On April 1, 2026, the Supreme Court heard oral arguments in Trump v. Barbara, a case challenging birthright citizenship for illegal immigrants. The initial case challenged Executive Order (EO) 14,160, which purported to end birthright citizenship for the children born in the United States, but who were born to parents who were illegal immigrants. Earlier courts had ruled against Donald Trump and in favor of “Barbara” (a pseudonym to protect the identities of the plaintiffs, due to their status as illegal immigrants and concerns over current Immigrations and Customs Enforcement (ICE) raids), and Trump was appealing.
Birthright citizenship comes from the 14th Amendment to the US Constitution, which passed in 1868 and states “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”. It prevents states from depriving citizens from their rights, including due process, and grants them equal protection of the law. This was initially passed in 1868 to grant citizenship to former slaves who had been freed by the Emancipation Proclamation, and is still part of the Constitution to this day.
In 1898, the Supreme Court affirmed that this applied to US-born children of people who were not themselves US citizens in United States v. Wong Kim Ark, the child of Chinese immigrants who had temporarily travelled back to China, and was denied re-entry as a non-US citizen under the Chinese Exclusion Act. Wong Kim Ark sued, and the Supreme Court ruled in his favor that he was a citizen, and had been illegally denied entrance to the country. The case hinged on the specific meaning of “subject to the jurisdiction thereof”, which the Court decided meant almost anyone in the United States, because immigrants (legal or illegal) are subject to US laws, and therefore are within their jurisdiction.
The exceptions to this – to the “almost anyone” protected under the 14th Amendment – is one of the key elements of this case. Currently, as established by Wong Kim Ark and refined by later cases, there are three major exceptions: children of certain indigenous tribes who are born into said tribes, children of diplomatic officials who were born in the US while their parents were visiting or residing there on behalf of a foreign country (such as the children of foreign ambassadors), and children whose parents were part of a foreign invading force and were born in the US during said invasion. These are simplified to say that birthright citizenship does not apply to someone who pays allegiance to a foreign country.
This is ultimately the central argument in Trump v. Barbara. Trump is making the case that illegal immigrants, as non-citizens themselves, still pay allegiance to a foreign country, and therefore are not “subject to the jurisdiction” of US law. Barbara is making the case that, in practicality, illegal immigrants are still held to the same laws as US citizens and legal non-citizen immigrants, in that they could still be held legally accountable without involving diplomatic or international law, and therefore are “subject to the jurisdiction” of US law.
During oral arguments, right out of the gate, Chief Justice John Roberts seemed skeptical of the arguments that illegal immigrants pay allegiance to a foreign power and are therefore non-citizens, saying “the examples you give to support that strike me as very quirky, you know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens… I’m not sure how you can get to that group from such tiny and sort of idiosyncratic examples.” Justice Sonia Sotomayor similarly seemed skeptical, bringing up a quote from the Wong Kim Ark directly that says “it is well-known that by the public law, a non-citizen, while he is here in the United States, owes obedience to this country’s laws”.
Even Justice Samuel Alito, often considered to be one of the most staunchly pro-Trump justices (such as in the recent tariff case), seemed skeptical of the arguments made by the government. He considered this to be an issue of a general rule created with an unforeseen future application. Essentially, “general rule” theory boils down to this example (popularized by the late Justice Antonin Scalia): A statue punishing theft is passed. Years later, the microwave is invented, and some time after, a man steals one. The man argues that, since microwaves did not exist when the statue was passed, it could not have foreseen this situation, and therefore this falls outside of its jurisdiction. However, since the “general rule” punishing theft of physical property with a certain monetary value still includes the microwave, the man is still able to be charged with theft. Alito appeared to consider this to be a case where the specific situation (illegal immigration) was not considered at the time of its passing due to not being an existing concept, and the logical extension of the general rule created should include illegal immigrants, and therefore, until proven otherwise, children of illegal immigrants should be considered protected by the general rule of birthright citizenship. The government tried to argue that the general rule applied should instead be considered the foreign allegiance exception, though given this is known as the exception, the justices seemed to be of the opinion that definitionally could not be the general rule.
