Birthright Citizenship Reaches The Supreme Court | EXPLAINER
Sources
“Red Flag Alert - Anti-Trans Genocide in the USA - #3” Lemkin Institute for Genocide Prevention and Human Security. March 11, 2026. https://www.lemkininstitute.com/red-flag-alerts/red-flag-alert---anti-trans-genocide-in-the-usa---%233
Trans Legislation Tracker, https://translegislation.com
Chiles v. Salazar (Conversion Therapy Case) https://supreme.justia.com/cases/federal/us/607/24-539/
Desai, Samarth. “Birthright Citizenship: Originalism 101.” SCOTUSblog, March 12, 2026. https://www.scotusblog.com/2026/03/birthright-citizenship-originalism-101/.
Hernández, César Cuauhtémoc García. “Birthright Citizenship and American Exceptionalism.” SCOTUSblog, November 19, 2025. https://www.scotusblog.com/2025/11/birthright-citizenship-and-american-exceptionalism/.
Hernández, César Cuauhtémoc García. “In Birthright Citizenship Fight, Justice Department Selectively Interprets the Original Meaning of the Citizenship Clause.” SCOTUSblog, February 5, 2026. https://www.scotusblog.com/2026/02/in-birthright-citizenship-fight-justice-department-selectively-interprets-the-original-meaning-of-the-citizenship-clause/.
Howe, Amy. “A Guide to Some of the Briefs in Support of Ending Birthright Citizenship.” SCOTUSblog, February 13, 2026. https://www.scotusblog.com/2026/02/a-guide-to-some-of-the-briefs-in-support-of-ending-birthright-citizenship/.
Howe, Amy. “A History of Birthright Citizenship at the Supreme Court.” SCOTUSblog, February 5, 2025. https://www.scotusblog.com/2025/02/a-history-of-birthright-citizenship-at-the-supreme-court/.
Howe, Amy. “The Key Arguments in the Birthright Citizenship Case.” SCOTUSblog, March 27, 2026. https://www.scotusblog.com/2026/03/the-key-arguments-in-the-birthright-citizenship-case/.
Kim, Juliana. “Some Critics of Birthright Citizenship Say It’s a Fraud Issue. What Does That Mean?” National. NPR, March 29, 2026. https://www.npr.org/2026/03/29/nx-s1-5761340/birth-tourism-citizenship-supreme-court-case.
Montanaro, Domenico. “As Birthright Citizenship Goes to Supreme Court, Here’s How Americans Feel about It.” Politics. NPR, March 30, 2026. https://www.npr.org/2026/03/30/nx-s1-5760983/birthright-citizenship-public-opinion-supreme-court-arguments.
Ross, Akhil and Vikram Amar, Amad. “Birthright Citizenship: An Empirical Analysis of Supposedly Originalist Briefs.” SCOTUSblog, March 4, 2026. https://www.scotusblog.com/2026/03/birthright-citizenship-an-empirical-analysis-of-supposedly-originalist-briefs/.
Trump, Donald. “Protecting The Meaning And Value Of American Citizenship.” The White House, January 21, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/.
“Trump v. Barbara (Birthright Citizenship).” SCOTUSblog, n.d. Accessed March 30, 2026. https://www.scotusblog.com/cases/case-files/trump-v-barbara/.
Tyler, Amanda L. “The Supreme Court Has Heard This One Before.” The Atlantic, March 30, 2026. https://www.theatlantic.com/ideas/2026/03/supreme-court-birthright-citizenship/686600/.
Transcript
Hi it’s Tuesday, March 31st, 2026, you’re tuned into Why, America? I’m your lawyer friend Leeja Miller. Tomorrow, the Supreme Court will hear oral arguments on one of Trump’s most controversial policies, if you could even identify what his “most controversial” acts have been in the first year. But this one is definitely high on the list: ending birthright citizenship, the constitutional guarantee most have taken for granted for centuries that confirms we have a right to US citizenship if we are born on US soil. On his first day in office, Trump attempted to rewrite the constitution by Executive Order and nullify birthright citizenship. Unfortunately for him, that’s not how this country functions, so that order has been blocked by various courts throughout the country as very obviously unconstitutional. Not THAT obviously, it would appear, because the Supreme Court has decided to entertain the fringe legal theory by hearing oral arguments on the case, Trump v. Barbara, tomorrow. Today we’ll discuss the sordid colonial history of birthright citizenship, the Trump administration’s grand plan to do away with it, and how the Supreme Court could royally fuck all of this up.
