Washington Lawyer May/June 2026
By Richard Blaustein
In President Donald Trump's second term, several immigration law and enforcement contests have ascended to U.S. Supreme Court review. Drawing intense attention among them is Trump v. Barbara, involving challenges to Executive Order 14160, "Protecting the Meaning and Value of American Citizenship." The High Court heard oral argument in Barbara on April 1, 2026.
EO 14160, which Trump signed on his first day back in office, asserts that the long-standing right of "birthright citizenship" should not be granted to two groups: children born to undocumented individuals and those born to mothers whose presence was lawful but temporary, "such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa." Both provisions assume that the father is not a U.S. citizen or lawful permanent resident.
Legal Underpinnings
At issue is the first clause of the 14th Amendment: "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." Under this citizenship clause, the 14th Amendment, adopted in 1868, has been understood as granting birthright citizenship to infants born in the United States, regardless of parental residency status, with a few exceptions, such as children of diplomats.
This right derives from the common law principle of "jus soli" (law of the soil), identifying anyone born on British soil as a subject of the Crown, with rights, allegiance, and protection attached to their birth. The current U.S. Department of Justice (DOJ) position rejects this broad application of jus soli. "British law is an especially poor guide to interpreting the Citizenship Clause," DOJ asserts in its Barbara brief.
Another point of contest is the phrase "subject to the jurisdiction thereof." DOJ argues that this refers to not just regulatory jurisdiction but also "political jurisdiction" or "allegiance" — which does not apply to undocumented immigrants.
The interpretation of jurisdiction was a prominent point of contention during the April 1 Supreme Court oral argument. "For aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile. For decades following the clause's adoption, commentators recognized that the children of temporary visitors are not citizens and illegal aliens lack the legal capacity to establish domicile here," U.S. Solicitor General D. John Sauer said in his opening remarks.
"Allegiance is what the word 'jurisdiction' means. It doesn't mean regulatory jurisdiction or … sort of being merely subject to the laws," Sauer said in response to a question from Justice Clarence Thomas. Sauer added that the framers of the citizenship clause of the 14th Amendment were talking and thinking about allegiance in the debates leading to its passage in 1868.
Justice Elena Kagan expressed skepticism on DOJ's position on jurisdiction. "I appreciate that jurisdiction has many meanings, but the first meaning is … if you're subject to jurisdiction, you're subject to the authority of," Kagan said. "One doesn't say, 'Oh, what that means is a certain kind of allegiance that domiciliaries have and nobody else does.' So the text of the clause, I think, does not support you."
Justice Neil Gorsuch also seemed skeptical, noting that immigration laws have changed since 1868, when anyone could show up in the United States and establish domicile.
A major focus in briefs and during oral argument was the landmark 1898 Supreme Court decision on birthright citizenship, United States v. Wong Kim Ark. This opinion held that the 14th Amendment grants birthright citizenship to children born on American soil and of parents who are not U.S. citizens. The Immigration and Nationality Act of 1952 (INA), which codified constitutional text and case law into statute, is also a Barbara focus. Now, DOJ is seeking to upend that precedent, writing in its brief that
- Wong Kim Ark recognized that the Clause guarantees citizenship not just to children of citizens, but also to children of aliens "enjoying a permanent domicil[e] and residence" here ... Only decades after Wong Kim Ark did a latter-day misconception of the Citizenship Clause take root in the Executive Branch and outside commentary: that the Clause grants citizenship to anyone born on U.S. territory and subject to U.S. law, including children of temporary visa-holders and children of illegal aliens … That misinterpretation has, in turn, powerfully incentivized illegal entry into the United States and encouraged "birth tourists" to travel to the United States solely to acquire citizenship for their children.
Critics assert that the executive order is wrong as a matter of law, and if upheld it will have far-reaching consequences. The Center for Immigration Studies estimates that approximately 200,000 babies are born to undocumented individuals every year in the United States.
"The administration in Trump v. Barbara is questioning a bedrock foundational principle of U.S. constitutional law. This is not entirely about immigrants and immigration, but it is also trying to redefine the meaning of America," says University of Virginia law professor Amanda Frost. Frost is an expert on immigration law and has written on general and birthright citizenship in her 2021 book, You Are Not American: Citizenship Stripping From Dred Scott to the Dreamers.
