Trump v. Barbara

[This case is edited heavily. The slip opinion runs to roughly 194 pages across five opinions — Justice Thomas’s dissent alone is 91 — and what follows is a small fraction of it. Most footnotes, and many citations and internal cross-references, are omitted without further notation. Bracketed ellipses mark omissions within a passage; asterisks mark larger cuts.]

[The lineup, because it is unusual and the arithmetic matters: Roberts, C.J., delivered the opinion of the Court, joined by Sotomayor, Kagan, Barrett, and Jackson, JJ. (five). Jackson, J., filed a concurring opinion, joined by Sotomayor, J., as to the introduction and Part I. Kavanaugh, J., filed an opinion concurring in the judgment and dissenting in part — he would affirm on the statute and rejects the constitutional holding. Thomas, J., filed a dissenting opinion, joined by Gorsuch, J. Alito, J., and Gorsuch, J., filed separate dissenting opinions. So: the judgment is 6–3, but the constitutional holding commanded only five. Watch what that does to the case’s precedential weight.]

[Note the posture as well: certiorari before judgment to the First Circuit. The Court took the case away from a court of appeals that had not yet ruled on it. Keep Module 1’s third question — jurisdiction — in view while you read.]

Chief Justice Roberts delivered the opinion of the Court.

At issue in this case is whether the Constitution guarantees citizenship to children born of parents unlawfully or temporarily present in the United States.

I

The Fourteenth Amendment provides:

“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.”

On January 20, 2025, President Trump issued Executive Order No. 14160, titled Protecting the Meaning and Value of American Citizenship. The Order provides that children born of persons unlawfully or temporarily present in the United States are not “subject to the jurisdiction” of the United States—and thus do not qualify for citizenship under the Fourteenth Amendment or the Immigration and Nationality Act (INA), which uses the same language. 90 Fed. Reg. 8449.¹

Several parents filed suit, some on their own behalf, others on behalf of (and in the name of) their children. They argued that the Executive Order violates the Fourteenth Amendment and the INA. The District Court agreed. 790 F. Supp. 3d 80, 101–102 (NH 2025). It provisionally certified a nationwide class of children who would be denied citizenship by the Order and preliminarily enjoined the Order’s enforcement. Id., at 105–106. We granted certiorari before judgment. 607 U. S. 1079 (2025).

II

To understand the Citizenship Clause of the Fourteenth Amendment, it is first necessary to understand the context in which it arose—and the opinion of this Court, Dred Scott v. Sandford, 19 How. 393 (1857), that it rejected.

A

The story of citizenship in the United States begins with the English common law. Before the Revolution, the American colonists—like all in the British Empire—were considered subjects of the sovereign. That arose not from royal fiat, but from what the common law conceived as the relationship between the sovereign and the people. The King, Blackstone explained, owes those “born within the dominions” a duty of “protection.” 1 W. Blackstone, Commentaries on the Laws of England 354 (1765). And “in return for that protection,” those “born within the dominions” owe the King a “duty” of “allegiance” (sometimes rendered “ligeance”). Id., at 354, 356. Children born with that allegiance were “natural-born subject[s].” Doe v. Jones, 4 T. R. 300, 308 (K. B. 1791) (Kenyon, C. J.). As Lord Coke put it in the celebrated Calvin’s Case, 7 Co. Rep. 1a (K. B. 1608), a “dual and reciprocal tie” thus connects “the Sovereign and [his] subject[s].” Id., at 4b–5a.

Because the sovereign’s power (and thus his duty) was limited in various respects, so too was the scope of this rule. He could not demand allegiance from—for he could not protect—those born in lands that he did not control. Id., at 18a. (Among that group were the people born in the King’s lost dominions—“France, Aquitain, Normandy, &c.”—over which he claimed an “absolute right” but had no actual power to rule.) The same held true even in discrete areas within his kingdom that were temporarily outside his control. See ibid. (if “enemies” were to “possess” a “castle or fort,” their children would not be born “under the King’s ligeance”). And the same held true for ambassadors (and their families), who were considered—by a fiction of extraterritoriality—to remain on foreign soil and thus “under the ligeance” of their home country. Ibid.; see also Schooner Exchange v. McFaddon, 7 Cranch 116, 138–139 (1812) (Marshall, C. J., for the Court).

In all other respects, however, the sovereign’s power—and his claim to the people’s allegiance—was complete. A foreign mother could enter the British Isles, give birth, and leave with her child the very next day, and that child would remain a British subject. Why? Because the child owed an implied allegiance to the sovereign who protected him at his birth—no matter how “momentary and uncertain” his presence in the King’s realms. Calvin’s Case, 7 Co. Rep., at 6a. The same rule applied to children born in the realm of parents subject to expulsion. For example, children of “gypsies” (today, called Romani or Roma people) born in the realm were natural-born subjects, notwithstanding that British law at the time “directed” the Roma people “to avoid the realm” under “pain of imprisonment” or even death. 4 Blackstone 166 (1769). For those children, and all others born in Britain, the rule was the same: With protection came allegiance, and with allegiance came the status of a natural-born subject.

This view crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution, as “subject[s]” of the sovereign became “citizens” of the States. This common law of citizenship—known as jus soli, or right of the soil—prevailed in “each and all of the states” after American independence, and continued to emphasize reciprocal “allegiance” and “protection.” 2 J. Kent, Commentaries on American Law 38–39, n. a, 40 (6th ed. 1848).

The rule was applied even to the novel situation of the quasi-sovereign Indian tribes: Chancellor Kent reasoned that they remained “dependent nations” maintaining “dominion[s]” of their own, so that Indians born under those dominions were not “citizens or subjects of the United States,” but members of “alien and sovereign tribes.” Goodell v. Jackson ex dem. Smith, 20 Johns. 693, 714–715 (N. Y. Ct. Corr. Errors 1823).

In a Nation of immigrants—an “asylum for mankind,” in Thomas Paine’s words—jus soli’s broad scope took on particular importance. The young Republic attracted tens of thousands of émigrés from the Old World, some of whom hoped to stay only a short time, others of whom hoped never to leave. No matter their intentions, however, they could be assured that their children would be American citizens by birth alone. As Justice Story said, “[n]othing is better settled.” Inglis, 3 Pet., at 164 (opinion concurring in part and dissenting in part). So said the antebellum era’s foremost case on the topic, Lynch v. Clarke, 1 Sand. Ch. 583 (N. Y. Ch. 1844). Lynch reiterated that “the common law rule was the law of the land” for the children of “citizens” and “foreigners” alike—including those foreigners here merely on a “temporary sojourn.” Id., at 638, 663–664. The promise of American citizenship, Lynch declared, extends to “all persons born within the jurisdiction of the United States.” Id., at 668.

