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What does the Citizenship Clause mean? “All 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.” Established practice extends citizenship to any child born in the United States. But that practice does not reflect its historical roots. Everyone agrees that a child born to U.S. citizen parents in the United States is a U.S. citizen at birth. And everyone agrees that a child born to Canadian parents in Canada is not. But what the Constitution requires for children born outside of those two easy cases is more complicated.
Many scholars have recently published works explaining that historical background. Some notable scholarship includes pieces by Kurt Lash, Ilan Wurman, Richard A. Epstein, and Samuel Estreicher, among others. Even the New York Times published an op-ed explaining some of the historical background behind the unconventional position by originalist law professors Wurman and Randy Barnett.
President Trump opened the latest round of this scholarly debate with his executive order on “Protecting the Meaning and Value of American Citizenship.” That order tasked the federal government with ensuring that birthright citizenship was not extended to illegal aliens or short-term visitors. Reading meaning into both “born . . . in the United States” and “subject to the jurisdiction thereof,” the order retrenched birthright citizenship away from its broadest textual bounds.
After a flurry of lawsuits challenging the order, the United States sought emergency relief on the scope of the national injunctions entered in three of the cases: Trump v. Washington, Trump v. CASA, Inc., and Trump v. New Jersey. The Supreme Court granted argument, which it heard on the three consolidated cases on May 15, 2025. Twenty-two states filed amicus briefs supporting President Trump’s position: one twenty-state brief led by Iowa and two briefs from Tennessee and West Virginia.
The Iowa-led brief focused on a few key points, starting with asking the Supreme Court to act consistently in its application of standing doctrine to immigration law. Just last year, the Supreme Court found Texas lacked standing to challenge some aspects of federal immigration law in United States v. Texas. The state coalitions led by Washington and New Jersey challenging federal immigration priorities should be treated no better (and no worse) than Texas.
Ultimately, the merits should affect the scope of relief. The Iowa-led brief looked at the history behind birthright citizenship and found much less support than implied by the conventional wisdom. Particularly important is the historical executive practice contemporaneous with the Fourteenth Amendment’s enactment, as described by Professor Estreicher of New York University.
One example includes Secretary of State Thomas Bayard’s rejection of Richard Greisser’s claim to American citizenship. Greisser was born in Ohio to a German father domiciled in Germany. Greisser and his father moved to Europe shortly before his second birthday. Bayard denied Greisser’s citizenship, explaining that “he was on his birth ‘subject to a foreign power’ and ‘not subject to the jurisdiction of the United States.’” Thus, he was not a citizen of the United States by birth. Many examples like Greisser’s complicate the story.
The states also highlighted the significant costs and risks that illegal immigration causes. Many of those costs—an estimated $115 billion annually—are borne by the states and their citizens.
Despite the many amicus briefs on the history of birthright citizenship, the oral argument did not focus on the merits, instead hewing closely to whether universal injunctions are appropriate.
Solicitor General John Sauer started the marathon two-and-a-half-hour argument by explaining the unprecedented spate of universal injunctions entered against the Trump administration. Among other problems, he highlighted their asymmetrical nature, the incentive for forum shopping, increased risk of conflicting judgments, and the burden on the Court’s emergency docket. Sauer contended that Article III limits relief to the parties before a court.
After a question about history from Justice Thomas—a question he would ask each advocate—the tone shifted and became combative. Justices Kagan, Sotomayor, and Jackson asked pointed questions about whether injunctions must be limited to only parties. The Justices contended that courts must be able to stop illegal actions. They contended that universal injunctions enable courts to move quickly, reach the merits, and put an end to illegal conduct as quickly as possible. Sauer responded that such an approach is inconsistent with Article III and Rule 23 of the Federal Rules of Civil Procedure.
Chief Justice Roberts and Justices Alito, Barrett, and Kavanaugh asked about practicalities and implementation, both of universal injunctions and more generally. Each asked about what courts should do if universal injunctions are prohibited. They focused on class actions and the potential for fast class-action relief under Rule 23.
Sauer’s argument felt like a drag-out knuckle-fight. It was a contest between the executive branch and many of the concerns raised by the highest authorities in the judiciary. A few of the Justices seemed skeptical of Sauer’s refusal to commit to following circuit precedent in circuit and of Sauer’s explanation that sometimes the federal government seeks to challenge and reverse precedent. Rather than the respectful tone usually reserved for the Solicitor General, the questions asked were harsh and skeptical.
New Jersey Solicitor General Feigenbaum spoke next and faced much less pointed questioning. Core to his argument was a proposal that universal injunctions may be appropriate in three self-styled buckets: when relief must be universal to remedy the harm, when Congress acts, and when a case is exceptional such that other relief may not be quickly available.
Feigenbaum’s argument focused on those three buckets. There were questions about the bipartisan opposition from presidents of both parties, the applicability of universal relief to states, and whether Feigenbaum’s suggested third bucket could swallow any proposed limitation on universal injunctions.
There were a few questions about percolation and whether the merits of the birthright citizenship issue could quickly get to the Court. Feigenbaum invited supplemental briefing and, perhaps sensing friendliness from many Justices, invited quick action on the merits. Despite the friendly atmosphere and questions, many Justices appeared to struggle with how to draw a line limiting universal injunctions but not banning them.
Georgetown Law Professor Kelsi Corkran argued on behalf of private respondents opposing a stay of relief. After Justice Thomas’s history question, Justice Kavanaugh dove into the availability of—and limits of—class certification under Rule 23. Justice Gorsuch asked whether bills of peace were predecessors to Rule 23, and if so whether that suggests that Rule 23 and class actions are a better avenue for seeking universal-injunction-style relief. Splitting from Feigenbaum, Corkran suggested that universal relief may be warranted in cases involving important constitutional rights rather than discretionary benefits.
Both Feigenbaum and Corkran faced less-hostile questions than Sauer but relied on peeking at the underlying merits issue to encourage the Court not to limit universal injunctions.
After argument, it is unclear what the Supreme Court will do regarding universal injunctions. There are at least three votes strongly in support of the injunctions in these cases—Justices Sotomayor, Kagan, and Jackson. Chief Justice Roberts and Justices Gorsuch and Kavanaugh leaned more toward limiting universal injunctions. Justice Thomas focused on history, perhaps tipping his hand against universal injunctions when asking Corkran if she believed that practicalities and pragmatics should override history. Justice Barrett asked thoughtful questions to both sides. While Justices Gorsuch and Barrett did not tip their hands at argument, past writings—including in United States v. Texas—show skepticism about universal injunctive relief.
Given that split, it is likely that there will be some limitations placed on universal injunctions. But the contours of those limitations could go in many different directions. While the likeliest outcome is a decision before the end of the term in late June or early July, there is some chance of a request for extra briefing on the merits and further delay. And regardless of whether the Supreme Court limits universal injunctions as they currently exist, it appears likely that alternative relief may be available—likely through preliminary or putative class actions.