Cody Wofsy, deputy director of the ACLU Immigrants' Rights Project and counsel of record for the respondents in Barbara, says he is optimistic that the Supreme Court will reject the Trump executive order because the 14th Amendment, constitutional jurisprudence, and the INA statute are all clear about birthright citizenship. However, if the Court upholds it, Wofsy says the consequences would be severe.
"Thousands of babies born every month who are citizens under the Constitution would have no status [and] also no real path to status because the immigration laws are not built to address the situation of U.S.-born undocumented people because that is not a category that has ever existed," says Wofsy.
Uncertainty for Immigrant Community
Advocates across the country challenged EO 14160 shortly after it was signed. At the behest of 22 states, two organizations, and seven individuals, district courts in Maryland, Massachusetts, and Washington State issued overlapping nationwide injunctions that prohibited the order from being enforced anywhere in the country. After several appeals courts denied a stay, the administration asked the U.S. Supreme Court to intervene in the consolidated case Trump v. CASA, Inc. In June 2025, the Court held that nationwide injunctions are an inappropriate form of relief. While the Court granted stays to the individual pregnant plaintiffs who had challenged the order, it did not rule on the constitutionality of the birthright citizenship policy itself.
The Barbara case, along with other challenges, quickly followed CASA. The plaintiffs in the lower court, represented by the ACLU, established a class action against the executive order on behalf of recent and expected newborns, and the United States District Court of New Hampshire issued a universal stay in summer 2025. DOJ petitioned for Supreme Court certiorari review on the merits of the EO and against the lower court holding, which the Court granted in December 2025.
The Barbara case has particular pertinence for the Washington, D.C., metro region. Jayesh Rathod, professor at American University Washington College of Law and director of the school's Immigrant Justice Clinic, says that this area's noncitizen population is experiencing a lot of uncertainty around whether there is going to be more or less enforcement, and whether the law is going to change.
"Imagine being a parent who is expecting a child right now and unsure about whether or not the child will be born a citizen and, if they are not, what implications that will have for the child and for them and health care," Rathod says. "This is one thing on top of many other dimensions of uncertainty that noncitizens in our community are facing."
Rathod also highlights the executive order's second focus on those with legal temporary residency. "When we think of the population of noncitizens living in D.C., Maryland, and Virginia, of course we have people who are undocumented, but we also have a significant number of people on temporary statuses," including those working for governmental organizations, Rathod says. "Also, our area has a big cluster of higher education institutions, so we have a lot of international students coming [here]."
"The way the immigration system is set up, many of the temporary statuses are quite lengthy, and there are temporary visas that have no exact time limit. For example, if you are here on a student visa, you are here for the duration of your studies, which could be six years for a PhD. It complicates the lives of those individuals," considering that they may want to build a family during that time, Rathod adds.
History Informing Rights
The Barbara case certainly summons a lot of history — common law, the great enactments immediately following the Civil War, late-19th-century immigration policies and prejudice, and 20th-century cases and statutes.
A central point of examination is what the 39th Congress intended for citizenship when it passed the 14th Amendment. Frost says its drafters wanted to permanently reverse Dred Scott and replicate the Civil Rights Act of 1866. "Senator Lyman Trumbull, a leader of Reconstruction, first proposed giving citizenship to all persons of 'African descent.' But he then revised that language, [suggesting] instead to give citizenship to 'all persons born in the United States,'" Frost explains. "It is clear he wanted to give everyone citizenship at birth, with narrow exceptions unrelated to race, which is why he used race-neutral language."
The advocates of the Civil Rights Act of 1866 also realized that citizenship rights would best be solidified by a constitutional amendment, according to Frost. "By putting this in the Constitution, they were saying 'we are taking this away from the political branches and making it something about which we cannot have a question,'" Frost says.
In the debate about the citizenship clause, Senator Edgar Cowan of Pennsylvania positioned himself with President Andrew Johnson, challenging proponents on whether the clause granted citizenship birthrights to Chinese Americans and other groups.
"Cowan was a very useful interlocutor in the debates," Frost says. "He would say things like 'this language would give citizenship to the children of Chinese immigrants and the children of Gypsies, and that's terrible.' And the response was, 'yes, it does that,' and then they voted it into law."
"If Cowan hadn't been there, it would have been a bit vague on who the 14th Amendment citizen provision covered … And so it was clear the language did not exclude people the way the current administration is arguing," Frost adds.