B

The common law “made no distinction on account of race or color.” United States v. Rhodes, 27 F. Cas. 785, 789 (CC Ky. 1866) (Swayne, J.). But the slave States did. As the Civil War approached, more and more Southern States sought to deny citizenship to black Americans—and openly rejected the common law to reach that result. It was “not the place of a man’s birth” that made him a citizen, these States said, “but the rights and privileges he may be entitled to enjoy.” Amy v. Smith, 11 Ky. 326, 332 (1822). With the common law abandoned, almost 500,000 free black Americans in the South were left little more than “strangers.”

In the odious decision of Dred Scott v. Sandford, this Court imposed the Southern States’ beliefs onto the Nation. 19 How. 393. Chief Justice Taney, writing for the Court, concluded that “the words ‘people of the United States’ and ‘citizen[s]’” had an unexpressed (and atextual) racial component—one that excluded all those descended from slaves. Id., at 419. […] They were “born in the country,” Chief Justice Taney acknowledged, and thus “did owe allegiance to the Government”—the precise criteria for citizenship at common law. Id., at 420. But they were “not included, and were not intended to be included, under the word ‘citizens’ in the Constitution.” Id., at 404. For them, blood, not soil, was made the rule.

Dred Scott was met with shock. Ever since “the Declaration of Independence,” Justice Curtis wrote, “the received general doctrine has been, in conformity with the common law”—that all “free persons born within” a State are “citizens of the United States.” Id., at 576–577 (dissenting opinion). The decision was, in Lincoln’s famous words, an “astonisher in legal history.”

Abolitionists swore to undo what the Court had done. “By birth,” Frederick Douglass insisted, “we are American citizens.” 2 Life and Writings of Frederick Douglass 259 (P. Foner ed. 1950). “The Constitution knows all the human inhabitants of this country as ‘the people,’” he explained, no matter their “color, class, or clime.” Id., at 415, 424.

C

The Court had overruled the common law, but the people—eventually—would overrule the Court. […]

The Reconstruction Congress did not start from scratch. In the midst of the Civil War, President Lincoln’s Attorney General, Edward Bates, had issued a landmark opinion that sought to displace Dred Scott in favor of the common law. Citing the key authorities (among them Calvin’s Case and Kent’s Commentaries), Bates rejected the premise that “citizenship is ever hereditary.” 10 Op. Atty. Gen. 382, 399 (1862). “[E]very person born in the country,” he wrote, “is, at the moment of birth, prima facie a citizen … without any reference to race or color, or any other accidental circumstances.” Id., at 394. He acknowledged that there were some limits—hence “prima facie,” not “conclusive.” But those exceptions were “few,” simply “the small and admitted class of the natural-born composed of the children of foreign ministers and the like.” Id., at 397. To Bates, it was soil—not blood—that “furnishes the rule, both of duty and of right.” Id., at 394.

A year after General Lee’s surrender at Appomattox, Congress sought to turn Bates’s opinion into law. The result was the Civil Rights Act of 1866. The Act declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby … citizens of the United States.” §1, 14 Stat. 27. To the Reconstruction Congress, the Act was simply assumed to invoke the common law rule […]. Indeed, the bill’s sponsor, Senator Lyman Trumbull, enthusiastically agreed with the bill’s critics that it would make citizens of “the children of Chinese and Gypsies born in this country.” Cong. Globe, 39th Cong., 1st Sess., 498 (1866). “[E]ven the infant child of a foreigner born in this land is a citizen” under this bill, Trumbull declared. Id., at 1757.

The specter of Dred Scott, however, loomed over Congress’s efforts. Opponents of the Act contended that Congress could not grant such expansive citizenship (and set aside this Court’s precedent) by statute alone. To quiet those concerns—and to permanently enshrine the common law in the Constitution—Congress turned to the Fourteenth Amendment.

III

A

What the Civil Rights Act began, the Fourteenth Amendment would finish. Like the Act, the Fourteenth Amendment was intended to repudiate Dred Scott. This time, however, the goal was even grander—to put the “great question of citizenship” “beyond the legislative power” altogether, to settle the issue once and for all. Cong. Globe, 39th Cong., 1st Sess., at 2891, 2896 (Sen. Howard).

The Fourteenth Amendment achieved its aim. The Citizenship Clause mirrored the common law’s criteria for citizenship. The Clause starts, like the common law, with territory—a child must be “born … in the United States,” not elsewhere (even to American parents). And the Clause ends, again like the common law, with sovereign power—a child must be “subject to the jurisdiction” of the United States, unlike (say) the families of foreign ministers. A child born on American soil and subject to American law was made an American citizen.

Even the language of the Clause is that of the common law. Lynch held that American citizenship extended to “all persons born within the jurisdiction of the United States.” 1 Sand. Ch., at 668. So did Chancellor Kent. […] And so did the famed antebellum lawyer Horace Binney. […] Little wonder, then, that the Citizenship Clause’s principal author would explain that its language was “simply declaratory of … the law of the land already.” Cong. Globe, 39th Cong., 1st Sess., at 2890 (Sen. Howard).

B

Even putting the common law to one side, the Citizenship Clause’s key phrase—“subject to the jurisdiction”—requires the same result. The word “jurisdiction” was hardly unknown to the drafters and ratifiers of the Fourteenth Amendment. Congress chose to use an established legal term and the Clause must be interpreted in that light.

In 1868, as today, “jurisdiction” (in the context of a sovereign) refers to the “[p]ower of governing or legislating.” N. Webster, An American Dictionary of the English Language 732 (1865). To be “subject to” the jurisdiction of the United States, then, is to “liv[e] under” its “dominion,” J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause’s territorial focus on those born “in” the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory.

The scope of that power was well settled in 1868, largely by “the celebrated case” of Schooner Exchange v. McFaddon, 7 Cranch 116. Expounding on “general principles,” Chief Justice Marshall explained that “jurisdiction” referred to “the full and complete power of a nation within its own territories.” Id., at 136. That “absolute” power was “susceptible of no limitation not imposed” by the nation itself. Ibid. All sovereigns, however, were understood to have impliedly waived their jurisdiction in “certain peculiar circumstances”—in essence, where exercising jurisdiction would “degrade the dignity” of “foreign sovereigns.” Id., at 136–137. As in the context of jus soli, those peculiar circumstances arose most frequently in the case of “foreign ministers.” “[E]very sovereign would hazard his own dignity,” after all, if his officials abroad were made to “owe temporary and local allegiance to a foreign prince.” Id., at 139.