But first, when I asked all of you yesterday what topics are top of mind and questions you have about this week’s headlines, a good number of people asked me to talk about the influx of antitrans legislation happening across the country. And yet whenever I make a video dedicated to trans rights, no one fucking watches it. So I’m putting it in here to make sure it gets seen and heard. The Lemkin Institute for Genocide Prevention issued its third Red Flag Alert for anti-trans genocide in the USA earlier this month. According to their report, quote “2025 was the sixth consecutive record-breaking year for the number of anti-trans bills considered across the country … The Administration has moved from identifying transgender people as a threat to the family and to the nation’s military prowess to claiming that transgender people constitute a cosmic threat to the spiritual health of the nation and the greatest direct threat to U.S. national security in the world. Given these ideological developments, especially coupled with the increasingly hostile and draconian legislation against trans identities, the Lemkin Institute believes that the United States is squarely within the early to middle stages of a genocidal process against trans people, the goal of which is to completely erase transgender people not only from public life but also from existence in the U.S. and globally.”
“In late January of 2026, the Kansas State Legislature passed a bathroom ban that includes a bounty for Americans who hunt and find trans people using the appropriate bathroom for their gender; anyone who encounters a suspected trans person in a bathroom can launch a civil suit against that person.” The bill was passed over the governor’s veto.
Three days ago, Idaho passed a similar bill. Five days ago, members of the Ohio House voted to advance the state's ban on public drag and gender performance. According to the Trans Legislation Tracker, this year 747 bills are being considered that would negatively impact trans and gender non-conforming people, and that number is expected to grow. So far in 2026 alone 23 anti-trans bills have been passed across the country. These are headlines that we’ve grown somewhat desensitized to, as a whole, because of years of “bathroom bills” that often went nowhere. But the number of bills are growing, the attacks against trans people, the designation of “gender extremism” as a form of domestic terrorism, the use of trans folks as a scapegoat for anything and everything by this regime is deeply deeply concerning and is creating an environment ripe for abuse in an already really vulnerable community. So look out for your trans friends and community members because they’re fucking going through it and it’s often overlooked so I just wanted to say I see you.
And relatedly, at the Supreme Court yesterday, the court voted 8 to 1 against Colorado’s ban on conversion therapy, finding in favor of a talk therapist who claimed her first amendment rights were being infringed upon when Colorado banned her from engaging in conversion therapy attempting to help heal people of their gayness. 8 to 1! Justice Katanji Brown Jackson was the lone dissent, she argued that incidental infringement on free speech in the context of a state’s right to regulate healthcare is acceptable under the constitution. I’ve linked the full case in the sources, which are linked in the description below.
And tomorrow the Supreme Court will hear oral arguments in the landmark birthright citizenship case, the one that’s been on our minds since literally day one of the second Trump administration at which time Trump decided to attempt to rewrite the US Constitution and 150 years of judicial interpretation in a single Executive Order.
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On January 20th, 2025, his first day back in the White House, Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship.” The one thing they got right is quoting directly from the 14th Amendment, which was passed in the wake of the Civil War and states “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.” Now the text is pretty clear, right? But the main issue here is that clause “subject to the jurisdiction thereof.” The question is when is someone subject to the jurisdiction of the United States? We have the answer to that, and I’ll go over that, but despite the Supreme Court having answered that question pretty thoroughly over the last 150 years, Trump’s EO just creates a new law around who is subject to the jurisdiction of the US and therefore deserves citizenship. The order says “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.” Reminder that’s not what the US Constitution says, that’s not what the Supreme Court says, there’s no law that says that. Trump made that up. And a few of you asked me what weight do Presidential orders even have? Are they laws? And that depends on the nature of the order. If the order is dealing with things within the executive branch, over which Trump has authority, often these types of executive orders carry the weight of law, which essentially means they can’t be challenged in court. This order, however, is reinterpreting the US Constitution. That is a job that only the Supreme Court can do. And changing the Constitution is something only the people can do, through Congress and then ratification by the states or by conventions. So this executive order is clearly outside the bounds of his authority. He does not get to say what the Constitution says or means or rewrite it by executive order. Period full stop. But the authors of this executive order know that, they knew it would lead to lawsuits and those lawsuits would result in injunctions, which is exactly what happened so just so we’re clear this executive order is NOT currently in force, it has been blocked by lower courts. And the writers of this executive order knew this would happen and they wrote it anyway because they also knew that it would be challenged and would go up to an incredibly sympathetic Supreme Court and give THEM the chance to do what they ARE allowed to do which is to interpret what the constitution says. It gives them the opportunity to agree with Trump’s interpretation of the constitution. The question now is will they.
