On April 1, the Supreme Court of the United States heard oral arguments from both sides of the ongoing case, Trump v. Barbara. The history of the case goes back to Jan. 20, 2025, when President Trump signed Executive Order 14160. Titled “protecting the meaning and value of American citizenship,” this order challenged the citizenship clause of the 14th Amendment to the Constitution by denying citizenship to individuals whose parents were “unlawfully present” at the time of their birth, even if the child was born in the United States.
The executive order was soon challenged in the lower courts, with ten lawsuits brought against Trump by various state attorneys general and civil liberty groups. After federal judges issued preliminary injunctions to block the executive order, the Supreme Court agreed to hear Trump v. CASA on April 17, 2025. On June 27, the court ruled 6-3 that the federal judges’ universal injunctions exceeded the authority given to the federal court by Congress, protecting the executive order from lawsuits in the lower courts.
On the day Trump v. CASA was decided, the American Civil Liberties Union (ACLU) filed Trump v. Barbara in the United States district court for New Hampshire. The suit was filed as a class action that consolidated multiple parties into one, with Barbara, a Honduran citizen, as their representative. The district court sided with the ACLU on July 10 and the Supreme Court decided to hear the case. President Trump was represented by U.S. solicitor general D. John Sauer and the ACLU by their legal director Cecillia Wang. Wang herself gained U.S. citizenship through birthright citizenship.
The two-hour oral argument began with Sauer’s argument, where he argued the clause, “and subject to the jurisdiction thereof,” of the 14th Amendment requires the child’s direct allegiance, which is not possible unless their parent(s) has established a legal domicile in the U.S. Other arguments included the claim that “birth tourism” is a related issue, to which Chief Justice John Roberts asked, “Having said all that [birth tourism is not common], you do agree that that has no impact on the legal analysis before us?”
Sauer pushed back, arguing that we live in a new world, to which Roberts said, “Well, it’s a new world. It’s the same Constitution.” Justice Sonia Sotomayor also pushed back on Sauer’s argument, referring to the 1957 court of appeals case, United States ex rel. Hintopoulos v. Shaughnessy, which stated that the child of illegal aliens is “of course, an American citizen by birth.”
Justice Neil Gorsuch was also skeptical of Sauer’s argument that the 14th Amendment requires the parent’s legal domicile, asking “[W]hose domicile . . . matters? . . . [I]s it the husband? Is it the wife? What if they’re unmarried?”
From the other side, Wang argued that the 14th Amendment guarantees citizenship to children born on U.S. soil regardless of their parental status. Justice Samuel Alito asked Wang whether the citizenship “test” of the 14th Amendment is the same as the test in the 1866 Civil Rights Act, where birthright citizenship is limited to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.” Wang argued that the two enactments are identical in meaning despite their difference in text. This prompted Alito’s question, “then why not focus on the 1866 language?” Justice Brett Kavanaugh stepped in to say that the two texts are “on their face different,” referring to the decision in Snyder v. United States (2023) where Kavanaugh stated that “amended language may well signal amended meaning.”
Roberts’ point that we may live in a new world with the same constitution makes us think about the role of a constitution. Every now and then, there are leaders who claim that drastic measures are necessary because the world has changed too much, prior to or during their time in power. Trump fits this description with his claim that immigration-related issues have become more problematic than ever before, justifying drastic measures such as his executive order from last year. The Constitution, while it is amendable and has been amended, remains as a constant in the midst of these extraordinary claims. If the producers of such exceptional claims can also change the interpretation of the constitution, the role of the constitution will diminish. The 14th Amendment is unambiguous: “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.” Birthright citizenship is an unalienable right guaranteed by the Constitution.
~ Benjamin Ha `27
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