Birthright citizenship: hard questions – and the best answers – for Trump’s challengers

[Elderberry]

SCOTUSblog By Akhil and Vikram Amar & Samarth Desai 3/31/2026

In our last column, we imagined grilling Solicitor General D. John Sauer in a moot court on birthright citizenship. Today, we reverse angles and imagine some of the hardest questions that tough-minded justices could ask the challengers’ lawyer, our friend and ACLU counsel Cecilia Wang, at Wednesday’s Supreme Court oral argument. We also offer what we think are the best answers to these tough questions. 

Q1: Didn’t the 1898 precedent United States v. Wong Kim Ark limit its ruling to children of those “domiciled” in the United States?

A: There is some narrow language in the case at page 693 that the solicitor general has cherry-picked and over-read, but throughout the opinion there is much more language that sweeps far more broadly – language embracing Lynch v. Clarke, a high-profile antebellum New York opinion affirming the citizenship of a child of temporary sojourners, and English common-law principles of jus soli going back hundreds of years. This sweeping language best fits the 14th Amendment’s text and history, especially the strong position taken by the Lincoln administration, which was the key backdrop to the amendment.

Also, many later decisions of this court have read Wong Kim Ark sweepingly, to recognize the citizenship of children born on American soil and under the American flag, even when their parents were willful illegal aliens – as in the 1957 Hintopoulos case.

Q2: Speaking of Hintopoulos, why didn’t you stress this case more prominently in your merits brief?

A: In our brief in opposition to certiorari, we did plainly quote (at page 31) the Hintopoulos court’s assertion that the child in that case was “of course, an American citizen by birth.” Of course! Later in this litigation, we have relied on and have welcomed various amicus briefs and scholarly commentary that have highlighted Hintopoulos, a case that emphatically supports our position today.

Q3: You earlier mentioned “soil” and “flag.” What is your position on the claim that some scholars have advanced that “subject to the jurisdiction” essentially means “under the flag”?

A: This is an elegant and historically well-supported theory that nicely wraps up the text in a clean package, making sense of both who is automatically citizenized (those born on the soil and under the flag) and who is not (those born on other soil or under other flags, such as Indian flags or occupying-foreign-army flags or embassy flags). This court need not accept this theory in every jot and tittle in order to rule for us – we win on so many theories! But if this court chooses to embrace the soil-and-flag approach, we of course clearly win.

Q4: Isn’t illegal immigration a massive problem today – much bigger than it was in the 1860s? And doesn’t your reading reward illegal immigration?

A: The government has many proper ways of deterring and even punishing illegal immigration that don’t violate the clear rules of the Constitution itself. If parents have misbehaved, they themselves may be directly sanctioned. But innocent American-born children may not be decitizenized. The phrase “subject to the jurisdiction thereof” in the amendment has absolutely nothing to do with modern-day policy concerns about illegal immigration. Its text focuses on the “persons born,” not the person or persons giving birth. Besides, the executive order ranges far beyond the children of unauthorized parents; it also tries to strip citizenship from countless children born to parents lawfully present – migrants invited to America on student visas and work visas, and others in line for green cards who have not yet received them.

Q5: Your affiliates have publicly called the government’s position “profoundly cruel.” As a matter of first principles, why is it fair that someone born on one side of the border is treated so much better than someone born on the other side? And unless everyone in the world is citizenized, won’t there always be some sort of line? Why is your line fairer?

More: https://www.scotusblog.com/2026/03/birthright-citizenship-hard-questions-and-the-best-answers-for-trumps-challengers/

[Fishrrman]

You probably won't like this post, but...

... Don't get your hopes up over this one.

It will be one of the biggest Supreme Court decisions of the decade (century?), but I sense that this one is going to go against us.

We are expecting the Court to provide the definitive rendering on this issue, one way or the other.

Usually, the Supreme Court tries to weasel its way around doing so, but if they decide to confront the issue head-on, there are some sticky issues involved.

If they were to rule in favor of the abolishment of "birthright citizenship" as a provision of the 14th Amendment, what does do for the millions already born "as citizens" under its language? How can they remain "citizens" when new lives born under the same circumstances are denied same? What about the concept of "equal protection of the laws?" (also a part of the horrible 14th Amendment, right?)

There's the legal concept of "stare decisis" (stand by things decided).

Even more, is the Court willing to insert its own ruling which might be construed as modifying a Constitutional amendment? I sense that the "right-side" members would be leery of doing this, even moreso than the left-siders.

I'm thinking the Court may rule that Mr. Trump's executive order denying birthright citizenship to newborns from illegals is insufficient to fundamentally change policy that has been in effect for more than 150 years. And that to make such changes will require either Congressional action, or more likely, a new Constitutional amendment to modify the language of the 14th.

I would be overjoyed to be wrong about such predictions.
But that's the way I see things going.

Didn't I tell you that you weren't going to like this post?

[berdie]

I didn't dislike the post because I see it as the likely outcome.