To understand what they’re thinking about and how the oral arguments will unfold tomorrow, we have to first understand the Supreme Court’s own precedent on this issue. If you’re ever looking for deeper insight into major upcoming Supreme Court cases, SCOTUSblog is a great resource. I leaned on them heavily for this episode and key posts are linked in my sources. They’ll have a live blog tomorrow during arguments if you want to follow along and get real time insight from experts. Amy Howe wrote a great piece on the history of birthright citizenship at the Supreme Court. The 14th Amendment was passed in part to overrule the 1857 Supreme Court decision in Dred Scott v. Sandford, in which the court held that a black person born to ancestors that were brought to this country and bought and sold as enslaved people was not a US citizen and therefore could not sue in federal court. So what happens when the Supreme Court makes a horrific ruling? Congress can change what the constitution says. And that’s what they did with the 14th Amendment, passed around the same time as the 13th amendment abolishing slavery except for as punishment for a crime and the 15th Amendment guaranteeing the right to vote regardless of skin color or previous condition of servitude. Those three amendments together are known as the reconstruction amendments, passed in the wake of the Civil War. One notable thing about those amendments which attempted to undo so many centuries of horrific abuse, is that the only reason they were able to pass and become part of the Constitution is because they were passed at a time when the Southern states were banned from participating in Congress because of their role in the Civil War. In order to push our country closer to a true pluralistic democracy we literally had to cut out half of it. Just throwing that out there as an idea for today’s Congress, but I digress.
And Trump knows at least a sliver of this history and you know that because he’s defended his birthright citizenship order by saying the 14th Amendment was only ever meant to protect “black babies.” Ok so maybe he has like a preschooler’s grasp on the facts. Anyway.
The next major challenge to birthright citizenship came in 1898 in a case called US v. Wong Kim Ark. Wong Kim Ark was born in San Francisco to Chinese parents. After visiting China in 1895, he was barred from re-entering the United States on the grounds that he was not a US citizen. So he sued and it made it all the way to the Supreme Court, which ruled 6 to 2 that Wong was, indeed, a US citizen. The court noted that the 14th Amendment’s birthright citizenship provision included no language that restricted it to specific skin color or race. The court found that there was an “ancient and fundamental rule of citizenship by birth within the territory… including all children here born of resident aliens.” The dissent in Wong Kim Ark is key here. In it, the court reasoned that Wong could not possibly be fully subject to the jurisdiction of the United States because his parents were Chinese citizens and therefore still had a “duty to the emperor of China.” And because the Chinese Exclusion Act of 1882 barred his parents from becoming US citizens, then the 14th Amendment shouldn’t apply here where the child’s parents could never become citizens themselves. Instead, it should only apply in situations where children are born in the United States to parents permanently located inside the US and who might themselves become citizens. Basically these Chinese parents are too close to the emperor of China and we can’t trust them so we can’t let their kids be citizens because they’ll always be a little loyal to China. Which is a fucking reach but you’ll see how this has been adopted and morphed into present-day arguments by the Trump regime in a minute. Also this was a DISSENT which is not binding precedent.
In 1982, the Supreme Court heard another case related to the “within its jurisdiction” language in the 14th Amendment in a case called Plyler v. Doe. In that case, Texas had passed a law attempting to bar undocumented immigrants from attending public school, which the justices ruled violates the part of the 14th Amendment that bars states from denying to any person within its jurisdiction the equal protection of the laws. This was in 1982 and what do you know it was reported literally this week that Republicans and Stephen Miller are calling for children of undocumented immigrants to be banned from public schools. The outcome of this birthright citizenship case could help their cause if the Supreme Court finds that “within its jurisdiction” means something narrower than what they’ve interpreted it to mean in the past. As Justice William Brennan explained in the Plyler v. Doe opinion back in 1982, the phrase “within its jurisdiction” quote “confirms the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.” And this even includes, the Court ruled back in 1982, people who entered the US illegally. Because the reality is that when you enter a state and this country, no matter what documents you have or do not have, you are subject to its jurisdiction. If you don’t think you are I double dog dare you to get in your uninsured car and speed down the highway for a while. Those laws apply to you, too. So if you are subject to the obligations of the laws of a state or country, you are subject to its jurisdiction, and therefore you also enjoy the equal protection of those laws as well. You don’t get to say that people are considered “subject to the jurisdiction” of certain laws or provisions of the constitution and not others.