The mention of "Gypsies," commonly referred to today as the Roma, was an especially revealing focus of the Reconstruction Congress, according to Gerard Magliocca, professor of law at the Indiana University Robert H. McKinney School of Law. In 2026, Magliocca, who has written a 2013 biography of Ohio Congressman John Bingham, lead author of the 14th Amendment's equal protection and due process guarantees, published the Harvard Journal of Law and Public Policy article "Without Domicile or Allegiance: Gypsies and Birthright Citizenship," a version of which he submitted as an amicus brief for Barbara.
Magliocca points out that granting subject status for children of the Roma has a long tradition in Britain, going back to a 16th-century Parliament promulgation, "An Act for the Punishment of Vagabonds Calling Themselves Egyptians." (The word "Gypsies" derived from misidentified Egyptians at the time.)
The discussion on the Roma explicitly came up in the Reconstruction Congress debates, according to Magliocca, writing in his Harvard article:
- [I]n 1866, Senator Cowan argued that American birthright citizenship should not apply to [G]ypsies because, among other things, they 'have no homes' and 'no allegiance' to the United States. He lost. He lost even though they paradigmatically lacked homes or allegiance. Senator Cowan and President Johnson lost because the text of the Fourteenth Amendment says nothing about domicile or allegiance for purposes of national citizenship. But they also lost because they wanted Congress to reject the longstanding principle that the status of parents was almost always irrelevant to the status of their native born children. Congress refused to do that then, and no President can do that now.
"This is relevant because the [current] government says in its brief that domicile is required by the 14th Amendment for your child to have birth citizenship," Magliocca tells Washington Lawyer. But the Roma don't have a domicile and yet are birth citizens, so the requirement "makes no sense," Magliocca adds.
Frost agrees with Magliocca and underscores the broader understanding of the 14th Amendment. "All this suggests that the government's test of domicile and allegiance, and how long your parents stayed in the U.S., and what was their subjective state [are not] what the Reconstruction Congress wanted. They wanted a clear, easy, bright-line rule," says Frost.
The Wong Kim Ark case offers insight as well. The Trump administration claims that the case does not address undocumented individuals because Wong's parents were legal residents. Justice Horace Gray, who authored the decision, affirms early in Wong Kim Ark the guidance and authority of common law tradition for understanding birthright citizenship. "The Constitution … must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution," Gray wrote.
After examining different precedents and treatises, Gray listed exceptions to birthright citizenship — "children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes."
"The [14th] Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States," Gray further wrote.
The citizenship of Native Americans was clarified with the Indian Citizenship Act of 1924, recognizing as citizens Natives born in the United States.
Arguing in defense of birthright citizenship, ACLU National Legal Director Cecillia Wang said the citizenship rule was enshrined in the 14th Amendment "to put it out of the reach of any government official to destroy."
"When the government tried to strip Mr. Wong Kim Ark's citizenship on largely the same grounds they raise today, this Court said no. Thirty years after ratification, this Court held that the 14th Amendment embodies the English common law rule. Virtually everyone born on U.S. soil is subject to its jurisdiction and is a citizen," Wang said in her opening remarks.
Wofsy says the context of Wong Kim Ark makes that decision even more striking. "This was an era of absolutely vehement anti-Chinese legislation that was bipartisan. There was a series of decisions that upheld that legislation and gave the government broad authority over immigration questions, and echoed the racist sentiment that underlay that legislation," Wofsy says. "Wong Kim Ark really stands as a vindication of the text of the Constitution, the reality of law, and the history over what was really a thinly veiled appeal to anti-Chinese racism."
Magliocca says that if the executive order is struck down, jurists might adjust the way original meaning is pursued in American law. "It would be a really great thing for originalism if Justice Thomas or another very well-known originalist of the Court wrote an originalist opinion on why originalism means that this order is illegal," Magliocca says. "A problem with originalism as it is applied in the Court is that people tend to think it really is used for conservative outcomes, or things that are friendly to the Republican Party."
"It would be nice if there were a clear example you could point to where you could say, 'see, originalism is neutral with respect to party or politics.' This is the easiest case for that because the historical evidence is so overwhelming," Magliocca suggests. "Now whether that is going to play out, we'll see."
The U.S. Supreme Court is expected to rule on Barbara by late June or early July 2026.
Richard Blaustein is a D.C. Bar member and freelance journalist covering the environment, science, and legal issues.
