Allegiance, Birthright, and the Fourteenth Amendment

By Kristina Kianovski '27

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On Wednesday, April 1st, the Supreme Court Justices heard oral arguments in a case that could redefine a foundational American principle: are people born on American soil ipso facto American citizens?

Established in 1868 as a means of granting citizenship to newly emancipated slaves, Section 1 of the Fourteenth Amendment overruled the Dred Scott v. Sandford decision, which denied the children of former slaves from establishing citizenship. (1) (2) At issue in Barbara v. Trump is the Citizenship Clause of the Fourteenth Amendment, found in Section 1.

“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.”

This introduced jus soli into the Constitution: “the law of the soil.” If you are born in a national territory, you are its citizen. (3)

In U.S. v. Wong Kim Ark (1898), the Supreme Court decided in a 6-2 ruling that a child born in the United States to foreign parents was still a citizen under the Fourteenth Amendment. (4) In his majority opinion, Justice Horace Gray clarifies that the real object of the Fourteenth Amendment was to make exceptions to two classes of citizens: children born of alien enemies in hostile occupation and the children of diplomats of a foreign state. To come to this conclusion, Justice Horace Gray uses the Civil Rights Act of 1866, the first federal law to declare “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” are lawful citizens of the United States. (5)

It’s the integrity of this decision that Solicitor General D. John Sauer questioned in the court on April 1st. (6)

President Donald Trump’s Executive Order 14160, issued on January 20, 2025, reimagined jus soli in the Constitution, emphasizing that “subject to the jurisdiction of” establishes a new relationship between person and territory. “The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof,’” the order stated. (7)

Under the executive order, “subject to the jurisdiction of” requires that at least one parent is a permanent resident of the United States. In issuing this, the president ex post facto revoked citizenship from those born on American soil to non-resident alien parents.

Unsurprisingly, this interpretation of the law was met with constitutional lawsuits in a variety of lower courts, three of which issued universal injunctions on the executive order. (8) Consolidated as Trump v. CASA, these lower court injunctions were ruled by the Supreme Court as unconstitutional in a 6-3 decision on June 27, 2025. (9) However, the court did not rule on the problem of birthright citizenship. To challenge this, the American Civil Liberties Union filed Barbara v. Trump, asking the U.S District Court for the District of New Hampshire to grant a class-wide injunction shielding those who wouldn’t be classified as citizens under the executive order. In December 2025, the Supreme Court granted certiorari before judgment, setting an oral argument date of April 1st, 2026. (10)

So, what does Trump’s counsel argue?

In their interpretation of the Fourteenth Amendment, Trump’s counsel, General Sauer, argues that “jurisdiction” is strongly related to allegiance, which is determined by domicile. This can be broken up into four main arguments, the textual evidence for which ranges from Roman Law to the interpretation of the Fourteenth Amendment, to the consequences of Wong Kim Ark. (11)

1. Jurisdiction means allegiance, not just subjection to U.S. law.

2. Allegiance requires domicile in the United States (by the parents, not the child).

3. Domicile is implied in the Fourteenth Amendment.

4. Historical cases show that birthright citizenship was never universal, especially for temporary visitors.

In his opening statements, General Sauer establishes a clear throughline between allegiance and domicile in the United States. He argues that the citizenship clause was adopted after the Civil War to grant citizenship to newly freed slaves, whose allegiance had been established through generations of domicile in the United States. General Sauer applies this to the entire class of illegal aliens, pursuing an argument where parental domicile is a driving factor in deciding a child’s citizenship. (12) If there is no domicile, then the children are not “subject to the jurisdiction thereof” in reference to the United States.

To further his argument, Sauer submits that there is a broad principle underlying “subject to the jurisdiction thereof” in the Fourteenth Amendment—one that can evolve as circumstances change. While illegal immigration did not exist at the time of the 14th Amendment and the Civil Rights Act of 1866, Sauer argues, temporary visitors to the U.S. did exist, and their children were excluded from citizenship.

Despite the Supreme Court Justices’ contentions with this framing of the word "jurisdiction," Sauer makes an array of fascinating historical appeals. “I’m taking it straight from the Framers’ mouths,” he says. “Senator Trumbull said -- was asked, what does jurisdiction mean? It means subject to the jurisdiction. He says, 'What does that mean?' He says, 'it means not owing allegiance to anybody else.' He is the principal framer of the Civil Rights Act of 1866.”