The limits of that exception were carefully defined. Still within the United States’ power were the “private individuals” of a foreign nation who had “spread themselves through [our territory] as business or caprice may direct.” Id., at 144. “[I]t would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction,” Chief Justice Marshall explained, “if such individuals or merchants … were not amenable to the jurisdiction of the country.” Ibid. Just like jus soli, a sovereign’s jurisdiction made no exception for those only temporarily present within the sovereign’s territory. Instead, nearly everyone within the territorial boundaries of the United States was “amenable to” the Nation’s jurisdiction. Ibid.

The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th-century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).

No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States; no foreign sovereign would “have any motive for wishing” them outside this Nation’s authority. Ibid. Those children are thus subject to the jurisdiction of the United States. They satisfy both elements of the Citizenship Clause: they are “born … in the United States” and “subject to the jurisdiction thereof.” Under the Constitution, they are citizens at birth.

IV

Our precedent—the seminal case of United States v. Wong Kim Ark, 169 U. S. 649 (1898)—confirms this rule.

A

For nearly two decades after the Fourteenth Amendment’s ratification, the Executive Branch viewed the Citizenship Clause as “simply an affirmance of the common law of England and of this country.” Memorandum of Secretary of State H. Fish to Mr. Marsh (May 19, 1871), in 2 Digest of the International Law of the United States §183, p. 394. Under that view, “the status of citizenship” was “fixed by the place of nativity, irrespective of parentage”—with the limited exception of “the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.” Ibid.

Attorneys General and federal courts said the same, seeing the Clause as merely “declaratory of the rule of the common law.”

As the era of Reconstruction faded, however, so too did the promise of birthright citizenship. Uncertainty came with the first Chinese Exclusion Act of 1882, 22 Stat. 58, and the election of President Cleveland, the first Democrat to hold the office since the Civil War. It was around this time that the State Department began to deny citizenship to those with “dual or doubtful allegiance,” 2 Digest 402; and it was around this time that several scholars proposed a new theory of the Clause, one based on “international law,” F. Wharton, Conflict of Laws §10, p. 35 (2d ed. 1881).

This new theory focused on the parents’ status, not the child’s. It was only if a child’s parents were “domiciled in the United States,” they argued, that the child was “internationally subject to the jurisdiction of the United States,” as the Citizenship Clause (they said) required. Id., §12, at 41–42. These writers acknowledged that the common law took a different view, and acknowledged “that the language of the [F]ourteenth [A]mendment … is very broad.” But they insisted that jus soli had been “universally” rejected by other nations and had not been made part of the Constitution.

B

In Wong Kim Ark, this Court rejected that view, concluding that no “rule of international law” had qualified “the ancient rule of citizenship by birth within the dominion.” 169 U. S., at 667.

At issue was the citizenship of Wong Kim Ark, born in San Francisco to Chinese parents. […] The Government […] admitted that “the opinions of the Attorneys-General, the decisions of the Federal and State courts, and, up to 1885, the rulings of the State Department all concurred in the view that birth in the United States conferred citizenship.” But the Executive no longer endorsed that view. “[T]he common-law doctrine of England,” it argued, had in fact never been “the doctrine of the United States.”

In an opinion by Justice Gray, the Court rejected the Government’s position. Justice Gray explained that the Fourteenth Amendment was merely “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law. 169 U. S., at 688. That “same rule,” he wrote, “was in force in all the English Colonies”—“and continued to prevail under the Constitution.” Id., at 658. And its contours were clear. It excluded those recognized as exempt “from the jurisdiction of this country”—the “children of ambassadors” and other representatives of foreign sovereigns, as well as those born in the “alien nations” of Indian tribes. Id., at 675, 681–683, 693.

All others were citizens at birth, whether born to permanent residents or temporary visitors. […]

Justice Gray then turned to Schooner Exchange to confirm what the common law made clear. “The words … ‘subject to the jurisdiction thereof,’” he wrote, “must be presumed to have been understood and intended by the Congress … in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange.” 169 U. S., at 687. On that understanding, aliens who traveled to the United States for “business or pleasure” received no “exemption from the jurisdiction of the country.” Id., at 686. To the contrary, they were subject to that jurisdiction for as long as they remained here—and any children born to them were American citizens under the Fourteenth Amendment.

What the Court held in Wong Kim Ark was simple: the Citizenship Clause incorporated the common law and granted citizenship to nearly all children born in the United States. Not surprisingly, then, in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power. We see no reason to depart from that view today.

V

The Government and the principal dissent share many of our premises. They agree that the Citizenship Clause was intended to incorporate the “background principles” of the common law. They agree that, under the common law, “citizenship turns on allegiance.” And they agree that “Dred Scott departed from that traditional, allegiance-based view of citizenship”—a departure that Congress “repudiated” in the Clause.

Where the Government and the principal dissent err is with their definition of “allegiance.” They concede that Calvin’s Case and Blackstone state the rule that prevailed before the Declaration of Independence—that a natural “allegiance” arises for all children who are “born here … under the protection of the sovereign.” Yet according to the Government and the principal dissent, “the United States’ conception of allegiance”—at some unspecified point in time—broke “from Great Britain’s.” (The Government has variously dated this change to the late-18th century, the early-19th century, and the Reconstruction era; the principal dissent declines to offer a date.) Natural allegiance, they contend, was no longer sufficient for citizenship; some greater quantum of allegiance was required.

How much? The Government offers a smorgasbord of formulations: “primary allegiance,” “sufficient allegiance,” “full allegiance,” “requisite allegiance.” (The principal dissent, for its part, seems to have settled on “primary allegiance.”) What all these formulations supposedly share is that they turn on domicile—the place of one’s permanent home. At some point before the ratification of the Fourteenth Amendment, the argument goes, it became “deeply rooted” in this country that “[d]omicile is the key concept that creates allegiance.” Tr. of Oral Arg. 26.

The trouble is that there is scant evidence for this dramatically revisionist view. Certainly no one said that such a change had occurred. […] The only evidence the Government and the principal dissent can muster to show that some alternative (“primary”) conception of allegiance displaced the common law is a “funeral oration” for President Lincoln. Ahistorical modifiers aside, the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1868. Sources from that period instead defined “allegiance by birth” just as the British did—as “the tie or duty” owed by one who is “born within the dominions and under the protection of a particular sovereign.” Inglis, 3 Pet., at 155 (opinion of Story, J.).

