In birthright citizenship fight, Justice Department selectively interprets the original meaning of the citizenship clauseSCOTUSblog By César Cuauhtémoc García Hernández 2/5/2026
Last month, the Department of Justice filed its brief with the Supreme Court in the high-stakes legal fight over birthright citizenship. According to the government, the justices should side with the Trump administration because the president’s executive order faithfully applies the intended meaning of the 14th Amendment’s citizenship clause, which states that all “persons born … in the United States, and subject to the jurisdiction thereof,” are U.S. citizens. Urging the justices to dive into the past, the Justice Department cites 19th-century books, letters, judicial opinions, and even a funeral speech in support of President Donald Trump’s attempt to narrow access to citizenship at birth. But in mining written texts from more than a century ago, the government’s brief plucks phrases that it favors while ignoring the political movement to dramatically expand citizenship in which the 14th Amendment was added to the Constitution.
Courts and executive branch agencies have customarily interpreted the citizenship clause as granting U.S. citizenship at birth to everyone born in the United States except for children born to diplomats, Native Americans, and invading military forces. Indeed, other than these three narrow exceptions, courts and past presidential administrations since 1868, when the 14th Amendment was ratified, treated as irrelevant the citizenship or immigration status of a child’s parents. (In 1924, President Calvin Coolidge signed the Indian Citizenship Act, which gave U.S. citizenship to all Native Americans born in the United States.)
Despite this, on the first day of his second term, Trump issued an executive order narrowly interpreting the citizenship clause. According to the executive order, children born in the United States should not be treated as U.S. citizens if they are born to a father who is neither a U.S. citizen nor lawful permanent resident and a mother who was living in the United States – at the time of the child’s birth – under a temporary visa or without the federal government’s permission.
The case before the Supreme court, Trump v. Barbara, challenges the legality of Trump’s executive order. Last July, U.S. District Judge Joseph Laplante of New Hampshire found that the executive order likely violates the 14th Amendment and an immigration law enacted by Congress. Laplante consequently blocked the Trump administration from implementing the president’s order.
Now before the Supreme Court, the Justice Department’s defense of the president’s order frames the legal fight in historical terms. Specifically, the government’s brief urges the court to “restore the original meaning of the Citizenship Clause.” To do that, the brief argues that the justices should allow executive branch agencies to implement Trump’s executive order because it articulates the citizenship clause’s meaning as it “was understood when it was ratified, not how it was misinterpreted in the 20th century.”
More:
https://www.scotusblog.com/2026/02/in-birthright-citizenship-fight-justice-department-selectively-interprets-the-original-meaning-of-the-citizenship-clause/
