DOJ Backs Birthright Citizenship Curbs With ‘Fringe’ Scholarship

The Trump administration is citing a short student piece to defend the legality of the president’s executive order restricting automatic birthright citizenship.

Among other scholarship referenced in the administration’s emergency request to the US Supreme Court is an article from a conservative advocate at the Heritage Foundation. In it, Amy Swearer, a senior legal fellow with group, cites arguments made by John Eastman, Donald Trump’s former lawyer who’s facing disbarment for trying to overturn the 2020 election results.

Legal scholars say the government’s references show the administration can’t credibly claim the Constitution doesn’t guarantee citizenship to everyone born in the US. The Supreme Court will hear arguments Thursday in the government’s challenge to rulings blocking Trump’s restrictions nationwide.

“The sources that the executive branch are citing are radical, fringe views,” said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School. “They are not accurate, thorough, complete understandings of the Fourteenth Amendment.”

Law Student Work

The Trump administration argues the citizenship clause of the Fourteenth Amendment expressly excludes people who aren’t subject to the political jurisdiction of the US and therefore requires one parent of the baby to be a US citizen or a green card holder.

Members of Congress expressed a similar understanding during debates over the Fourteenth Amendment and the Civil Rights Act of 1866, then-acting US Solicitor General Sarah Harris told the Supreme Court in the government’s emergency application.

She pointed to a 2010 comment Mark Shawhan, then a Yale Law Student, wrote for the school’s law journal highlighting a private letter Sen. Lyman Trumbull of Illinois sent to President Andrew Johnson. Trumbull wrote a similar citizen provision in the Civil Rights Act of 1866 and was interpreting the bill’s citizenship guarantee more narrowly by not extending it to children whose parents are only transiently present in the US.

The letter was part of Shawhan’s research for an article the Harvard Latino Law Review published two years later in which he argues children born in the US are citizens regardless of their parents’ immigration status. He wrote Trumbull’s view seems not to have been expressed publicly nor was it shared by other members of Congress.

“They’re citing a guy who, in the very article they’re citing, specifically rejects the constitutionality of one part of the executive order and who later went on to say that no part, effectively, of this executive order is constitutional,” said Evan Bernick, a constitutional law professor at Northern Illinois University College of Law. He co-authored a book on the original meaning of the Fourteenth Amendment with Georgetown Law professor Randy Barnett.

Shawhan declined a request to comment on the administration’s use of his work.

Prevailing Viewpoint

Though Trump isn’t directly asking the Supreme Court to rule on the Constitutionality of his order, the Justice Department will need to show it’s likely to succeed on the claim that the directive is legal to get the justices to narrow the lower court injunctions that blocked its effect nationwide.

The article the government cites from Swearer was published in the Texas Review of Law & Politics, a conservative law journal, in 2019. Harris in the Solicitor General’s Office misdated the piece as publishing in 2000, which was 17 years before Swearer graduated from law school.

Swearer argues in people in the country illegally or temporarily aren’t entitled to birthright citizenship under the Constitution. In an interview with Bloomberg Law, she acknowledged her conclusion isn’t the prevailing viewpoint among academics.

“It didn’t start off as a law review article,” Swearer said. “It started out as me trying to prove why we shouldn’t take this position as an institution and I proved myself wrong.”

Bernick said the Heritage Foundation has been a means through which a lot of birthright arguments have gotten into circulation.

Swearer’s article cites the views of Eastman and Michael Anton, who’ve both argued against birthright citizenship. Anton served as a senior fellow at the conservative Claremont Institute, which was founded by Eastman. He’s now the State Department’s policy planning director.

“It is telling both that some of the folks who are coming up with implausible arguments seem to have major political commitments, maybe more so than they do sincere academic commitments,” said Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project.

Swearer pushed back against those criticizing her work. In the 75-page article, she said, she has hundreds of well-documented footnotes that make an originalist argument for why the Fourteenth Amendment and the citizenship clause are being misinterpreted.

“These are not my opinions,” she said. “I am quoting verbatim what people at the time actually thought and how they understood them.”

In cases at the Supreme Court, parties typically cite former court decisions in their favor or rulings in similar cases that could persuade a court to rule for them.

“Here, the executive branch cannot cite one single case that supports its position on the merits,” Mukherjee said, noting that its position has been rejected so far by every federal courts that’s considered it.

“The Trump administration’s position has no basis in law, has no basis in the Constitution,” she said.

The case is Trump v. Casa Inc., U.S., No. 24A884, argument 5/15/25.