The principal dissent (but not the Government) at times seems to directly equate domicile and national citizenship. That is wrong. “It is, in fact, a general axiom of international law, that there may be domicil where there is no nationality, and nationality where there is no domicil.” F. Wharton, Conflict of Laws §40a, p. 47 (1872). After all, one who establishes a domicile in a new country does not automatically become a citizen thereof. (He has to be naturalized.) Nor does he automatically lose his prior citizenship. (He has to expatriate.)

The congressional debates over the Civil Rights Act of 1866 and the Fourteenth Amendment confirm our view. The principal dissent (and the Government) lean heavily on a handful of ambiguous floor statements referencing “temporary sojourners” and “foreigners.” See, e.g., Cong. Globe, 39th Cong., 1st Sess., at 1117 (Rep. Wilson) (“it may be that children born on our soil to temporary sojourners” do not fall within the Act’s scope (emphasis added)); id., at 2890 (Sen. Howard) (the Citizenship Clause “w[ould] not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors or foreign ministers”). Far more frequent and explicit, however, were statements embracing the common law. And the debates make clear that no member of Congress seriously grappled with a domicile-based carveout to the “fixed, certain, and intelligible rule[]” of the common law. Lynch, 1 Sand. Ch., at 658.

For a Congress intent on putting the question of citizenship “once and forever [to] rest,” a domicile-based qualification would have introduced significant uncertainty. Unlike the easy-to-apply common law, it would be “difficult, if not impossible, to lay down any general rule” of domicile-based citizenship, as domicile “often depend[s] upon the circumstances of each case, the combinations of which are infinite.” Yet the word “domicile” appears just twice in the discussion of the relevant provision of the Civil Rights Act. And it appears in only one speech from the Citizenship Clause debates—as part of an explanation of why State citizenship is distinct from national citizenship under the Constitution.

In any case, postenactment history cannot override the text. If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design. Words appearing frequently in the Executive Order—“mother,” “father,” “lawful,” “temporary”—are absent from the Clause. For a simple reason: they did not matter. And while the Clause does ensure state citizenship attaches for U. S. citizens in “the State wherein they reside,” Amdt. 14, §1, the explicit invocation of residence for state citizenship only highlights its absence from the criteria for U. S. citizenship.

When the principal dissent does grapple with the operative legal text—“subject to the jurisdiction” of the United States—it has little to say. It argues only that a person is “subject to the jurisdiction of the government of his domicile.” Post, at 3. But that is not the question. The question is whether a person is “subject to the jurisdiction” of the government of the country in which he is physically present, even if he is only there temporarily. He is (unless he falls under one of the familiar exceptions, such as for ambassadors). For the reasons given by Chief Justice Marshall in Schooner Exchange, the United States exercises “full and complete power”—its “absolute and complete jurisdiction”—over temporary visitors.

* * *

If the test truly is whether a person is “amenable to the laws” of two governments at once, then it is a test that every child born to a foreign parent fails—a result that even the principal dissent cannot stomach. Justice Alito seems to recognize this bind, so he would create an ad hoc exception for those whose parents have “done everything within their power … to become Americans.” Post, at 27. He does not explain how that exception can be squared with his view of the text, which (to repeat) is that anyone “automatically” made a “national[]” of his “parents’ native country” was not entitled to citizenship under the Civil Rights Act.²

For the dissents and the Government, Wong Kim Ark is essentially irrelevant. They attempt to narrow that precedent by noting that the Court’s opinion repeatedly referred to the domicile of Wong’s parents. That is true. But “the reasoning underlying” the holding of Wong Kim Ark cannot be squared with a domicile requirement of the sort the Government envisions. As we have already explained, the Court exhaustively canvassed the text and history of the Citizenship Clause. It traced an unbroken line from the English common law, into the founding and antebellum eras, and through the debates, to the Clause’s ratification. Yet at no point did the Court identify any evidence in the historical record that the ratifiers of the Fourteenth Amendment thought themselves to be imposing a domicile limitation.

In the end, it is the dissent in Wong Kim Ark that makes the strongest case for a domicile-based theory of American citizenship. There, Chief Justice Fuller would have read the Fourteenth Amendment to “prevent[] the acquisition of citizenship by” “the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power.” Id., at 721. The Government and today’s dissenters agree. But this view commanded only a dissent in 1898, and neither time nor circumstance has changed the fact that it is not the law.

* * *

Again and again, the dissents cast the common law as “feudal,” “medieval”—a remnant of “the darkness of the middle ages.”

That was not the view of the Reconstruction Congress. Where the dissents see feudalism, the Framers of the Fourteenth Amendment saw emancipation. By the time of the Glorious Revolution in 1688, in fact, the tie created by birth was less a “duty” than a “right”—the foundation of the “ancient liberties” of “free-born subjects.” That is why Blackstone described the “privileges” owed to the “natural-born.” 1 Blackstone 361–362. That is why the colonists demanded the “rights of Englishmen” more than 250 years ago. And that is why abolitionists lauded the “ancient and universal” rule of citizenship by birth alone as “an ordinance of Heaven.”

Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to “every free-born person in this land.” Cong. Globe, 39th Cong., 1st Sess., at 600 (Sen. Trumbull). We keep that promise today.

The judgment of the District Court for the District of New Hampshire is affirmed.

It is so ordered.

Justice Jackson, with whom Justice Sotomayor joins as to the introduction and Part I, concurring.

I join the Court’s opinion in full. I write separately to respond to some of the themes in the principal dissent. Despite his longstanding endorsement of a “colorblind” Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to “freed slaves such as Dred Scott,” and those who shared with them certain characteristics. It is for this reason, he says, that “children who were born in the United States but [to parents] not domiciled here” are not entitled to claim birthright citizenship. But that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, Justice Thomas’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.

* * *

The Civil Rights Act of 1866—the predecessor to the Citizenship Clause—was initially drafted as a spot treatment. Senator Lyman Trumbull’s first proposal homed in on the freedmen and provided merely that “all persons of African descent born in the United States are hereby declared to be citizens of the United States.” If that language had prevailed, the view Justice Thomas asserts today might be well founded.

But Senator Trumbull changed his mind. The day after he submitted that first proposal, he requested to “withdraw [the original] and … offer another in lieu of it to the same purport, changing the phraseology.” Consistent with the views espoused by activists, Trumbull’s new proposal adopted a distinctly universalist register: “All persons born in the United States, and not subject to any foreign power, are hereby declared to be citizens of the United States, without any distinction of color.”

