Once More the Supreme Court Upholds Birthright Citizenship: Trump v. Barbara
For those of us who are both Supreme Court watchers and World Cup fans, there was an odd convergence of worlds with the hand-down of Trump v. Barbara on June 30, 2026, the last day of the Supreme Court’s annual Term, and the United States Men’s National Soccer Team’s trials and tribulations that took place during the following week. With a red card suspension slated to sideline the U.S. Team’s star forward Folarin Balogun from their Round of 16 World Cup match against Belgium, President Donald Trump picked up the phone to call his friend Gianni Infantino, head of FIFA, the World Cup organizer. By President Trump’s own telling, he urged Infantino to set aside Balogun’s suspension and let him play. Hours later, that is precisely what happened. The President then posted on Truth Social, “Thank you to FIFA for doing what was right, and reversing a great injustice!” The irony was more than a little rich.
Balogun was born in New York City in 2001 when his mother traveled there to visit her sister and was then refused boarding on her return flight due to her advanced pregnancy. But under Executive Order 14160, which President Trump issued as his first act in office of his second White House term on January 20, 2025, the circumstances of Balogun’s birth would render him ineligible for United States citizenship. Specifically, President Trump’s order declared that persons born on United States soil to parents present here as tourists—like Balogun’s mother—or present without proper immigration authorization to live in the United States should no longer enjoy the privilege of birthright citizenship.
Once issued, the President’s order came under fire almost immediately. Numerous lawsuits challenged its legality on various grounds, including that the order violated Congress’s citizenship statute and the Fourteenth Amendment’s Citizenship Clause.
When the Supreme Court finally reached the merits of these challenges in Barbara,[1] birthright citizenship as a constitutional principal survived by one vote—and only one vote. The Roberts Court managed to divide 5-4 on a constitutional question when text, history, tradition, and precedent all supported the majority view. And yet, four Supreme Court justices agreed wholly or in part with the Trump administration’s position that the Fourteenth Amendment does not recognize birthright citizenship. In addition, despite the fact that Solicitor General John Sauer stated at oral argument that the administration intended to apply the order only prospectively, Justice Samuel Alito went out of his way in his dissenting opinion to go further. Because in his view the original meaning of the Fourteenth Amendment did not recognize birthright citizenship, persons falling beyond the narrower definition of citizenship he recognized—including the children of persons he called “birth tourists”—should have their citizenship retroactively stripped unless Congress intervenes. Never mind the red card—if Justice Alito had his way, Balogun would have been kicked off the U.S. Team mid-World Cup as a non-American.
That the Supreme Court divided in Barbara 5-4 on the meaning of the Fourteenth Amendment’s Citizenship Clause is nothing short of astounding. Over one hundred years ago at the end of the nineteenth century, a Supreme Court that in other cases upheld Jim Crow recognized birthright citizenship in United States v. Wong Kim Ark by a vote of 6-2. Notably, Justice John Marshall Harlan, one of the two dissenters in the earlier decision, later expressed in a speech that he regretted his vote in the case. And, as I pointed out in an amicus brief I filed in Barbara, during World War II, the Supreme Court declined to revisit Wong Kim Ark. It did so, moreover, even when faced with a challenge to the birthright citizenship of Japanese Americans whom the government at the time was incarcerating en masse based solely on their ethnicity.[2] This was the same Court that within weeks of denying review of such a challenge unanimously sanctioned the government’s military policies targeting Japanese Americans resulting in incarceration in Hirabayashi v. United States.[3]
In Justice Alito’s view, Barbara “is one of the most important decisions in the history of the Court.” I do not disagree. That is why, I submit, the Court’s 5-4 vote is deeply regrettable. Regardless of one's view on which position should have prevailed, one would hope we could all agree that having a settled rule on the foundational question of who is and is not a citizen at birth is immensely important. Yet, in the immediate aftermath of the Court announcing its decision in Barbara, Vice President J.D. Vance went on national television to say, “We’ve just gotta keep fighting.” And so, even as the Supreme Court once again reaffirmed birthright citizenship, American society may remain deeply divided over what the rule should be for who knows how long. That this may happen is all the more unfortunate because the Court got Barbara right.
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The Fourteenth Amendment’s Citizenship Clause reads, “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 Wong Kim Ark, the Court held that the Clause recognizes birthright citizenship based on the common law by “affirm[ing] the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country.” This holding provided the roadmap for Chief Justice John Roberts’s opinion for the Court in Barbara, which reaffirmed the English common law rule of jus soli (right of the soil), or birthright citizenship. The common law rule recognized that a child “born within the [sovereign’s] dominions” automatically was understood to owe “allegiance” to the sovereign, no matter how fleeting their presence. Early American law adopted jus soli, he explained—like so much else of the common law—along with its common law exceptions (such as for the children of visiting diplomats) and the uniquely American exception for Native Americans. The Fourteenth Amendment, the Chief Justice added, rebuked Dred Scott v. Sanford’s erroneous embrace of the rule of citizenship by blood, wielded in that case by Chief Justice Roger Taney to deny citizenship to individuals descended from enslaved persons. The Court majority next detailed how, to achieve its goal, the Citizenship Clause included sweeping text intended to reach all persons subordinate to the power of the United States—in other words, everyone born on United States soil except those falling into the longstanding exceptions. Had the drafters intended to include a domicile rule or a more limited version of allegiance than that which English common law treated as automatic at birth, the Court observed, surely they would have indicated as much in the text. Finally, after marching through historical evidence and precedent to find extensive support for the common law rule as recognized by Wong Kim Ark, the Chief Justice asserted that this was one of those cases in which text, history, tradition, and precedent all point in the same direction—here, to instruct that children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States for purposes of the Fourteenth Amendment and may lay claim to the privileges of United States citizenship.
