This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Victoria Khaydar, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.
In January 2025, we told you that the Trump Administration was trying to abolish birthright citizenship by executive order. We predicted that the order would be subject to an immediate injunction, and we predicted further that the litigation would proceed, through the appellate process, to the Supreme Court, and, once there, the Trump Administration would lose 9:0.
Yesterday, the Supreme Court heard oral arguments in Trump v. Barbara, in which the question of birthright citizenship was placed squarely before the Court. Clearly, this was an important case for the Trump Administration; President Trump put in a personal appearance at the Supreme Court, left in the middle of oral argument, then ‘truthed’ his view that “We are the only Country in the World STUPID enough to allow ‘Birthright’ Citizenship!”
The question before the Court was not whether the United States’ longstanding rule of birthright citizenship is smart or ‘STUPID’; instead, the question was whether birthright citizenship is conferred by the Fourteenth Amendment, which states that all those “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 1898, the Supreme Court held, in Wong Kim Ark v. United States, that “subject to the jurisdiction thereof” had a specific, narrow meaning rooted in English common law: it excluded only children born to foreign rulers or diplomats and children born to enemy forces engaged in hostile occupation of U.S. territory.
In a surprise to this writer, the Administration did not ask the Court to overturn Wong Kim Ark. Instead, the Administration, ably represented by Solicitor General D. John Sauer, argued that the Executive Order could be upheld even within the context of Wong Kim Ark. The Solicitor General argued that the use of the concept of ‘domicile’ within Wong Kim Ark could be understood to refer to the modern concept of lawful permanent residency. The named litigant in Wong Kim Ark was the child of parents domiciled in the United States, so, per the Solicitor General, the precedent only barred the conferral of citizenship on children whose parents were domiciled in the United States.
The Court was, to say the least, skeptical of this position. Justices Gorsuch, Alito and Roberts all pressed Sauer hard, and the more liberal Justices offered no support at all for the government’s position.
The Court may dispense with the case by reiterating its holding in Wong Kim Ark – that is, by restating that, with rare exceptions, birth in the United States confers citizenship. Or the Court may dodge the Constitutional question as unnecessary, and invalidate the Executive Order under the Immigration and Nationality Act, which also holds that anyone “born in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.
Our bet is the Court will take this opportunity to send a message and reemphasize the core holding of Wong Kim Ark. Look for a 9:0 decision, as we predicted in January 2025, holding that the Executive Order is unlawful under the Fourteenth Amendment, with a few concurrences elaborating on the whys and wherefores.
As always, we’re happy to answer questions from readers. Ask away!