Senator Trumbull’s progression from specific to universal was more than mere word choice. In the face of the virulent anti-immigrant—and, in particular, the anti-Chinese and the anti-Romani—sentiment of that era, language targeting just freed former slaves would have been the path of least (or less) resistance. But Senator Trumbull, along with those colleagues who took up the same mantle, did otherwise.

So the principal dissent is wrong to complain that the Court “has repurposed the Fourteenth Amendment to protect … rights that the Reconstruction Congress never contemplated.” The question is (and always has been): Does the affected individual or group enjoy equal dignity? And the correct answer is (and has always been) to heed the Fourteenth Amendment’s universalist, antisubordination command. Our Nation did not undergo something as profound and world-shifting as “Reconstruction” for naught.

Justice Kavanaugh, concurring in the judgment and dissenting in part.

Executive Order No. 14160 establishes new exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. The Court today holds that the Order violates the Fourteenth Amendment to the Constitution. I respectfully disagree with the Court’s constitutional holding. In my view, the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene a federal statute, 8 U. S. C. §1401(a). Congress could—consistent with the Fourteenth Amendment—amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.

I

I first consider plaintiffs’ statutory argument. The statutory analysis is straightforward, and the Court could have (and in my respectful view, should have) decided the case on that narrow ground.

Initially enacted in 1940, §1401(a) of Title 8 provides that persons “born in the United States, and subject to the jurisdiction thereof” “shall be nationals and citizens of the United States at birth.” That statutory language mirrors the text of §1 of the Fourteenth Amendment.

This Court’s 1898 Wong Kim Ark decision interpreted the “subject to the jurisdiction” language of the Fourteenth Amendment. That decision adopted a general rule of birthright citizenship for those born in the United States—with four disparate exceptions for “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory” and “children of members of the Indian tribes.” 169 U. S., at 693. Importantly, the Wong Kim Ark decision treated those four exceptions as a closed set for constitutional purposes, meaning that Congress could not create other exceptions to birthright citizenship, although Congress could eliminate one or more of those four exceptions.

In 1940 and 1952, Congress employed the exact language from the Fourteenth Amendment—“subject to the jurisdiction thereof”—in comprehensive new immigration and naturalization laws that provided for birthright citizenship. Because §1401(a) uses the same language as the Fourteenth Amendment, the statute has long been interpreted to adopt Wong Kim Ark’s general rule of birthright citizenship, subject to the exceptions identified in that case. If Congress in 1940 or 1952 wanted to create new exceptions—and thereby test Wong Kim Ark’s statement treating the four exceptions as a closed set—Congress presumably would not have repeated the precise language that this Court had interpreted in Wong Kim Ark to contain only those four exceptions. Stated more doctrinally, Congress “must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment.” Shapiro v. United States, 335 U. S. 1, 16 (1948).

Importantly, moreover, from the time of those statutory enactments in 1940 and 1952 all the way through 2025, the Executive Branch consistently interpreted §1401(a) to encompass only those Wong Kim Ark exceptions to birthright citizenship. (The Government here does not contest that historical point.) […]

In 2025, however, Executive Order No. 14160 sought to add two new exceptions to birthright citizenship for children born to foreign citizens who are either illegally or temporarily in the United States. In doing so, the Executive Order goes beyond what §1401(a) authorizes. For the Executive Order to be lawful, therefore, Congress would need to amend §1401(a) or otherwise enact new legislation to encompass those two new exceptions. As of now, Congress has not done so. Over the last 30 years, Congress has considered numerous proposed bills to alter birthright citizenship, but Congress has never actually passed such legislation.

Unless and until Congress enacts such legislation, the Executive Order contravenes the federal statute, §1401(a).

II

I next address the Fourteenth Amendment issue. As revealed by the Court’s opinion with its detailed account of history and precedent, and by the weighty and thoughtful dissents, the constitutional issue is far more complicated than the statutory issue. After reading those scholarly opinions, one thing seems evident: The constitutional issue is not straightforward, much as we might want it to be. That is another reason why, in my respectful view, the Court should have decided the case on the narrow and straightforward statutory ground. In any event, because the Court addresses the Constitution, and because I respectfully disagree with its analysis of that highly consequential issue, I too will briefly address it.

[…] Wong Kim Ark indicated that the four exceptions were a closed set—meaning that there can be no additional exceptions recognized based on subsequent circumstances or developments. And the decision has consistently been read that way, including by plaintiffs and the Court today.

But Wong Kim Ark’s treatment of the exceptions as a “closed set” is incorrect, in my view. Considering the four exceptions as a permanently frozen or closed set as of the Fourteenth Amendment’s ratification in 1868—such that there can be no subsequent exceptions recognized based on new developments after 1868—is inconsistent with the Court’s longstanding approach to constitutional interpretation in a variety of areas.

To spell that out: The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles—both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the “meaning of rules is constant. Only their application to new situations presents a novelty.” A. Scalia & B. Garner, Reading Law 86 (2012).

* * *

The Citizenship Clause of §1 of the Fourteenth Amendment should be no different. The Court’s 1898 decision in Wong Kim Ark recognized four exceptions that existed as of the Fourteenth Amendment’s ratification in 1868. Therefore, under basic tenets of constitutional interpretation, other exceptions can be recognized when the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the four previously recognized Wong Kim Ark exceptions.

Here, that interpretive principle would support additional exceptions for children born to foreign citizens unlawfully or temporarily in the country.

First, significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868 and that the Framers of the Fourteenth Amendment could not have fully anticipated. And the Framers likely would not have anticipated (and presumably would not have intended) the odd result of granting a substantial birthright citizenship benefit to (i) those foreign citizens who violate U. S. immigration law and illegally enter or overstay and then have children in the United States over (ii) those foreign citizens who follow U. S. immigration law and have children in their home countries while seeking to lawfully immigrate to the United States. Nor presumably would they have wanted to grant constitutional birthright citizenship to children of foreign citizens unlawfully in the country while simultaneously denying constitutional birthright citizenship to children of tribal American Indians. […]

And second, those two categories of foreign citizens—namely, those unlawfully or temporarily in the country—are relevantly similar to the four categories of persons recognized as exceptions in Wong Kim Ark. The only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign. An exception for those born in the United States to foreign parents unlawfully or temporarily in the country is consistent with that principle and therefore with the Fourteenth Amendment.

