SCOTUSblog By Amy Howe 2/13/2026
The Supreme Court will hear oral arguments on April 1 in the challenge to President Donald Trump’s executive order seeking to end the guarantee of citizenship to virtually everyone born in the United States. Like another high-profile case argued earlier this term, involving the challenge to Trump’s tariffs, the dispute has thus far garnered a large number of amicus or “friend of the court” briefs – 18 in support of the Trump administration and one that, although theoretically in support of neither side, tends to favor the administration.
I highlight some of the arguments made in the briefs supporting the Trump administration below. When the “friend of the court” briefs supporting the challengers are all filed later this month, I will discuss those in a separate story.
Several briefs focus on echoing or adding to the Trump administration’s arguments on the text of the Constitution.The 14th Amendment provides that “[a]ll persons born … in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Trump administration’s argument centers on the idea that to obtain citizenship at birth, you must be “subject to the jurisdiction of the United States,” which in turn means that you must be “completely subject” to this country’s “political jurisdiction,” “owing it ‘direct and immediate allegiance.’” The children of noncitizens who live only temporarily in the United States, the federal government contends, “owe primary allegiance to their parents’ home countries, not the United States” and therefore are not covered by the 14th Amendment’s citizenship clause.
Law professor Ilan Wurman offers a closer look at the rule in place in early English and U.S. history. He contends that, contrary to conventional wisdom, birthright citizenship was not universally available but was instead only available to the children of “parents under the sovereign’s protection. In exchange for that protection,” he writes, “the parents owed the sovereign allegiance” – a rule that “is unlikely to have applied” to the children of undocumented immigrants, whose parents would not have been under the sovereign’s protection. And “the leading drafters of the Civil Rights Act and the Fourteenth Amendment,” he says, “appear to have presumed temporary visitors would be excluded” from birthright citizenship because they were not subject to the “complete jurisdiction” of the United States.
Another law professor, Richard Epstein, points to the laws that governed the naturalization of U.S. citizens around the time of the adoption of the 14th Amendment to support the argument that the phrase “subject to the jurisdiction” of the United States does not apply to the children of undocumented immigrants. Under those laws, Epstein contends, someone who wanted to become a naturalized U.S. citizen “had to take an oath renouncing all loyalties to any foreign sovereign”; the children of a naturalized citizen would only then become U.S. citizens as well. “Because ‘subject to the jurisdiction thereof’ excludes individuals born owing allegiance to a foreign country,” Epstein asserts, “the phrase excludes children born to illegal immigrants. Even the most precocious newborn babies cannot renounce foreign ties. Only their parents can. And illegal aliens, by definition, have not done so,” Epstein concludes.
More:
https://www.scotusblog.com/2026/02/a-guide-to-some-of-the-briefs-in-support-of-ending-birthright-citizenship/
