ARTICLE TEXT

In one of the most important constitutional decisions of recent decades, the Supreme Court of the United States held on 30 June 2026 that the Fourteenth Amendment guarantees citizenship to almost everyone born on American soil, whatever their parents’ immigration status. In Trump v Barbara (No. 25-365), the Court struck down Executive Order 14160, which had sought to deny citizenship to children of parents who were in the country unlawfully or only temporarily.

The Background

On 20 January 2025, his first day back in office, President Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship”. It directed federal agencies not to recognise as citizens children born in the United States whose mothers were unlawfully present or held only temporary status, unless the father was a citizen or lawful permanent resident. The order was challenged immediately.

In Trump v CASA (2025), the Supreme Court limited the power of federal judges to issue universal injunctions. Challengers therefore turned to class actions. In New Hampshire, Judge Joseph Laplante certified a nationwide class of affected babies. On 10 July 2025 he granted a preliminary injunction, finding that the order likely contradicted the Fourteenth Amendment. The Supreme Court then took the case before the Court of Appeals for the First Circuit had ruled, heard argument on 1 April 2026, and gave judgment at the end of the term.

The Question

The Citizenship Clause of the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The same words appear in federal statute at 8 U.S.C. §1401(a). The government argued that children of unlawful or temporary residents are not “subject to the jurisdiction” of the United States, because their parents lack a lasting allegiance or domicile there.

The Decision

The Court rejected that argument. The result was 6–3, but the constitutional reasoning commanded only five votes. Chief Justice Roberts wrote for a majority of himself and Justices Sotomayor, Kagan, Barrett and Jackson. Justice Jackson also wrote a concurrence, joined in part by Justice Sotomayor. Justice Kavanaugh concurred in the judgment in part and dissented in part. He would have decided the case under the statute alone, leaving open what Congress might do by legislation. Justices Thomas (joined by Justice Gorsuch), Gorsuch and Alito dissented.

The majority held that the Citizenship Clause restates the English common-law rule of jus soli, citizenship by place of birth, and was adopted to reverse Dred Scott v Sandford. It held that “jurisdiction” refers to the nation’s full territorial authority, as described by Chief Justice Marshall in The Schooner Exchange v McFaddon (1812). That authority extends to temporary visitors and unlawful residents alike, with narrow exceptions such as the children of foreign diplomats. The Court treated United States v Wong Kim Ark (1898), which recognised the citizenship of a child born in San Francisco to Chinese parents, as confirming that the Amendment declared the existing common law. It found no textual basis for the government’s theories of domicile and “primary allegiance”. As the Chief Justice put it, “Citizenship, then and now, was the right to have rights.”

The Dissents

Justice Thomas argued that the majority’s history was mistaken and that the original understanding required domicile. Justice Alito called the decision “a serious mistake”, pointing to “birth tourism” and children of short-term visitors. Justice Gorsuch suggested the order might be unconstitutional only as applied to some children.

What Happened Next

The dispute did not end in June. On 6 August 2026, the President signed new orders on birthright citizenship and “birth tourism”, saying he believed they “would be constitutional”. On 3 September, Judge Deborah Boardman of the District of Maryland blocked the new order, writing simply: “The Supreme Court has spoken.”

Why It Matters

For comparative constitutional lawyers, Trump v Barbara is a striking example of a court protecting a constitutional guarantee against executive reinterpretation, using text, history and precedent together. It also shows how common-law concepts carried into written constitutions: the English rule of allegiance by birth, taken up by the framers of the Fourteenth Amendment, has now been reaffirmed as the foundation of American citizenship. Students of the UK and Bangladesh constitutions may compare how citizenship is left largely to ordinary legislation in both jurisdictions, and so enjoys far less constitutional protection.

Sources

1. Trump v Barbara, No. 25-365, opinion of the Court (30 June 2026): https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf
2. SCOTUSblog, Supreme Court strikes down Trump’s order ending birthright citizenship (June 2026): https://www.scotusblog.com/2026/06/supreme-court-strikes-down-trumps-order-ending-birthright-citizenship/
3. National Constitution Center, Supreme Court strikes down Trump birthright citizenship executive order: https://constitutioncenter.org/blog/supreme-court-strikes-down-trumps-birthright-citizenship-executive-order-in-landmark-decision
4. Al Jazeera, US judge blocks Trump’s latest effort to limit birthright citizenship (3 September 2026): https://www.aljazeera.com/news/2026/9/3/us-judge-blocks-trumps-latest-effort-to-limit-birthright-citizenship