Justice Neil Gorsuch appeared to consider the key element of the government’s argument to be around the word “domicile”, and whether or not it implies temporary or permanent residence. Gorsuch pointed out that, at the point the 14th Amendment was passed, there were no laws restricting who could be there, saying “if somebody showed up here in 1868 and established domicile, that was perfectly fine without respect to anything, any — any immigration laws. There they were.” He even goes further to conclude that “the fact someone might be illegal is immaterial” to whether or not the 14th Amendment applies, as illegal immigration was not a concept at the time. (I will fact check him slightly on this claim; he was accurate that there were no restrictive immigration laws in 1868, though his argument put the first one in the 1880s, an apparent reference to the Chinese Exclusion Act of 1882; however, the first one was actually the Page Act in 1875. It doesn’t disprove his point, but I wanted to correct this nonetheless.)
However, it was a different comment from Gorsuch that is likely the most telling moment of the oral argument. The government’s attorney, solicitor general John Sauer, tried to quote from Wong Kim Ark, but Gorsuch interrupted him before he could even make the argument, saying “I’m not sure how much you want to rely on Wong Kim Ark“. That is basically an acknowledgement that the current case law does not support the government’s claims.
Most of the justices seemed skeptical of the government’s arguments in general, though Brett Kavanaugh was likely the friendliest towards them. He actually seemed to agree with the logical argument from a policy perspective, though his main concern was over if the legal precedent supported it, and the government’s overreliance on foreign examples rather than US law to make their case.
I would recount more of the arguments made by Cecilia Wang on behalf of Barbara in this case, though I do not think people want to read me recounting arguments of word count here, and that genuinely accounts for a substantial percentage of the arguments made. The overview is that Wang tried to argue that the definition of “domicile” was irrelevant to the ruling in Wong Kim Ark, the justices pointed out that the word appeared 20 times in the decision, and then they went back and forth on whether or not that constituted a reasonable number to be just sprinkled throughout as part of a general discussion, or if it was an active focus. (The decision has about 25,000 words, making “domicile” appear once every 1,225 words, roughly speaking. For reference, in this article, it appears about once every 425 words.)
The main point that Wang made is that the “foreign allegiance” exception was for people over whom the US government could exert some maximum amount of power. For instance, diplomatic immunity or tribal sovereignty would give those populations some protection against the US government. However, illegal immigrants would have no such protections against the maximum power of the US government.
Alito did bring up several points about how, hypothetically, a child of immigrant parents could be born in the US, but still a national of their parent’s country due to that country’s citizenship laws, and therefore subject to that country’s mandatory military service laws (or other similar jurisdiction). He challenged that this meant they still owed some allegiance to a foreign power, and therefore would fall under the foreign allegiance exception. He specifically cited to the 1866 Civil Rights Act citizenship test (which was passed before the 14th Amendment) as creating a stronger test than “subject to the jurisdiction” of US laws, compared to its language saying that a US citizen is “not subject to any foreign power”. However, Wang made the argument that this would also therefore apply to the children of non-citizen legal residents or naturalized citizens of those countries and thereby deny them birthright citizenship as well, and no one in this case is arguing that they are not citizens if born here, and that while their parents’ status may be different, this does not mean the children have legally distinct statuses.
Overall, I do think that Wang’s arguments were more accepted than Sauer and the government’s, though there were some concerns particularly related to who is considered to be permanently residing in the US for the sake of this law. Generally, based on the arguments made and the questions asked, I think it’s likely that Barbara will win. Roberts and Sotomayor, along with Justices Elena Kagan and Ketanji Brown-Jackson, seemed to be the most strongly in agreement with Barbara. I think it likely that at least one of Alito, Gorsuch, and Justice Amy Coney-Barrett will also join with them, creating a 5-person majority. Kavanaugh seems to be the most likely vote against, with Justice Clarence Thomas also seeming more skeptical of the arguments for Barbara. However, we will not know until this decision is released.
All sources were either from the transcript, submitted briefs, or cited laws and amendments.