Birthright citizenship is headed to SCOTUS!

CBS News confirmed Friday (December 5) that the Supreme Court of the United States will revisit the birthright citizenship question. Four Justices, at least, have decided that the Court must reexamine an issue many thought the Court had settled. Their vote to grant review is the more remarkable, because panels in two Circuit Courts of Appeals both upheld the status quo on birthright citizenship. When the circuits don’t split, the Institutionalists are reluctant to move against them. Four Justices are ready to do so. The question now becomes, how can the Trump administration find a fifth Justice to agree with these four? And: can they do it without Congressional action?

Review of the birthright citizenship question

Once again, Amendment XIV Section 1 reads in relevant part:

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.

In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) the Supreme Court first broke the ground on this issue. Recall: never once, before this case, did Congress define what subjects a person to the jurisdiction of the United States. So the Supreme Court had to “wing it.” The Court held:

The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment of the constitution.

After citing several features of English common law, the Court states:

For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

The English common law to which the Court referred, recognized jus soli – the Law of the Soil. By that rule, any child born on lands over which the king held dominion, became a subject of the king. That became the accepted practice in the original British colonies. When America won her independence, she continued the tradition. But she also recognized a tradition deriving from Roman law: jus sanguinis, the Law of the Blood. By that rule – as Emmerich de Vattel would articulate – a child inherits the citizenship of his parents.

Now if jus soli is absolute, a child born in one country to citizens of another, would have a choice. He might even hold dual citizenship by birth. For that reason, Vattel (The Law of Nations) held that only those born in a country, to citizens of that same country, should be considered “natural born citizens.” And for that reason, John Jay prevailed on his fellow Framers to make this kind of natural born citizenship a requirement for Presidential eligibility.

Whom is Trump trying to exclude?

Presidential eligibility is not at issue here. The issue involves children born to a set of parents, both of whom are:

• Not lawfully present in the United States, or
• Holders of temporary residence visas or tourist visas.

Accordingly, President Trump put forth his Executive Order Protecting the Meaning and Value of American Citizenship. His order declares that the following children would no longer enjoy birthright citizenship:

Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth 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) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

This order does not apply to the children of lawful permanent residents. Thus the President must now ask the Supreme Court to distinguish the Wong case. Its basic holding can remain intact even if the Executive Order stands.

In addition, Rep. Brian Babin (R-Texas), on the day after the Inauguration, introduced the Birthright Citizenship Act of 2025. This Act (HR 569) would amend Title 8, U.S.C., Section 1401, by adding this definition of “subject to the jurisdiction”:

(b) DEFINITION .—Acknowledging the right of birthright citizenship established by section 1 of the 14^th amendment to the Constitution, a person born in the United States shall be considered “subject to the jurisdiction” of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—

(1) a citizen or national of the United States;

(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or

(3) an alien with lawful status under the immigration laws performing active service in the armed forces (as defined in section 101 of title 10, United States Code).

That bill has languished in the House Judiciary Committee to this day. So at present, that phrase subject to the jurisdiction has no definition. No doubt various District Courts consider that anyone with two feet on American soil is “subject to the jurisdiction of the United States,” unless he is:

• An “immune” diplomat, or
• A foreign military service member under a Status of Forces Agreeement with the United States.

Obviously the Trump administration disputes that.

Birthright citizenship in the courts

The minute Trump signed his Executive Order, the American Civil Liberties Union filed suit, at first in New Hampshire. Separately, eighteen Democratic State Attorneys General filed their own lawsuit. From their complaint:

The President has no authority to rewrite or nullify a constitutional amendment or duly enacted statute. Nor is he empowered by any other source of law to limit who receives United States citizenship at birth.

On January 23, Judge John C. Coughenour of the U.S. District Court for the Western District of Washington State (Seattle Division) issued the first Temporary Restraining Order at issue. Four particular Attorneys General (of Washington, Oregon, Illinois and Arizona) brought this action. State of Washington v. Trump, 2:25-cv-00127. According to NewsNation, the judge became terrifically angry with the Justice Department attorneys for trying to defend the EO.

