Birthright Citizenship: A Personal Take on the Supreme Court Arguments

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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