The Justices were skeptical of Sauer’s understanding of jurisdiction as an allegiance to the United States, rather than mere subjection to U.S. Law. Particularly, Justice Kagan pushed back on the new definition of jurisdiction, describing it as "esoteric" and reliant on historically obscure sources. (13) Several Justices also struggled to conceptualize the timeline of Sauer’s arguments. Albeit mainly relying on the Civil Rights Act of 1866 and a range of political commentators on temporary visitors (mostly from 1881 to 1922), Sauer pulls statutes from Roman law, English common law, 19th-century treatises, and post-Wong Kim Ark, making it difficult to pinpoint when a domicile-related definition of jurisdiction was introduced into the American interpretation.

Furthermore, Justices were concerned that Sauer’s understanding would broaden the limits of Congressional power. In Sauer’s view, domiciliaries are lawfully present and have an intent to remain permanently; it’s up to Congress to decide what “lawfully present” entails. Justice Ketanji Brown Jackson and Neil Gorsuch highlighted the fundamental problem with this—if Congress can dictate who establishes domicile, it creates the same malleability in the Citizenship clause that the framers were trying to get away from in the aftermath of the Dred Scott decision. (14) (15)

The skepticism and hesitancy reflected in the oral arguments suggest that the court isn’t eager to adopt Sauer’s framework. Nevertheless, the consequences of its adoption would be monumental in our understanding of citizenship—and the government’s role in the Fourteenth Amendment. As Justice Barrett sharply pointed out, edge cases would be in the legal gray area—what if a child doesn’t know who their parents are? Or if their parents were brought here forcefully (and illegally) but later retained permanent domicile?

The Fourteenth Amendment was ratified in the shadow of Dred Scott, bandaging the constitutional rupture created from excluding an entire class of people from the political community. In an effort to restore power to Congress on immigration, President Trump’s administration seeks to reopen the possibility that citizenship is legally contingent on discretionary attributes—namely, allegiance to the United States. The Court is responsible for evaluating the implications of General Sauer’s arguments; a ruling that accepts any of Sauer’s premises ultimately reimagines the practical qualities American citizens share.

Amanda Frost, UVA law professor and scholar, gave a succinct review of Executive Order 14160’s effects. “It would prevent about a quarter-million children each year from gaining citizenship…every family who gives birth to a child going forward, would have to prove their ancestry, their lineage before their child would be recognized as a citizen,” she said. “And, finally, I think it would change the meaning of what it is to be an American. Born in the USA resonates with people, because that's the definition of American.” (16)

Endnotes

1. National Archives, “14th Amendment to the U.S. Constitution: Civil Rights (1868),” last reviewed March 6, 2024, https://www.archives.gov/milestone-documents/14th-amendment.

2. Dred Scott, Plaintiff in Error, v. John F. A. Sandford. 60 U.S. 393 (1856).

3. The Birthright Lottery: Citizenship and Global Inequality, by Ayelet Shachar (Cambridge, MA: Harvard University Press, 2009), 113.

4. United States v. Wong Kim Ark. 169 U.S. 649 (1898).

5. Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866), transcript PDF.

6. Trump, President of the United States v. Barbara, No. 25-365 (U.S. argued April 1, 2026), transcript, Supreme Court transcript.

7. Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449 (January 29, 2025), Public Inspection Doc. 2025-02007, PDF.

8. Amy Howe, “Trump asks Supreme Court to step in on birthright citizenship,” SCOTUSblog, March 13, 2025, https://www.scotusblog.com/2025/03/trump-asks-supreme-court-to-step-in-on-birthright-citizenship/.

9. Trump v. CASA, Inc., 606 U.S. (2025), slip op., https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf.

10. Trump v. Barbara, No. 25-365, Questions Presented, https://www.supremecourt.gov/docket/docketfiles/html/qp/25-00365qp.pdf

11. Trump, President of the United States v. Barbara, No. 25-365 (U.S. argued April 1, 2026), transcript, Supreme Court transcript.

12. Ibid.

13. Supreme Court of the United States, Trump v. Barbara, No. 25-365, oral argument transcript, April 1, 2026, 28, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/25-365_l6gn.pdf.

14. Supreme Court of the United States, Trump v. Barbara, No. 25-365, oral argument transcript, April 1, 2026, 31, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/25-365_l6gn.pdf.

15. Supreme Court of the United States, Trump v. Barbara, No. 25-365, oral argument transcript, April 1, 2026, 22, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2025/25-365_l6gn.pdf.

16. PBS NewsHour, “Analyzing the Arguments as Supreme Court Hears Birthright Citizenship Case,” PBS NewsHour, May 15, 2025, https://www.pbs.org/newshour/show/analyzing-the-arguments-as-supreme-court-hears-birthright-citizenship-case.