Trump vowed to appeal. Normally one does not appeal Temporary Restraining Orders, but Trump didn’t have to wait long. On February 6, Judge Coughenour issued a preliminary injunction, which is appealable. Trump did appeal. State of Washington, et al., v. Trump, et al., 25-807, in the Court of Appeals for the Ninth Judicial Circuit. Then a three-judge panel (William C. Canby, Milan D. Smith, and Danielle J. Forrest) voted 3-0 not to grant an emergency stay of Judge Coughenour’s injunction. In her concurrence, Judge Forrest agreed that emergency relief was not appropriate. But she encouraged the Court to expedite the hearing and oral argument process. She further observed that she and her colleagues constituted a motions panel, not the merits panel that alone could do the case justice.

Separately, a judge in the New Hampshire case has issued his own injunction. A similar injunction has come down in Massachusetts.

A new case in New Hampshire

Late in June 2025 the Supreme Court curtailed the use of “universal injunctions.” The Court held that, if the plaintiffs in the New Hampshire case wanted a universal injunction, they should file a class action. That ruling virtually destroyed the original New Hampshire case, but left the Washington case standing. (States can ask for universal injunctions, if they have Article III standing.)

So the American Civil Liberties Union filed a new case on behalf of five babies named Barbara, Susan, Sarah, Matthew and Mark. The case alleged harm from the denial of birthright citizenship and also asked for certification as a class. Barbara v. Trump, 1:25-cv-00244. The case came before the same judge (Joseph N. LaPlante) as the original New Hampshire case.

As before, Judge LaPlante issued a preliminary injunction against Trump’s EO. Because he now had a class action before him, the injunction stood. His order came down on July 10.

The Trump administration appealed on September 10 to the Court of Appeals for the First Circuit. Barbara v. Trump, docket 25-1861. But the administration didn’t wait for the Appeals Court to act. Instead they filed a petition for review-before-judgment with the Supreme Court on September 26. Three days later they filed for review in the Washington case.

The latest Supreme Court action

Now the Supreme Court has granted review in the Washington case and the new New Hampshire case. Trump v. Washington, 25-364, and Trump v. Barbara, 25-365.

D. John Sauer, Solicitor General of the United States, filed the petition on September 29, 2025.

In his filing he cited 8 USC Section 1401, which states who are “nationals and citizens of the United States at birth.” Sauer bases his case on paragraph (a):

a person born in the United States, and subject to the jurisdiction thereof.

8 USC 1401 does not define the phrase “subject to the jurisdiction thereof.” But paragraph (b) gives a clue:

a person born in the United States to a member of an Indian, Eskimo. Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property.

In modern parlance “Indian” means “Beringian” and “Eskimo” means “Inuit.” Such a person is subject to the regulatory reach of U.S. law. But if any Beringian, Inuit, or Aleut were subject to U.S. jurisdiction, why bother listing them separately?

Sauer goes on to say:

The Citizenship Clause of the Fourteenth Amendment was adopted to grant citizenship to newly freed slaves and their children—not to the children of temporary visitors or illegal aliens.

Sauer cites two cases to back this up: Slaughter-house Cases, 16 Wall. 36, 71-74 (1873), and Elk v. Wilkins, 112 U.S. 94, 101 (1884). He acknowledged the Wong finding that children of lawful permanent residents were citizens. But he then said:

[L]ong after the Clause’s adoption, the mistaken view that birth on U.S. territory confers citizenship on anyone subject to the regulatory reach of U.S. law became pervasive, with destructive consequences… [I]n the 20th century, the Executive Branch came to misread the Clause as granting citizenship to nearly everyone born in the United States—even to children of temporarily present aliens or illegal aliens.

Judges Coughenour and LaPlante clearly believe that “subject to the jurisdiction” means “within regulatory reach.”

