Trump DOJ Reimagines Birthright Citizenship History for Justices

The Trump administration is trying to convince the Supreme Court that a long-held consensus regarding near-universal birthright citizenship actually conflicts with the original understanding of the Constitution’s Fourteenth Amendment.

What started as an argument floated by Donald Trump during his 2016 presidential campaign is one now argued by Solicitor General John Sauer in a 66-page brief, as well as by friend-of-the-court filings by Republican lawmakers and state attorneys general that assert birthright citizenship shouldn’t extend to children of people in the US illegally or temporary visa holders.

Their arguments rely on a mix of historical references and centuries-old legal commentaries, an approach most historians and legal scholars of birthright citizenship say cherry-picks, or even distorts, the historical record, while misinterpreting the consequences of Supreme Court precedent and modern statutes.

The government “blatantly mischaracterized the historical record in at least some portions of their brief,” said University of Virginia law professor Amanda Frost.

In advance of the April 1 argument, the administration cites supportive scholarship from a a trio of academics—Ilan Wurman of University of Minnesota; Samuel Estreicher of New York University; and Kurt Lash of the University of Richmond—who all published papers in 2025 arguing some questions around birthright citizenship remain unsettled.

Rogers Smith, a professor emeritus of political science at the University of Pennsylvania, who co-authored a 1985 book arguing automatic birthright citizenship isn’t mandated by the Constitution, called the administration’s brief a “competent statement.” Yet he said it “entirely ignores” language in the Fourteenth Amendment that would prevent Trump from altering prevailing interpretations of citizenship via executive order.

“There is nothing new about these scholarly debates,” said Northeastern University law professor Rachel Rosenbloom, calling the theories offered by Trump and other academics a revival of arguments that failed 128 years ago.

‘Subject of Jurisdiction’

Sauer, the Justice Department’s top appellate lawyer, admits in his brief that his position clashes with modern understandings of the Fourteenth Amendment’s citizenship clause, which says people born in the US, “subject to the jurisdiction thereof, are citizens of the US.”

But he argued that misreads the amendment’s intention to limit birthright citizenship to those subject to US political jurisdiction, which depends on whether a person owes sufficient allegiance to the US. Children of illegal immigrants and “temporarily present aliens” can’t establish that, Sauer argued.

He cites a range of late 19th and early 20th century commentators that “are valid evidence of views at those times,” said Smith.

Wurman, who’s research is cited in the brief, said in an interview that the sources reflect the dialogue of that period, which focused on temporary residents and didn’t touch on illegal immigrants. The legislative history, he argued, also showed lawmakers interested in citizenship for freed slaves.

But Sauer misrepresents important aspects of the amendment’s 1868 ratification, Frost said. She pointed to a claim by the DOJ that lawmakers “agreed” the amendment wouldn’t cover someone “born here of parents from abroad temporarily in this country.”

That statement is contradicted by a notable exchange in which a lawmaker said the amendment would apply in such a scenario, Frost said.

The Justice Department didn’t return a request for comment on its historical citations.

Wong Kim Ark

Other sources invoked by Sauer resurface prior attempts to redefine the Fourteenth Amendment, said Samuel Erman, a historian at the University of Michigan Law School.

Sauer invoked Francis Wharton and Alexander Porter Morse, lawyers who pushed theories that would’ve limited birthright citizenship for Chinese immigrants, Erman wrote in a recent paper.

The Supreme Court rejected that effort in its landmark 1898 ruling in US v. Wong Kim Ark, which established birthright citizenship for a Chinese man born in the US to parents subject to the emperor of China but domiciled in the US.

“To a surprising degree, they’ve not come up with anything new,” Erman said.

Sauer claims Wong Kim Ark doesn’t hurt Trump’s order, since the ruling dealt with a child born to people who were legally admitted to the US and “enjoying” permanent domicile and residence. That argument, which lower courts have rejected, claims the justices haven’t weighed in on children of illegal immigrants or lawful temporary residents.

“Anybody who thinks Wong Kim Ark settled the question presently before the court must not be reading the same opinion,” Wurman said. “These two categories of people at issue here are not lawfully here and are not domiciled.”

20th Century

Even so, critics have pointed to immigration laws enacted in the mid-20th century that affirmed prevailing interpretation of automatic birthright citizenship. The Boston-based US Court of Appeals for the First Circuit in an October order also cited that legal framework in ruling against the administration.

Sauer argues “that 20th-century development came too late,” as constitutional provisions must be interpreted in accordance with what they were understood to mean when adopted.

“That’s not how statutory interpretation normally works,” said Frost. “Regardless of what the Constitution means, if there’s a statute, it can grant citizenship beyond what the Constitution grants.”

The case at issue before the court involves three children born in the US in 2025 and their parents, who successfully brought a would-be class action last June in New Hampshire federal court.

Trump’s order said it would only apply to children born 30 days after its release on Jan. 20, 2025. But the justices will have to grapple with the “practical consequences” of Trump’s constitutional argument, which would mean “it applies since 1868,” said UC Davis Law professor Gabriel “Jack” Chin.

While the court’s conservative majority has ruled for the administration in several cases expanding presidential power, Rosenbloom said she expects the justices to be less willing to side with it here, given the the weight of historical evidence.

“Some parts of the president’s agenda dovetail with trends in Supreme Court jurisprudence that were already underway,” Rosenbloom said. “But stripping Americans of birthright citizenship does not fall into that category.”