This week, I listened to the Supreme Court’s oral arguments in Donald J. Trump, President of the United States, et al. v. Barbara, et al.—a case that could redefine birthright citizenship in America. Both sides presented serious legal interpretations, and anyone claiming certainty about the outcome is probably allowing politics to influence their thinking. We should expect a ruling by the end of the Court’s term in June.
My interest in this case extends beyond academic curiosity. I minored in
law during college and seriously considered law school, but I ultimately
pursued a career as a Naval Intelligence officer. While serving in Washington,
D.C., I lived just a few blocks behind the Supreme Court building and the
Capitol and spent years witnessing how law and policy function in real-world
situations—often in more complex ways than they appear from an outsider's
perspective. This case is just as complex.
Some History Worth
Knowing
The 13th, 14th, and 15th Amendments,
ratified between 1865 and 1870, aimed to rebuild the nation after the Civil War
and ensure equal rights for formerly enslaved people. The 14th Amendment, in
particular, granted citizenship to “all persons born or naturalized in the
United States, and subject to the jurisdiction thereof,” while also securing
due process and equal protection.
That language was clear in its immediate
purpose but left room for interpretation—especially the phrase “subject to the
jurisdiction thereof.” That ambiguity is precisely what the Court is now being
asked to resolve.
The Executive Order and
the Lawsuit
On his first day in office for his second
term, President Trump signed Executive Order 14160, “Protecting the Meaning and
Value of American Citizenship.” The order aims to redefine the scope of
automatic birthright citizenship, excluding children of undocumented immigrants
and certain temporary visa holders.
Lawsuits quickly arose in several federal
courts, eventually leading to the issue being brought before the Supreme Court
in this case.
The Arguments Before
the Court
Trump's Solicitor General argued that the
14th Amendment's Citizenship Clause was specifically adopted to grant
citizenship to newly freed enslaved people and their children — not to illegal
aliens or temporary visitors. He pointed out that most countries do not offer
unconditional birthright citizenship, which he claimed effectively rewards
illegal immigration. He also highlighted "birth tourism" — the
organized practice of women traveling to the U.S. specifically to give birth so
their children receive American citizenship. Reporting from inside China alone
cited roughly 500 travel agencies built around this service, creating, as he
said, a whole generation of American citizens abroad with no real ties to the
United States.
The ACLU urged the Court to reaffirm a broad
interpretation of the Citizenship Clause, arguing that birth on U.S. soil
automatically grants citizenship under the 14th Amendment regardless of
parental immigration status. They contended that the phrase "subject to
the jurisdiction thereof" simply means being born within U.S. territory
and under its sovereign authority, with only the narrowest historical
exceptions for children of foreign diplomats or hostile occupying forces. Any
meaningful change, they argued, would require a full constitutional amendment —
not an executive order or ordinary legislation.
Why the National
Security Angle Matters Most
Where the legal arguments end, practical
consequences start—and one of these consequences often has a national security
aspect that is frequently overlooked.
During my service as a Naval Intelligence
officer, I signed annual acknowledgments confirming I would not gather
intelligence on U.S. citizens or operate domestically in ways that would breach
those protections. That clear boundary exists for a good reason—it protects
civil liberties and maintains trust in our institutions. However, it also
presents a vulnerability that birth tourism, if left unchecked, can exploit.
Imagine members of the Chinese Communist
Party using birthright citizenship to protect their children from intelligence
gathering if those children later advance within the CCP, its military, or its
intelligence agencies. That scenario is a likely result of a system lacking a
way to tell apart a child born to a visiting tourist from one born to a foreign
intelligence agent.
This is not an argument for weakening those
protections. It is an argument for understanding the implications of how
citizenship is originally granted.
The more effective approach is prevention:
tackling the incentives and mechanisms, like birth tourism, that take advantage
of the current system. That's where the real solutions are, no matter what the
Court decides.
What the Court Might Do
The Court has multiple possible options. It could decide directly on the
constitutional issue, either affirming or invalidating the Executive Order,
potentially clarifying what “subject to the jurisdiction thereof” truly means.
Alternatively, the Court could decide the case based on narrower
statutory grounds under the Immigration and Nationality Act of 1952, which
codifies birthright citizenship in language similar to the 14th Amendment. This
approach would avoid a broad constitutional ruling and leave the issue to
Congress—where it arguably belongs.
What Congress and the
Executive Branch Can Do Now
Fortunately, policy can address this area
even if the constitutional issue remains unresolved.
The State Department's visa
policy—reinstated and emphasized under the current administration—allows
consular officers to deny B-1/B-2 tourist visas when there is reason to believe
the primary purpose is birth tourism. That authority should be applied consistently
and rigorously, supported by improved vetting and coordination across agencies.
On the legislative front, proposals like the
Ban Birth Tourism Act aim to directly target the practice itself. The
Birthright Citizenship Act of 2025 goes even further, legally defining who
qualifies as "subject to the jurisdiction" of the United States and
limiting automatic birthright citizenship to children with at least one parent
who is a U.S. citizen, a lawful permanent resident, or serving in the military.
These measures are forward-looking, avoid constitutional conflicts, and focus
on the incentives behind the issue.
The Bigger Picture
Whatever the Court decides, this case
underscores a much bigger truth: birthright citizenship is just one part of a
broken immigration system that has resisted meaningful reform for decades. The
reasons for that failure — and what a practical, compassionate, rule-of-law
approach could look like — are topics I have spent years exploring. If you're
interested in this subject, I recommend reading Brotherhood and Borders:Immigration, Compassion, and the Rule of Law in America, where I explain
the roots of our policy failures and suggest realistic steps we can take now.
In the meantime, if the Court chooses not to
settle the issue definitively, the responsibility will remain with Congress,
where it has long belonged. We can continue avoiding tough questions or start
aligning our laws with current realities.
The law is complicated. History plays a
role. Reasonable people can disagree sincerely. But this debate won’t
disappear.
What we choose—whether through courts, legislation, or ongoing inaction—will ultimately shape the meaning of American citizenship in the coming decades.
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