All of that said, as noted above, Congress in 1940 and 1952 enacted a statute, §1401(a), that at the time and since has always been understood to authorize only the four Wong Kim Ark exceptions. If Congress amends §1401(a) or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster.³

* * *

For those reasons, to reiterate, the Executive Order does not violate the Fourteenth Amendment. But the Order does contravene 8 U. S. C. §1401(a). Consistent with the Fourteenth Amendment, Congress could amend §1401(a) or otherwise enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country. But Congress has not yet done so.

Justice Thomas, with whom Justice Gorsuch joins, dissenting.

This Court’s decision in Dred Scott v. Sandford, 19 How. 393 (1857), would have permanently denied citizenship to blacks as “a subordinate and inferior class.” After the Civil War, the Reconstruction Congress overruled Dred Scott, first with the Civil Rights Act of 1866, then with the Citizenship Clause of the Fourteenth Amendment. Both the Civil Rights Act and the Citizenship Clause guaranteed citizenship to persons born and domiciled in the United States regardless of their race. Neither guaranteed citizenship to persons who were not domiciled in the United States.

Blacks were entitled to citizenship because they were Americans. They had no other homeland, owed no allegiance to any foreign power, and were subject to no other authority. They “fought and bled in the same battles,” “gained and gloried in the same victories,” and were “liable to be called upon to defend [America] in time of war” alongside every other citizen. 2 Life and Writings of Frederick Douglass 256, 266 (P. Foner ed. 1950). The Citizenship Clause thus guaranteed them the “dignity and glory of American citizenship,” so as to ensure that they would never be treated as second class under the law.

* * *

A person was subject to the jurisdiction of the government of his domicile. “Domicil” was “the foundation of jurisdiction over persons.” 1 T. Twiss, The Law of Nations 239 (1861). The government of a person’s domicile had broad power over that person, including with respect to his personal affairs, his conduct abroad, his personal taxes, and the mutual duties of protection and allegiance. So, as the Senator who introduced the Citizenship Clause explained, “the word ‘jurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction … the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Cong. Globe, 39th Cong., 1st Sess., 2895 (1866) (Sen. Howard). After all, Congress “would have no right to make citizens” of “persons temporarily resident.” Id., at 572 (Sen. Trumbull).

Then, as now, governments exercised different types of authority over temporary visitors and permanent residents. A government “do[es] not apply the same Laws in all matters to persons who are only temporarily resident, as it applies to persons who are permanently resident within its territory.” 1 Twiss 217. So, while a government applied its ordinary criminal laws to temporary visitors, it had a wide range of further powers only with respect to persons domiciled within it. For that reason, when someone was present in a territory but had a domicile elsewhere, although he was still amenable to the laws of the host government, that government would describe him as not “subject to our jurisdiction.”

* * *

Congressmen confirmed that the Clause should not be construed to refer to the bare territorial power that a sovereign exercises over all persons in its territory. “I understand the words here, ‘subject to the jurisdiction of the United States,’” Senator Reverdy Williams said, “to mean fully and completely subject to the jurisdiction of the United States.” The Citizenship Clause, Senator Trumbull agreed, “means ‘subject to the complete jurisdiction thereof.’” So, although, “in one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States,” Senator Williams explained, some were not covered by the Citizenship Clause because they “are not subject to the jurisdiction of the United States in every sense.”

The Citizenship Clause, just like the Civil Rights Act, also excluded from citizenship the children of tribal Indians. […] As Senator Trumbull saw it, tribal Indians were excluded because they, like temporary visitors, retained a primary allegiance to, and therefore were subject to, their tribal nation. […]

* * *

The Court’s alternative history is mistaken. The Court’s theory of the Citizenship Clause stands on three main pillars: Calvin’s Case, Lynch v. Clarke, and Wong Kim Ark. None can justify the Court’s decision today.

The first pillar of the Court’s theory is Calvin’s Case, a 418-year-old English common-law decision. […] The English principle was a rule of feudal servitude, not a rule of citizenship. “[I]n England there was no such thing as a citizen.” The English principle instead determined a person’s permanent feudal bondage to the King, which he could not unilaterally abandon. It was based on the notion that “[a] man owed personal service to the lord of the soil, the same as his master owed it to the king; and it was born with the child and only ended in the grave”—a relation of “master and servant.”

The second pillar of the Court’s theory is Lynch v. Clarke—a “single state-court case about citizenship,” from 1844. The Court’s reverence for it is not commensurate with its importance. Lynch was not a precedent of this Court, or any federal court, or any state appellate court, or even a court of law. Instead, it was decided by a New York “assistant vice-chancellor” in a court of equity’s equivalent to a trial court, and his opinion on Julia Lynch’s citizenship was apparently never reviewed by any appellate court. Within a year, New York replaced the law he interpreted; the State shut down his court two years later. So, while this Court’s opinion invokes Lynch 13 times in 26 pages, the entire Reconstruction Congress in the combined course of deliberations over the Civil Rights Act and the Citizenship Clause mentioned it only once.

The third pillar of the Court’s theory is Wong Kim Ark. The question before the Court today—whether the Citizenship Clause requires the President to recognize citizenship for the children of all lawful temporary visitors and illegal aliens—was not before the Court in Wong Kim Ark. Instead, the Wong Kim Ark Court held that someone born in America to parents domiciled in the United States was a citizen. It rejected the Government’s argument that Wong’s parents had to be citizens for him to be a citizen at birth.

The Citizenship Order is fully consistent with this decision. Under the Order, people like Wong remain citizens […].

The Court does not ordinarily put so much weight on past decisions’ discussion of matters not before the Court. “It is a maxim not to be disregarded,” this Court has always admonished, “that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821). Thus, if they “go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Ibid.

Wong Kim Ark also repeatedly emphasized that its holding was limited to domiciliaries. It did so seven times in the first paragraph and repeatedly after that. And, presciently, Wong Kim Ark itself invoked this Court’s oft-repeated reminder that “general expressions” that “go beyond the case” should not “control the judgment in a subsequent suit when the very point is presented for decision.” Id., at 679.

It is not surprising that Wong Kim Ark limited its holding to domiciliaries. The Government in Wong Kim Ark stipulated that Wong was domiciled in the United States and argued that domicile was irrelevant. The Court thus had little reason to consider what rule would apply to a temporary visitor.

If Wong Kim Ark were so “simple” in establishing the Court’s rule as to temporary visitors, that meaning was seemingly lost on many. As a Department of Justice report confirmed in 1910, a dozen years after Wong Kim Ark, “it has never been held, and it is very doubtful whether it will ever be held, that the mere act of birth of a child on American soil, to parents who are … temporarily in the United States, operates to invest such child with all the rights of American citizenship.”

