Facts of the Case
On January 20, 2025, President Donald J. Trump issued Executive Order No. 14,160, titled “Protecting the Meaning and Value of American Citizenship,” which declared that individuals born in the United States are not U.S. citizens at birth if their parents lack sufficient legal status. Specifically, the order directs federal agencies not to recognize citizenship claims for children born after February 20, 2025, if: (1) the mother was unlawfully present in the U.S. and the father was neither a U.S. citizen nor a lawful permanent resident (LPR), or (2) the mother’s presence in the U.S. was lawful but temporary and the father was not a U.S. citizen or LPR. The order was issued on the alleged basis that the Fourteenth Amendment’s Citizenship Clause does not confer birthright citizenship on such children because they are not “subject to the jurisdiction” of the United States in the constitutional sense.
Three families challenged the order on behalf of themselves and similarly situated individuals. One class representative is Barbara, a Honduran asylum applicant whose child is due in October 2025. Another is Susan, a Taiwanese citizen in the country on a student visa whose daughter was born in April 2025; her child’s passport application was in progress at the time of the suit. The third is Mark, a Brazilian applicant for permanent residence whose son was born in March 2025 and initially received a U.S. passport. These families filed suit under pseudonyms, alleging that the Executive Order unlawfully strips their children of citizenship guaranteed by the Fourteenth Amendment and 8 U.S.C. § 1401(a). They seek to preserve access to citizenship-related benefits including Social Security, SNAP, and Medicaid.
The U.S. District Court for the District of New Hampshire issued a preliminary injunction and provisionally certified a nationwide class of children affected by the order. The court held that the plaintiffs were likely to succeed on the merits of their constitutional and statutory claims. That decision was appealed to the U.S. Court of Appeals for the First Circuit, and before a ruling from that court, the Supreme Court granted certiorari before judgment.
Questions
Is a presidential executive order that denies U.S. birthright citizenship to children born in the United States because their parents are unlawfully present or in the country on temporary visas consistent with the Citizenship Clause of the Fourteenth Amendment and 8 U.S.C. § 1401(a)?
Conclusions
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The Fourteenth Amendment’s Citizenship Clause guarantees citizenship at birth to every person born in the United States to parents who are unlawfully or temporarily present, because those children are “subject to the jurisdiction” of the United States within the meaning of that Clause. Chief Justice John Roberts authored the 5-4 majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson.
The Citizenship Clause rests on the English common law principle of jus soli — Latin for “right of the soil” — under which any person born within a sovereign’s territory owes that sovereign allegiance and is a natural-born subject, regardless of how briefly their parents were present. This rule traveled to America after independence and prevailed in every state. The Fourteenth Amendment codified it specifically to repudiate Dred Scott v. Sandford (1857), which had substituted bloodline for birthplace to deny citizenship to Black Americans. The Amendment’s authors described its Citizenship Clause as “simply declaratory” of existing law, and the 1898 precedent United States v. Wong Kim Ark confirmed that the Clause incorporated the common law rule, extending citizenship to all born here except the children of foreign diplomats (who occupy a legal fiction of extraterritorial status) and members of Indian tribes (who lived under separate quasi-sovereign governance).
The key phrase — “subject to the jurisdiction” of the United States — means subject to the nation’s full governing power over those physically present within its borders, as Chief Justice Marshall defined that power in Schooner Exchange v. McFaddon (1812). That power extends to every private individual present in the country regardless of their purpose or legal status, unless a foreign sovereign has a recognized interest in exempting them. No such interest applies to the children of temporary visitors or unlawful entrants: no foreign government claims exemption for its private citizens who happen to give birth on American soil. The Government’s argument that citizenship additionally requires domicile — meaning the parents’ intent to make the United States their permanent home — fails for lack of historical support. Congressional debates on both the Civil Rights Act of 1866 and the Fourteenth Amendment consistently invoked the common law standard, not a domicile requirement, and the words “mother,” “father,” “lawful,” and “temporary” that appear in the Executive Order are conspicuously absent from the Clause itself.
Justice Jackson concurred, joined in part by Justice Sotomayor, arguing that the Fourteenth Amendment was not a narrow remedy for freed slaves but a universalist, anti-caste reset for the entire Nation, and that Justice Clarence Thomas’s reading of the Clause as limited to those with characteristics similar to freedmen distorts that broader purpose.
Justice Brett Kavanaugh concurred in the judgment and dissented in part, arguing the Court should have resolved the case on the narrower statutory ground that the Executive Order violates 8 U.S.C. §1401(a), and disagreeing with the constitutional holding because Wong Kim Ark’s four recognized exceptions to birthright citizenship should not be treated as a permanently frozen “closed set” — Congress could constitutionally legislate new exceptions for children of those unlawfully or temporarily present.
Justice Thomas dissented, joined by Justice Neil Gorsuch, arguing the Citizenship Clause requires parental domicile in the United States, that the clause was designed to recognize freed slaves and others who called America home as citizens, and that the majority’s reliance on a single antebellum state equity-court opinion (Lynch v. Clarke) and the dicta of Wong Kim Ark cannot support constitutionalizing a feudal English rule Americans expressly rejected.
Justice Samuel Alito dissented, arguing “subject to the jurisdiction” means not being “subject to any foreign power” — the standard drawn directly from the parallel Civil Rights Act of 1866 — and that children born to parents who are automatically nationals of foreign countries at birth bear obligations to those countries and thus fall outside the Clause’s protection, making the Executive Order at minimum facially valid.
Justice Gorsuch dissented, joining Justice Thomas’s opinion and writing separately to emphasize that Wong Kim Ark’s holding applied only to parents who had established permanent domicile in the United States, that the facial-challenge standard under United States v. Salerno is not met here because the order is lawful as applied to temporary visitors, and to flag as an open question whether children of long-term undocumented immigrants who have made the United States their permanent home might separately qualify for citizenship in as-applied challenges.
