovereign authority over persons within its territory, not to the immigration status, domicile, or citizenship of a child’s parents. Children born in the United States to parents who are unlawfully or temporarily present remain fully subject to US law and therefore satisfy the constitutional requirement.
The Court held that birth right citizenship extends to nearly all children born on American soil, except narrow historical categories such as children of foreign diplomats and similar persons enjoying extraterritorial immunity. The Court rejected arguments that citizenship depends on parental domicile or “exclusive allegiance”. Accordingly, Executive Order was held inconsistent with the Fourteenth Amendment and the statutory framework of the INA.
Justice Jackson (Concurring)
Jackson, J., emphasized that the Fourteenth Amendment was not merely a race-specific remedy for freed slaves but a broader constitutional commitment to equal citizenship and the rejection of caste-based systems. Jackson, J. examined the history of the Colored Conventions, Reconstruction debates, and the Civil Rights Act, 1866, noting that advocates for the Fourteenth Amendment consciously adopted universal language extending citizenship beyond formerly enslaved persons. The historical record demonstrated that Congress intentionally rejected proposals that would limit citizenship based on ancestry, race, or parental status.
Jackson, J., stated that the Amendment embraced a universalist vision of citizenship and that denying birthright citizenship based on lineage or parental immigration status would revive concepts the Reconstruction Amendments were specifically designed to defeat.
Justice Kavanaugh (Dissented in Reasoning but Concurred with Judgment)
Kavanaugh, J., agreed that the Executive Order could not stand, but for a different reason. He concluded that the Order contravene a federal statute, 8 U. S. C. §1401(a), which codifies birthright citizenship and mirrors the language of the Fourteenth Amendment. However, Kavanaugh, J., disagreed with the majority’s constitutional analysis, and stated that Congress retains authority to establish additional exceptions to birthright citizenship through legislation. Kavanaugh, J., argued that the exceptions recognised in United States v. Wong Kim Ark, 169 U. S. 649, should not be treated as permanently fixed and that constitutional principles may accommodate new circumstances not contemplated in 1868.
Thus, while the Executive Order was unlawful because it conflicted with existing federal statute, Kavanaugh, J., believed Congress could potentially enact legislation creating such exceptions in the future.
Justice Thomas (Dissent, joined by Justice Gorsuch)
Thomas, J., concluded that the Citizenship Clause historically required more than mere birth within U.S. territory. Citizenship was traditionally linked to domicile, permanent attachment, and exclusive allegiance to the United States. Both the Civil Rights Act, 1866 and the Fourteenth Amendment, were designed principally to secure citizenship for formerly enslaved persons, individuals who had no foreign allegiance or alternative homeland. Thomas J. stated that children of temporary visitors and certain foreign nationals remained subject to foreign powers and therefore fell outside the Citizenship Clause.
Thomas, J., criticised the majority’s reliance on English common-law jus soli principles and argued that historical legislative practice, executive interpretations, and post-ratification scholarship supported a domicile-based understanding of citizenship.
Justice Alito (Dissent)
Alito, J., similarly argued that the constitutional phrase “subject to the jurisdiction thereof” requires exclusive allegiance to the United States and excludes persons who remain subject to a foreign sovereign. Alito, J., rejected the majority’s view that territorial presence alone satisfies the Clause and further contended that the Court’s interpretation creates incentives for illegal immigration and birth tourism and departs from the original meaning of the Citizenship Clause.
Conclusion
The Court affirmed the District Court’s injunction and held that children born in the United States to parents who are unlawfully or temporarily present in the country are citizens at birth under the Fourteenth Amendment. The Court ruled that Executive Order was unconstitutional because the Citizenship Clause guarantees birthright citizenship to persons born on US soil who are subject to US territorial jurisdiction, regardless of their parents’ immigration status.
[Trump v. Barbara, 609 U.S. ___ (2026), decided on 30 06 2026]
*Majority Opinion: Chief Justice Roberts (joined by Sotomayor, Kagan, Barrett and Jackson, JJ.)
**Concurring Opinion: Jackson, J.
***Concurring in Judgment and Dissenting in Part: Kavanaugh, J.
****Dissenting Opinions: Thomas, J. (joined by Gorsuch, J.); Alito, J.; Gorsuch, J. separately.