* * *

The Court today takes the extraordinary step of holding facially unconstitutional the President’s Order excluding from citizenship the children of foreign temporary visitors and illegal aliens. In doing so, the Court adds to the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support. Because many potential applications of the President’s Order are consistent with the original public meaning of the Citizenship Clause, I respectfully dissent.

Justice Alito, dissenting.

This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake. As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home. Careful analysis of the text of the Fourteenth Amendment and the process that led to its adoption shows that it does not degrade the concept of United States citizenship in this way. Instead, the Fourteenth Amendment confers citizenship on only those children who, at birth, owe allegiance solely to this country.

* * *

In tackling that question, an avowedly textualist Court should start by carefully examining the text of the Citizenship Clause of the Fourteenth Amendment. […]

Thus, birthright citizenship has two separate elements. First, a person must be “born in the United States,” and second, he or she must be “subject to the jurisdiction thereof.” It is therefore critical to ascertain the meaning of “subject to the jurisdiction thereof.” And that is no easy task because, as we have often remarked, jurisdiction is a term of many meanings.

If “subject to the jurisdiction” of the United States had been a term of art during Reconstruction, we would presumably hold that the phrase has that meaning in the Fourteenth Amendment. But that phrase was not a term of art, and the Court does not claim it was.

If the Citizenship Clause set out specifically named exceptions to the general rule of citizenship by birth, our job would be easy; we would follow those exceptions. But the Clause is framed differently. It sets out a general rule: Citizenship is not conferred upon a person born in the United States unless that person is also “subject to the jurisdiction” of the United States. By its terms, that rule applies across the board.

So what does the phrase “subject to the jurisdiction thereof” mean? Unfortunately, the text of the Fourteenth Amendment does not provide a definitive answer, but it supplies two valuable clues.

First, §1 of the Fourteenth Amendment uses the word “jurisdiction” twice—once in the Citizenship Clause and once in the Equal Protection Clause—and the wording of the two clauses differs. The Citizenship Clause applies to those “subject to the jurisdiction” of the United States, whereas the Equal Protection Clause applies to “any person within” a State’s “jurisdiction.”

* * *

Third, the Court cannot explain why the phrase “subject to the jurisdiction” of the United States applies to naturalized citizens. All naturalized citizens, like everyone else who is present in this country, must obey the law, so if that phrase meant what the Court thinks, it is superfluous. By contrast, if it means not being “subject to any foreign power,” it serves an identifiable purpose and explains why the naturalization statutes, both before and after the adoption of the Fourteenth Amendment, required those seeking naturalization to renounce allegiance to any other country.

For these reasons, the Court’s interpretation of the Fourteenth Amendment’s Citizenship Clause fails on textualist grounds.

* * *

[Wong Kim Ark] provides the strongest support for today’s decision, but its holding is not controlling, and I would not allow the meaning of American citizenship to be forever dictated by the opinion’s dubious dicta. Wong Kim Ark cautioned against assigning too much weight to dicta, 169 U. S., at 679, and it is appropriate to apply that same advice to the opinion in Wong Kim Ark itself.

* * *

And dicta it is. Sometimes it is not easy to determine the exact contours of a decision’s holding, but the opinion in Wong Kim Ark obviates that problem. At the end of the opinion, the Court clearly spells out exactly what it held:

“[A] child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.” Id., at 705 (emphasis added).

Thus, the holding of the case was limited to a child born in the United States to parents who were not citizens but had established “a permanent domicil and residence” here. Many other key passages in the opinion confirm this fact:

• “[W]hen the parents are domiciled here[,] birth establishes the right to citizenship,” id., at 692;
• The Citizenship Clause “includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” id., at 693;
• “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States,” ibid.

The Court dismisses these pointed and repeated references to domicile, arguing that domicile was merely an incidental fact and not an element of the holding. But Justice Gray had a good reason for pointing out that Wong Kim Ark’s parents had established their domicile here. A person’s domicile is the place where he or she intends to live indefinitely. Therefore, the fact that they had established domicile here meant that they wanted to make the United States their home.

When we understand the situation Wong Kim Ark and his parents faced, their domicile in the United States takes on a special meaning. If they had been white or black, they could have applied for naturalization. But because they were Chinese, the law forbade their naturalization. By establishing domicile, they had done everything within their power to express their desire and intent to become Americans. If the Court had not interpreted the Citizenship Clause in the way set out in the holding, the result would have been a population permanently caught in limbo. The Chinese immigrants who were lawfully present before the enactment of the Chinese Exclusion Act in 1882, as well as all their descendants, could never become citizens no matter how much they wanted to be Americans, no matter how deep their roots in this country, and no matter how substantial their contributions to our society.

Wong Kim Ark is therefore best understood as holding that people who are lawfully present here, establish the United States as their intended permanent home, and do everything within their power to become United States citizens can be seen as no longer subject to any foreign power. Thus, their children are born citizens under the Fourteenth Amendment.

* * *

Respondents’ claim in this case is that Executive Order No. 14160 is unconstitutional on its face. To prevail, they must show that “no set of circumstances exists under which the [Executive Order] would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). Showing merely that the Order is valid as applied to a child born to a birth tourist would be enough to defeat that claim. That is why the Court goes out of its way to hold that even a child born to a mother who is here for only a brief time is a citizen under the Fourteenth Amendment.

Justice Gorsuch, dissenting.

At the heart of today’s dispute lie two competing views of the Fourteenth Amendment’s Citizenship Clause. On one account, the Clause incorporated the English common law rule of jus soli (literally, the “right of the soil”). That rule, developed in feudal times, had more to do with being a subject than a citizen. […] On the other account, the Clause adopted a distinctly American settler’s view of citizenship. One that promises the full “dignity and glory of American citizenship” to any child born in this country to parents who have made this Nation their permanent home, regardless of their race, religion, or national origin. Plessy v. Ferguson, 163 U. S. 537, 555 (1896) (Harlan, J., dissenting). To my eye, the latter understanding better accords with the Clause’s original public meaning and that leads me to join Justice Thomas’s dissent.

I write only to emphasize a few points. First, the understanding Justice Thomas and I share of the Citizenship Clause is consistent with this Court’s holding in Wong Kim Ark. […] What matters isn’t whether a child’s parents are citizens. What matters is whether they (and, by law, their child at birth) have made this place their home and are thus “domiciled within the United States.”