When the dust settled, however, four justices disagreed with the Chief Justice in whole or in part on the constitutional question at issue.
To begin, there is Justice Brett Kavanaugh’s opinion concurring in the judgment and dissenting in part. Justice Kavanaugh got the benefit of being reported in the popular press for joining the majority in upholding birthright citizenship, but once the reader looked under the hood, it became clear that the headlines fell short. After chastising the majority for reaching beyond the citizenship statute to decide the constitutional question, he did the very same thing, opining that the Fourteenth Amendment does not recognize birthright citizenship for the children of temporary visitors to the United States or undocumented immigrants.
Next, dissenting in full, Justice Clarence Thomas and Justice Alito each wrote opinions stating their jointly held view that the Fourteenth Amendment only recognizes citizenship for persons born to parents legally “domiciled” in the United States. Justice Thomas’s 91-page dissent (joined by Justice Neil Gorsuch) laid out for the reader what he asserted was an extensive historical record supported a domicile rule, all as explanation for the fact that the term domicile is nowhere to be found in the Amendment’s text itself. Justice Thomas further argued that a domicile rule was central to the Wong Kim Ark holding and requires legal presence with an intent to remain within a jurisdiction. He did not, however, discuss the inconvenient fact that Wong Kim Ark’s parents were described by the majority opinion in that case as “subjects of the Emperor of China” who had subsequently returned to China by the time of the decision. Further, neither Justice Thomas nor Justice Alito confronted the fact that in other contexts, such as in resolving disputes over diversity jurisdiction in civil lawsuits filed in federal court, determining domicile when disputed is an incredibly fact-intensive endeavor that often requires lengthy trials. Exactly how would such a rule be implemented to render citizenship determinations with respect to the over 3.5 million babies born in the United States each year?
Justice Thomas’s dissent also staked out the position that the Citizenship Clause should be read as a specific reaction to Dred Scott and the plight of the newly freed enslaved persons, while sweeping no further. This argument provoked a concurring opinion by Justice Ketanji Brown Jackson, joined in part by Justice Sonia Sotomayor. The crux of the concurrence was to highlight that Justice Thomas’s argument was in considerable tension with his longstanding position in race cases that the Fourteenth Amendment was “colorblind.”
In his separate dissent, Justice Alito submitted that the majority’s holding “degrade[s]” United States citizenship. In his view, “the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.” Time and again, Justice Alito stressed that to be a citizen, one cannot owe allegiance to any other country at birth. “A great many persons who are born here to illegal immigrant parents fail this test because at birth they are automatically made nationals of their parents’ native country and, as a result, incur duties to that country.” He then listed three—and only three—countries to prove his point: Mexico, Guatemala, and El Salvador. He explained a child born to Mexican immigrants, for example, “can become a Mexican national at birth and acquires certain duties to the government.” Of course, that is true for any child born to a Mexican parent in the United States—whether that parent immigrated here through proper channels or not. It was also true, to take but one example, of children born to Italian immigrants in the United States during World War II because Italian law treated offspring born to an Italian citizen anywhere in the world as Italian. When born on United States soil, however, such persons also were recognized as United States citizens. The broader point is this: the potential for dual allegiances as conceived by Justice Alito is true of any child born to any immigrant or dual citizen in this country.
Rounding out the dissenters, Justice Gorsuch agreed with Justices Thomas and Alito that domicile should be the rule when interpreting the Citizenship Clause. He therefore agreed further that children born on United States soil to temporary visitors fall outside the Fourteenth Amendment’s citizenship promise. But, he explained, he “harbor[s] doubts” as to whether such a rule excludes individuals born to persons who come to the United States with the intent to make their permanent home here despite lacking appropriate immigration documentation. While reserving judgment on that question, Justice Gorsuch nonetheless joined camp with the dissenters because the lawsuits at bar had been brought as facial challenges, which meant under the Court’s case law that any constitutional application of President Trump’s order saved it, at least for the time being.
The end result: a Court that ruled 6-3 that President Trump’s birthright citizenship order violates Congress’s citizenship statute and one that ruled 5-4 the order violates the Constitution.
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The animating idea behind the Chief Justice’s opinion—that American law imported a common law rule—is hardly revolutionary. Indeed, over two centuries of Supreme Court case law underscore the pervasive influence of the common law on American law. The Constitution itself expressly invokes the common law in its text and incorporates common law terms that can only be understood by reference to their common law origins. This case, in short, was not hard. Sadly, what could have—and should have—been a shining moment à la Brown v. Board of Education for the Supreme Court to hand down a unanimous decision reaffirming birthright citizenship was not meant to be. Despite the fact that the Court got it right, the divided vote in Trump v. Barbara may only serve to fan the flames of a continuing national divide over who should enjoy the privileges of United States citizenship. And that is a real shame.[4]
Copyright © 2026 Amanda L. Tyler, Thomas David & Judith Swope Clark Professor of Constitutional Law.
[1]. In the previous Term, the Court did not reach the merits and instead addressed issues implicated in the case regarding the scope of relief lower courts could order in the various challenges. See Trump v. CASA, Inc., 606 U.S. 831 (2025).
[2]. See Regan v. King, 134 F.2d 413 (9th Cir. 1943), cert. denied, 319 U.S. 753 (1943).
[3]. For more details, see Amanda L. Tyler, The Supreme Court Has Heard This One Before, Atlantic (Mar. 30, 2026).
[4]. So is the fact that Folarin Balogun’s citizenship status made headlines during the World Cup.