So that’s where the Supreme Court precedent on the issue currently stands. And what do you know, the Trump regime in its briefs to the court has relied repeatedly on that Wong Kim Arc dissent, claiming that US-born children of undocumented immigrants and even just temporary visitors to the US aren’t fully “subject to the jurisdiction of the US” because they still owe quote “a measure of allegiance to their parents’ home country.” Which again is a batshit fringe legal theory because whether or not you’re subject to the laws of a country has nothing to do with any allegiance you might have to another country. As a citizen of the United States if you travel to Norway and murder someone you are subject to the criminal laws of the country of Norway and they can do to you what they wish, no matter how much allegiance you feel to the United States of America. To argue otherwise would be fucking nutty. Sorry your honor I’m not actually bound by the criminal statute of Norway because I pledge my allegiance to the United States of America. So I’m not subject to the jurisdiction of your country. Bye!!
But this is essentially what the Trump regime is asking the Supreme Court to find, at least when it comes to the children of immigrants being subject to PROTECTION of the laws, of course. Tomorrow you’ll hear US Solicitor General John Sauer, who you’ll recognize by his truly grating voice, we’re talking RFK Jr levels of unlistenable, and he’ll likely argue a few things. One is that that the 14th Amendment was only ever intended to extend citizenship to formerly enslaved people and their ancestors and no one else. And there are numerous cases where the Supreme Court has acknowledged that that was the main purpose of the Amendment. He’s going to argue that “subject to the jurisdiction” means completely subject to the quote unquote “political jurisdiction” of a country. In his brief he argues that the children of noncitizens “who are domiciled elsewhere, and are only temporarily present in the United States, owe primary allegiance to their parents’ home countries, not the United States.” The same applies to children of undocumented immigrants who “do not owe primary allegiance to the United States by virtue of domicile, for illegal aliens lack the legal capacity to establish domicile here.” He’ll also argue that the current birthright citizenship practices create a powerful incentive for women to travel to the United States to have an anchor baby here in order to get their kids US citizenship.
For their part, the parties challenging Trump’s executive order point to the many centuries of common law tradition that the 14th Amendment was based on which granted citizenship based on place of birth, not parentage. In English law, which much of our system is based on, children born in the English empire were subjects of the king whether or not their parents lived in England permanently. Tomorrow you will likely hear discussions of jus soli versus jus sanguinis. Jus soli means that the right to citizenship derives from the soil upon which you were born and jus sanguinis derives the right to citizenship from your bloodline. And there is an interesting history to this. The Trump regime will likely argue look at all the other similar countries that do not do jus soli that only do jus sanguinis that rely on bloodline not location of birth. Ireland, the UK, Australia, New Zealand, India, all of these places have gotten rid of location-based citizenship in favor of bloodline citizenship. But if you look at other countries in our own hemisphere, like Canada, Mexico, Argentina, and Brazil, and many other places that have a history of being colonized, location-based citizenship is far more common. And it turns out all of it is fucking racist. Location-based citizenship was originally adopted in colonized places as a means for the colonizers to up their numbers to eventually outnumber native populations. Just go to the territory and have a baby there badda bing badda boom you get citizenship, we need white babies in the colonies. But as John Sauer argues in his briefs, “even the United Kingdom, which pioneered near-automatic birthright citizenship, abandoned that approach in 1983.” Coincidentally that shift just HAPPENS to coincide with the end of great britain’s colonial expansion and the beginning of a deeply concerning trend for all the racists–all those colonized places, the people living there now want to move TO Great Britain. So to stop the reverse influx of immigrants, they had to change the rules of their own game. And pointing to what other countries do today is a pretty weak legal argument for how our Supreme Court should interpret the words in OUR constitution.
And I think this merits taking a pause to understand judicial interpretation and how it all works. There are different kinds of interpretation that judges use to try to interpret what the law means. First and fucking foremost you have to read what the law fucking says with its words. That’s a great first step. If you do that in this case you can just stop there because wow we’ve reached our fucking answer. As you’ll hear the challengers to the Trump regime argue tomorrow, jus soli and jus sanguini both existed at the time the 14th Amendment was written. The writers understood what they were and that the US had a long tradition of granting citizenship to white people born on US soil. They would have known that this amendment would extend that same process to “anyone born in the United States and subject to the jurisdiction thereof.” Had they wanted to place limits on bloodlines they would have done so. So if you’re a judge looking to interpret a law, first step is to read the law.
