Desi Talk

www.desitalk.com – that’s all you need to know 10 CITIZENSHIP April 10, 2026 O n his first day in office last year, President Trump signed Ex- ecutive Order 14,160. That Order attempted to end birthright citizenship for children born in the United States to parents without per- manent immigration status. Today, the Supreme Court will hear oral arguments in a case challenging the constitutional- ity of that order. And Cato has filed an amicus brief in support of the Order’s challengers, explaining how and why the Order contravenes the Fourteenth Amendment. The Court should affirm the lower court’s holding that the Order is unconstitutional. The Fourteenth Amendment com- mands, “All persons 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.” The key debate in this case hinges on the meaning of the middle portion of that sentence: “subject to the jurisdiction thereof.” The government argues that the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment requires that newborn children be subject to America’s political jurisdiction, not just regulatory jurisdiction. Political jurisdic- tion, in the government’s view, demands allegiance to the United States—and therefore domicile—for citizenship. The government argues that children of parents without permanent immigration status cannot be domiciled in the United States, so they are not born citizens. But as our brief explains, this argument does not comport with the original public meaning of the Fourteenth Amendment. Contemporaneous definitions, writings of the time, and court precedent show that “subject to the jurisdiction thereof” only required that children be born under the United States’ authority (that is, be bound to follow US law). Because children of par- ents without permanent immigration sta- tus are under the authority of the United States and born in the United States, the Fourteenth Amendment grants them citizenship. The ordinary public meaning of the text is corroborated by the Fourteenth Amendment’s purpose. In the past, the Court improperly limited this purpose in the Slaughter-House Cases (1873) and excluded those the Fourteenth Amend- ment meant to protect. We argue that this Court should avoid making that mistake again and affirm the broad pur- pose of the Fourteenth Amendment: to protect “all persons.” And the set of “all persons” includes the children of parents without permanent immigration status. Our brief concludes with a rebut- tal of another amicus brief in this case. Professor IlanWurman’s amicus brief provides an account of the common law of birthright citizenship and a purported application of originalism that pays in- sufficient attention to the Constitution’s original public meaning. We argue that a more faithful deployment of original- ism cannot support ProfessorWurman’s conclusions. In the end, the Fourteenth Amend- ment guarantees citizenship to nearly all persons born in the United States, with exceptions far narrower than the Execu- tive Order’s scope. The president cannot ignore, rewrite, or abandon that promise by executive order. The Supreme Court should affirm the judgment below and issue a judgment that respects the right of birthright citizenship that the Fourteenth Amendment guaranteed. By Thomas A. Berry, Dan Greenberg, and Kimberly Coleman, Cato Institute The Supreme Court Should Affirm Birthright Citizenship PHOTO:COURTESY CATO.ORG Copy of 14th Amendment signed in 1866. The Supreme Court’s Middle Way On Birthright Citizenship T he Supreme Court heard argumentsWednesday on President Donald Trump’s 2025 executive order restricting birthright citizenship, and a majority of the justices sounded skeptical. But the court has two paths to block Trump’s order, and it matters which one it takes. The first path is a sweeping constitutional ruling that the 14th Amendment of 1868 requires automatic citi- zenship for anyone born to immigrants in the country illegally, for now and all time. The second is a narrower ruling that blocks Trump’s unilateral effort to rewrite U.S. citizenship rules but leaves the door cracked for Congress to legislate on the subject in the future. Two justices sounded potentially open to the more modest resolution. The 14th Amendment promises citizenship to anyone “subject to the jurisdiction” of the United States and born on its soil. Trump and briefs supporting himmake the case that this is a term of art. Those who advocated the provision after the Civil War, they argue, meant to exclude people subject to a foreign sovereign. But even if that were true - the evidence is appar- ently mixed - Congress has passed immigration law in the meantime that the Supreme Court can rely on. In particular, the Immigration and Nationality Act of 1952 uses the same phrase about “jurisdiction,” and legislators who passed that law seemed to take birthright citizenship for granted. As Justice Neil M. Gorsuch put it, “there was a lot of water over the dam” between the 1868 amendment and the 1952 law. The Trump administration claims the modern “misreading” of the 14th Amendment took root during the Franklin D. Roosevelt years. But if the modern understanding was also the understanding when Con- gress legislated on citizenship in the mid-20th century using the same terms, then that is enough to invalidate Trump’s order. As Gorsuch asked Solicitor General D. John Sauer: “Would there be an argument for reading that statute un- der its original plain meaning at the time - 1940, 1952 - to perhaps have a different meaning than the Constitution?” In other words: Even if the 14th Amendment doesn’t mandate unrestricted birthright citizenship, Congress might have done so. Justice Brett M. Kavanaugh also pressed that point. The 14th Amendment explicitly authorizes Congress to enforce its provisions. “Does that give Congress room,” Kavanaugh asked Sauer, to adjust the scope of birthright citizenship? He put the same question to CecilliaWang, the lawyer for the American Civil Liberties Union. He proposed a hypothetical where Congress voted “435 to zero in the House and a hundred to zero in the Senate” to change birthright citizenship rules: “Your point is no, they’re closed, they’re frozen forever?” Kavanaugh pointed out that the Supreme Court usually tries to avoid constitutional decisions if it can resolve a case based on a law Congress has passed. “Why would we address the constitutional issue,” he asked Wang, when “our usual practice - as you’re well aware, of course - is to resolve things on statutory grounds?” Gorsuch and Kavanaugh are pointing to a potential middle ground for the Supreme Court. The justices need not define the scope of the 14th Amendment’s citizen- ship clause right now. They can allow the people’s elected representatives in Congress to actually debate the policy and consider whether any changes are needed. If a decision to restrict birthright citizenship were ever arrived at through the normal democratic process, the Supreme Court could then decide if the revisions pass constitutional muster. This isn’t just a technicality. Americans’ rights are best protected when policy is made, at least in the first instance, by the legislature - not the executive and the courts. -Editorial Board/TheWashington Post PHOTO:MATT MCCLAIN/THEWASHINGTON POST People gather outside the Supreme Court on May 15 as the justices hear arguments about lower courts’ ability to block President Donald Trump’s policy to end birthright citizenship.