Trump v. Barbara: The Supreme Court’s Attempt to Define Who “We The People” Are

Rarely does a president attend court hearings. This was precisely what happened on April 1st as the Supreme Court listened to over two hours of oral arguments regarding birthright citizenship. The case, Trump v. Barbara will determine whether President Trump’s executive order ending birthright citizenship for children born to parents who are in the country temporarily or illegally is constitutional under the citizenship clause of the Fourteenth Amendment. The case was first filed in the US District Court for New Hampshire by the ACLU. The court later issued an injunction on July 10th blocking the enforcement of Trump's executive order. The case was then appealed directly to the Supreme Court on September 26th, 2025 before the District Court of the First Circuit had issued a ruling. All lower courts have ruled against the government including the First Circuit Court of Appeals on this matter.

The Fourteenth Amendment dates back to 1868 and was a key step towards guaranteeing equal citizenship rights to freed slaves after the American Civil War. In particular, the Citizenship Clause was intended to overturn the Supreme Court’s 1857 decision in Dred Scott v. Sandford. The clause states that, “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”. This infamous case held that a Black person was not entitled to citizenship if their ancestors had been brought into the country as slaves.

Solicitor General John Sauer argued for the Government and Cecillia Wang, the National Legal Director for the ACLU, argued on behalf of affected children and their families. The plaintiffs are several affected family and their children including an anonymous petitioner named "Barbara." The ACLU along with several other organizations such as the Legal Defense Fund and Democracy Defenders Fund are serving as counsel for the respondents in this case.

The Federal Government’s case hinges on the language of Section One of the Fourteenth. Sauer claims that this clause should be interpreted as requiring permanent residence and national allegiance from the parents of the child in question, something that neither illegal immigrants nor temporary visitors have. Sauer placed special emphasis on the first point noting that the text of section one of the 14th Amendment is very clear that citizens must be domiciled in the “state in which they reside.” As Chief Justice Roberts pointed out, however, Sauer’s examples mostly related to fringe groups such as the children of ambassadors and occupying hostile forces, groups which he intended to be points of comparison in citizenship status to illegal immigrants. Justice Roberts questioned whether special cases like these be applied to a much larger swath of the population. In response, Sauer pointed to another 19th -century statute, the Civil Rights Act of 1866, which held a narrower classification of legal citizens as those who are “not subject to a foreign power.” Only individuals who entered the country and lived there with the intent to adopt the United States as the primary "power" governing them counted under this standard. Given that Indians at the time fell under the jurisdiction of the United States, even if they weren't citizens in the traditional sense, they fit this category as well. His rationale for why this language did make it into the final draft of the amendment was the necessity of including “Indians not taxed”. To counter this claim, Justice Sotomayor pointed to Wong Kim Ark v. United States (1898), which suggested that even residents in the United States who don’t technically hold citizenship are made to obey its laws while they are “in the jurisdiction thereof.” Sotomayor further suggested that the United States had no jurisdictional control over the children of diplomats or British occupying forces in Maine. Following this comment, Sauer and Sotomayor engaged in a colloquy about the United States’s ability to hold jurisdiction over certain groups, such as Native Americans. While Sauer was committed to viewing the situation historically, observing that Native Americans in the 19th century were viewed as subject to the jurisdiction of the US, Sotomayor alluded to the ongoing debate on the matter. Sotomayor motioned to the fact that at the time, there was a question at the time of whether tribal Indians ought to be treated the same way as foreign diplomats or had a unique status. This distinction was invalidated by the Indian Citizenship Act of 1924 which granted full citizenship rights to Native Americans.

Wang offered a far broader reading claiming that the clause only excludes the children of hostile occupying forces and foreign diplomats. Her arguments noted that the 14th Amendment would have included a condition against granting citizenship to all children born within the country if its writers had desired it to. More importantly, however, illegal immigrants, she argued, come to the country with every intent to remain and should thus be viewed as taking up domicile within the country. As to the question of “birth tourism,” Wang pushed back against the government’s claim that birthright citizenship offered a strong incentive to indulge in this practice, pointing out that federal statute already bans the issuance of tourist visas on those grounds. Furthermore, Wang also motioned to federal immigration statute 8 U.S.C. § 1401 (1940) which uses the same language as the 14th amendment to state that anyone born in the U.S. counts as a U.S. citizen. This language, she insists, would have been understood by Congress when it was written in 1940 to include, as it states, all children born in the US. Justice Thomas pressed Ms. Wang on her claims about the five groups who constituted exceptions to this rule under the notion of “extraterritoriality.” Extraterritoriality suggests that an individual who has ties to another sovereign nation besides the United States may provide an exception to this rule. This is why the children of diplomats or invaders do not count as US citizens even if they were born within the country.

Given the skepticism raised by multiple Justices, right and left-leaning alike, it seems as if the court will decide against the government. The case is currently under review by the court, and the decision is expected to come out in June or July. After all, Sauer’s arguments do raise some rather questionable points. In particular, illegal aliens often flee to the United States because the conditions of their own countries are intolerable. If the United States overturns the right to birthright citizenship for illegal immigrants, where will they go? Moreover, if the Supreme Court sides with the government, how might it affect other groups, immigrants and otherwise, in this country?