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On June 30, 2026, the Supreme Court held in Trump v. Barbara (No. 25-365) that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Citizenship Clause of the Fourteenth Amendment. Chief Justice Roberts authored the majority opinion, joined by Justices Sotomayor, Kagan, Jackson, and Barrett. Justice Jackson filed a separate concurrence, joined in part by Justice Sotomayor. Justice Kavanaugh concurred in the judgment and dissented in part. Justice Thomas filed a dissent, joined by Justices Alito and Gorsuch. In other words, the Court decided the case by both a 6-3 and a 5-4 margin, depending on the specific legal grounds: 5-4 on the core constitutional question of whether the 14th Amendment’s Citizenship Clause guarantees birthright citizenship to children of non-citizens; 6-3 on whether the executive order violated federal (statutory) law, with Justice Kavanaugh joining the constitutional majority to invalidate the President’s policy on statutory grounds.

As discussed in Dykema’s April 2026 edition, Executive Order No. 14160 sought to deny citizenship to certain children born in the United States based on their parents’ immigration status. The government argued that such children are not “subject to the jurisdiction” of the United States within the meaning of the Fourteenth Amendment and, therefore, do not acquire citizenship at birth.

Writing for the Court, Chief Justice Roberts concluded that the Citizenship Clause adopted—not altered—the longstanding common law rule of birthright citizenship. Examining the common law, the Civil Rights Act of 1866, the debates surrounding the Fourteenth Amendment, and the Court’s precedent, the majority held that the Fourteenth Amendment constitutionalized the existing rule that birth within the Nation’s territory generally confers citizenship, subject only to a narrow set of historically recognized exceptions.

The Court rejected the government’s argument that the Fourteenth Amendment’s phrase “subject to the jurisdiction thereof” turns on a child’s or parent’s allegiance to a foreign sovereign. Instead, the Court explained that the phrase refers to the United States’ sovereign authority to govern those within its territory. Because individuals unlawfully or temporarily present in the United States remain subject to American law, their children born here likewise are “subject to the jurisdiction” of the United States for purposes of the Citizenship Clause.

The majority further concluded that its interpretation is confirmed by United States v. Wong Kim Ark, which held that the Fourteenth Amendment incorporated the common law rule of jus soli and recognized only limited historical exceptions, such as children of foreign diplomats and certain persons historically outside the Nation’s sovereign authority. Thus, the Court rejected the government’s proposed rule conditioning citizenship on parental immigration status, domicile, or permanent allegiance.

Justice Kavanaugh concurred in the judgment but would have resolved the case on narrower grounds. In his view, the Executive Order conflicted with statute, namely the Immigration and Nationality Act, making it unnecessary to decide the broader constitutional question. Justice Jackson, joined in part by Justice Sotomayor, concurred to emphasize that the Fourteenth Amendment established a constitutional guarantee of citizenship that the political branches cannot narrow through subsequent executive or legislative action.

Justices Thomas, Alito, and Gorsuch dissented. Each wrote a separate dissent. Justice Thomas (joined by Justice Gorsuch wrote that the Citizenship Clause was originally designed to apply to freed slaves, not the children of foreign temporary visitors or those unlawfully in the country. Justice Gorsuch briefly wrote to explain why he joined Justice Thomas, and raised questions regarding parental domicile and modern immigration categories not considered in the nineteenth century. Justice Alito wrote that the parents must not be subject to any foreign power for their child to automatically be made a United States citizen.

Takeaways

  • Birthright citizenship remains the constitutional rule. The Court reaffirmed that, subject only to the Constitution’s historically recognized exceptions, children born in the United States acquire citizenship at birth regardless of their parents’ immigration status.
  • The Citizenship Clause establishes a constitutional rule that cannot be altered by executive action. The Court concluded that the Fourteenth Amendment itself defines who acquires citizenship at birth, placing that question beyond unilateral revision by the political branches.
  • The decision reinforces the Court’s continued reliance on history and text in constitutional interpretation. Consistent with its constitutional-interpretation decisions over the past decade, the majority grounded its analysis in the original meaning, historical practice, and longstanding precedent when interpreting the Citizenship Clause.

For more information, please contact Chantel Febus, James Azadian, Andrew VanEgmond, Monika Harris, or Sadie Betting.