Scope of opinion on birthright citizenship

Happily, Sauer includes, as appendices to his petition, the full opinions of the Court of Appeals for the Ninth Circuit, and of Judge Coughenour. (Sauer’s filing in the Barbara case contains only Judge LaPlante’s order; the First Circuit has not definitively acted.)

The Ninth Circuit opinion flatly repeats the error judges, and Presidents, have been making since the Sixties. Actually, error might be too charitable a word, especially as regards leftist judges – and the Presidents who appoint them. Lyndon Baines Johnson was certainly a loyal servant of the Deep State – or an opportunistic one. One might say of him, more accurately, that he thought he was the Deep State, the same as King Louis XIV of France thought he was the State itself.

In any event, LBJ is the first President to promote the absolutism of jus soli. Or he is the best candidate for that dubious distinction. Either way, the motives are plain: to replace the hard-working native-born demographics with a class of mendicants. Alexis de Tocqueville warned that our republic would fail when the people discovered they could vote themselves government largesse. But even he never dreamed that corrupt Presidents and Congresses would import a new electorate who would vote that way!

Sauer describes all the harms of birthright citizenship:

1. Incentive for illegal migration,
2. National security threat,
3. Birth tourism, and
4. Degradation of the meaning of citizenship.

Then he presents the contrary opinions. All he need do in the end is say to the Court: “See what I mean?”

Court alignment

The Barbara docket has a clear indication that the Supreme Court granted review on December 5, 2025. The Washington docket has no such entry. But the CBS Report says the Court did grant review in that case; their source for that assertion remains unclear. Both cases did come before the same administrative conference.

By the Supreme Court’s rules, four Justices can force the rest of the Court to accept a petition for review. Grants of review normally go unsigned, as did this one. CNAV ventures to guess that all three Originalists (Alito, Gorsuch and Thomas JJ) voted to grant review. Likewise, all three Equitarians (Jackson, Kagan, and Sotomayor JJ) voted not to.

That leaves Roberts CJ and Barrett and Kavanaugh JJ. Which of these voted for the petition? CNAV believes Brett Kanavaugh voted for it. Amy Coney Barrett has a tendency (not absolute) to sympathize with families with small children, in a belief in their inherent innocence. But she’s still the one who publicly chastened Ketanji Brown Jackson for her apparent support of an “imperial judiciary.”

And Roberts? He might be reluctant to upend nearly a century of Court practice. Alito and Thomas JJ almost had to drag him kicking and screaming to acceptance of their reasoning in Dobbs v. Jackson Women’s.

Sauer clearly knew whom he had to impress. Roberts, Barrett and Kavanaugh run that Court, because they almost always cast deciding votes Alito, Gorsuch and Thomas will take his side; Jackson, Kagan and Sotomayor never will.

Next arguments on birthright citizenship

Immediately after Sauer filed his dual petitions, several organizations submitted friend-of-the-court briefs. They include:

• Federation of Americans for Immigration Reform (which always has wanted to slow immigration down),
• Christian Family Coalition of Florida,
• The Center for Constitutional Jurisprudence at the Claremont Institute, and
• America’s Future.

All these briefs support the petition, on the grounds that Solicitor General Sauer stated. Specifically, “subject to the jurisdiction” means more than “subject to the regulatory reach of the law.” It primarily means subject to political, not merely regulatory, jurisdiction. Political jurisdiction requires permission to stay (a paraphrase of language in Wong), and domicile. Domicile means a place of permanent residence, and implies a full intent to stay, with permission.

Every civilization has had some form of banishment as either a punishment or a default relationship between that civilization and any given individual. Ancient city-states banished people all the time. Consider, for example, Athenian ostrakons or Roman orders “forbidding fire and water within x hundred miles.” So no “natural right of immigration” can exist.

The Texas Nationalist Movement will no doubt be watching. They haven’t said a word; it’s too soon. But basic sovereignty lies at the heart of the sentiment for Texas independence. If the Supreme Court actually upholds unrestricted birthright citizenship, they will fuel that fire. But that’s a political question, not a legal one.

This case, even more than the entire 2021 Term, will be an intellectual feast for civics students at all levels.