K if that’s not clear, if the plain meaning of the law leaves questions, then you look to the dictionary definitions of the words in the statute. After that you look to what the words meant at the time they were written and how that word was similarly used in other parts of the law or other laws written at that time. Again, when the words were written, Congress would have understood that it would extend birthright citizenship beyond just black people and based on location of birth because that’s what had been happening up until that point.
If there’s still questions, next step is to look to the intent of Congress when it wrote its law. What clues can we look at to understand what Congress meant to do with this law. Again, you have to look to the text as well when you’re trying to infer intent. They were passing the 13th Amendment and 15th Amendment around the same time. The 15th Amendment explicitly bars someone from being denied the right to vote on account of their race or previous condition of servitude. They made it about race there. If they had wanted the 14th Amendment to only apply to the descendants of enslaved people, they would have said so. The “primary purpose” of a law does not negate what the law says with its words. That’s why Congress has to write laws carefully, because if they are written wrong they could end up doing something that Congress didn’t intend them to do. If I’m like hey I’m gonna write a law and I want it to ban candy sales on Sundays and the law says “All candy sales are banned” then even though I intended for it to only ban candy sales on Sunday the effect of the law is to ban candy sales every day of the week. Technically I achieved my goal, candy sales are banned on Sundays, but there are additional unintended consequences of my law. So intent can only take you so far.
And looking at historical precedent to infer intent can also lead to convenient cherry picking of historical facts, and this case is no different. The Trump regime cherry picks quotes from the debates as the 14th Amendment was being written but leaves out important parts in which numerous of the Senators they cite to confirm that they believed every person who was born in the United States was a citizen there, at no point providing the type of limitations to citizenship that the Trump regime is now attempting to rewrite history to claim the original creators of the 14th Amendment intended. They debated it, at the time, they foresaw that the 14th Amendment would NOT just apply to formerly enslaved people and their children, and they kept it as written.
And after you’ve done this judicial interpretation–you’ve looked to the plain meaning of the text, you’ve looked to the historical meaning of the words, you’ve looked to the intent of Congress as it was writing the law, then you also consider what are called “policy arguments.” Arguments that look to the practical effects of the law and why they are good or bad. For the government, you will likely hear them argue that the effect of the current birthright citizenship law is that women are coming over here to have anchor babies. That’s a policy argument. As a counter to that argument, the challengers note that the rate of this so-called “birth tourism” is incredibly marginal but, even if it were more than just a marginal number of people doing it, there are ways to solve the problem of birth tourism that are less drastic than completely eliminating all birthright citizenship.
So for those of you keeping track at home the Trump regime loses on all fronts. The 14th Amendment is really clear, Congress knew what it was doing when it wrote the thing, Supreme Court precedent completely goes against what the Trump regime is attempting to do, and any policy arguments that there are nefarious immigrants doing nefarious deeds because of birthright citizenship can be counteracted with measures less drastic than doing away with centuries of established citizenship guarantees.
The questions that the justices pose to both sides tomorrow will likely give some insight into how the justices are thinking about the issue. I’m not seeing much consensus from legal experts about them coming out one way or another. I think it’s clear the way they SHOULD come out, but you never fucking know with this court. This is why people will be listening to tomorrow’s oral arguments closely to get a sense which way the court might come down. Because if they side in Trump’s favor, it could mean a catastrophic seachange for how citizenship functions in this country, the effects of which we really can’t fully anticipate or wrap our heads around at this stage. As for public opinion, people are generally really into the idea of birthright citizenship, like 90% support it, until they’re polled about how they feel about citizenship being given to the children of people who immigrated to the US illegally. When asked that, the number of people who support birthright citizenship for children of undocumented immigrants falls to 50% or even as low as 39%. But the Supreme Court is not bound by public opinion, it is their job to interpret what the law says. If the people feel strongly enough about something, they have to make the change to the constitution, which requires a level of consensus we haven’t managed to achieve in over 30 years. So whatever the Supreme Court decides we’re likely stuck with. If you want to listen along live to oral arguments tomorrow, they start at 9:30am eastern time and you can listen on CSPAN or just go to YouTube and search Trump v Barbara oral argument and most major news networks will have a livestream going.
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And if you liked this episode, you’ll like my episode from last week about how the Supreme Court seems poised to gut mail in voting in America
