Supreme Court Agrees to Consider Birthright Citizenship (This Time for Real)

Today the Supreme Court granted certiorari in four additional cases. Most notably, the justices granted the Trump Administration’s petition for certiorari before judgment in Trump v. Barbara, one of the two petitions submitted by the Trump Administration asking the Court to weigh in on birthright citizenship. (The Court took no action on the other petition in Trump v. Washington perhaps because that case also involves standing issues the Court would prefer to address separately.)

The question presented, as set forth in the Solicitor General’s brief provides as follows:

The Citizenship Clause of the Fourteenth Amendment provides that those “born * * * in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. U.S. Const. Amend. XIV, § 1. The Clause was adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens. On January 20, 2025, President Trump issued Executive Order No. 14,160, Protecting the Meaning and Value of American Citizenship, which restores the original meaning of the Citizenship Clause and provides, on a prospective basis only, that children of temporary visitors and illegal aliens are not U.S. citizens by birth. The Citizenship Order directs federal agencies not to issue or accept citizenship documents for such children born more than 30 days after the Order’s effective date.

The question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.

Note that by incorporating the statutory question the question presented gives the Court a relatively easy way to resolve this case without resolving the constitutional question.

Whether or not one believes that the Trump Administration’s effort to narrow the scope of birthright citizenship is consistent with the original public meaning of the Fourteenth Amendment (and I do not), it is difficult to argue that the Executive Order is consistent with 8 U.S.C. 1401(a) as it has been traditionally interpreted, understood, and applied. That is, even if one believes that constitutional birthright citizenship is narrower than the conventional understanding, or that Congress has the power to define it more narrowly by limiting the scope of who is born “subject to the jurisdiction” of the United States, Congress has not done so, and the Executive lacks any power to redefine the scope of birthright citizenship unilaterally.

But wait, some may argue, doesn’t the statute merely repeat the language of the Fourteenth Amendment? And doesn’t that mean they should mean the same thing? Yes it is the same language, but the public meaning of the statute, when enacted, need not have been the same as the public meaning of the earlier-adopted constitutional provision. Moreover, insofar as all three branches have consistently interpreted the statutory language to provide for the conventional, broad understanding of birthright citizenship, that interpretation would be entitled to statutory stare decisis even if one were to believe either that the Fourteenth Amendment did not provide for birthright citizenship as broadly as most assume or that Congress has the power to narrow the scope of birthright citizenship through legislation.

What this means is that the Court could simply hold that the Executive Order conflicts with the longstanding interpretation of 8 U.S.C. 1401(a) and defer to another day whether Congress could enact legislation adopting a narrower rule. If the justices are looking for a way to avoid a splintered opinion in Barbara, this approach may be an attractive route to take.

In other news, the Court took no action on any of the Second Amendment cases that had been relisted.

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