Second, respondents chose to pursue a facial challenge to the executive order at issue in this case and secured below a preliminary injunction barring every one of the order’s potential applications. Under this Court’s precedents, we can sustain that injunction only if “no set of circumstances exists” in which the order may be applied lawfully. Salerno, 481 U. S., at 745. That is a demanding standard, and it is not met here. […] By definition, temporary visitors to this country do not choose to make a permanent home here, and their children thus cannot claim the privilege of citizenship. Because the executive order is lawful at least to this extent, respondents’ facial challenge must fail.

Finally, just because the executive order has some lawful applications and can survive a facial challenge does not mean it is lawful across the board and immune from narrower legal challenges. Besides addressing temporary visitors, the order also denies the benefits of citizenship to children born in this country to parents who make their permanent home here, but do so in defiance of federal immigration laws. The government insists that aspect of the order can survive any possible legal challenge, too, because individuals can secure domicile in this country only if they do so in compliance with federal law.

About that, however, I harbor doubts. Perhaps Wong Kim Ark does not squarely foreclose the government’s position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents’ presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court’s longstanding recognition that every person is domiciled somewhere? Because the executive order is not facially invalid, these questions may not be properly before us. But their answers are undeniably important to a Nation committed to a view of citizenship open to all children born here to parents who can call this country their home.

Notes & Questions

1. Big picture. Marbury said it is “emphatically the province and duty of the judicial department to say what the law is.” Justice Kavanaugh’s answer here is: not necessarily this law, and not today. He thought §1401(a) decided the case, that the statutory question was “straightforward” while the constitutional one was not, and that the Court “should have decided the case on that narrow ground.” He is describing what is usually called constitutional avoidance — the practice of resolving a case on a non-constitutional ground where one is available. Notice what avoidance actually costs and buys here. If the Court had taken the off-ramp, the Executive Order falls today and Congress can undo that result next session with an ordinary statute. Because the Court did not take it, the Order falls permanently and only a constitutional amendment can change it. Which outcome is more respectful of the political branches — and is “judicial restraint” even the right label for the narrower path when the narrower path is also the one that leaves the President’s position available for future adoption?

2. The holdings, precisely, and the arithmetic. State three things separately, because they do not travel together. (a) The judgment: affirmed, 6–3. (b) The constitutional holding: children born here to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth — five votes (Roberts, Sotomayor, Kagan, Barrett, Jackson). (c) The statutory holding that Kavanaugh alone reaches: the Order contravenes 8 U. S. C. §1401(a), which incorporated Wong Kim Ark’s four exceptions when Congress reenacted the constitutional language in 1940 and 1952. Now the harder question: is the constitutional holding a holding of the Court, given that a sixth Justice concurred only in the judgment and expressly rejected it? Compare how you would treat a 4–1–4 plurality. Then state the four Wong Kim Ark exceptions from memory, and say which one Congress eliminated by statute in 1924 and how. Keep this problem in your pocket: you will meet a harder version of it in Module 3, in NFIB v. Sebelius, where five Justices agreed the individual mandate exceeded the commerce power and the mandate was upheld anyway.

3. Practice hypo. Take Kavanaugh’s invitation literally. It is January 2027 and Congress passes the Birthright Citizenship Clarification Act, amending §1401(a) to exclude children born to parents unlawfully or temporarily present. The President signs it. A child born in Rhode Island in March 2027 to a mother on a six-month tourist visa sues. (a) Does the majority opinion in Barbara resolve the case, or is the statute a genuinely open question? (b) Does stare decisis bind a future Court to Part III–B of the majority — the Schooner Exchange analysis — when only five Justices signed it? (c) Kavanaugh says such a statute “would pass constitutional muster.” Count the votes on the current Court for that proposition, using this opinion alone. (d) Draft the two-sentence core of the complaint, and then the two-sentence core of the motion to dismiss.

4. Attack the reasoning. Every opinion here is originalist, and they land in four places. That is the point worth pressing. The majority reads “subject to the jurisdiction” through Marshall’s Schooner Exchange sense of territorial power. Thomas reads the same words as the 19th-century idiom for the relation of a domiciliary to his home nation, and marshals treatises and Senate floor statements — Howard’s “full and complete jurisdiction,” Trumbull’s “complete jurisdiction” — that the majority must characterize as “ambiguous.” Alito’s textual argument is sharper still: §1 of the Fourteenth Amendment uses “jurisdiction” twice, and the Equal Protection Clause says “within its jurisdiction” while the Citizenship Clause says “subject to the jurisdiction.” On ordinary textualist premises, different words in the same sentence mean different things. What is the majority’s answer to that? Find it in Part III–B and evaluate whether it is an answer or a change of subject. Then ask the harder methodological question: if a method this rigorous produces four incompatible results in a single case, what work is the method actually doing?

5. Creative thinking — the dicta problem, and then rewrite the Clause. Alito’s strongest move is not about 1868 but about 1898. He quotes Wong Kim Ark’s own final statement of its holding, which expressly names “a permanent domicil and residence in the United States,” and argues that everything broader in that opinion is dicta — invoking Wong Kim Ark’s own warning against over-reading general expressions. Thomas adds that the Wong Kim Ark Court said “domiciled” seven times in its first paragraph alone. The majority answers that “the reasoning underlying” the holding cannot be squared with a domicile requirement. Who has the better of it — and, more generally, when a 128-year-old precedent’s stated holding is narrower than its reasoning, which one is the precedent? Then the constructive half: redraft the Citizenship Clause so that it unambiguously adopts (a) the majority’s rule, and (b) Thomas’s rule. Keep each under thirty words. If the drafting is easy, ask why the Thirty-Ninth Congress did not do it — and whether the absence of the words “mother,” “father,” “lawful,” and “temporary” from the Clause is the majority’s strongest argument or merely its neatest one.

Footnotes

1. In full, the Executive Order declares that “the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary … and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.” Exec. Order No. 14160, 90 Fed. Reg. 8449 (2025). ↩

2. Justice Kavanaugh proposes a similar ad hoc exception to his own interpretation of the Citizenship Clause. Under his rule, the Clause generally does not promise citizenship to children whose parents are “not U. S. citizens.” Yet it must grant citizenship under the “facts and circumstances” presented in Wong Kim Ark—even though Wong’s parents were not U. S. citizens. Like the exception proposed by Justice Alito, Justice Kavanaugh’s exception is at war with his supposedly “unifying” principle of the Clause. ↩

3. Nothing in this opinion is intended to suggest how birthright citizenship should be addressed as a policy matter. ↩