The Scholars Behind the Birthright Fight: Inside the Legal Campaign to Rewrite the 14th Amendment

On April 1, 2026, President Donald Trump took an extraordinary step: he walked into the Supreme Court chamber to watch oral arguments in Trump v. Barbara, a case testing whether his executive order restricting birthright citizenship can survive constitutional scrutiny [1]. The case, which pits the administration's restrictive reading of the 14th Amendment against more than a century of legal consensus, has drawn 18 amicus briefs in support of the government's position [2]. Behind those briefs stands a network of legal scholars, think tanks, and advocacy organizations whose arguments — once considered fringe — have reached the highest court in the land.

The question before the justices is deceptively simple: Does "subject to the jurisdiction thereof," a six-word qualifier in the Citizenship Clause of the 14th Amendment, mean what most constitutional lawyers have long assumed it means? Or does it contain a hidden limitation that would deny automatic citizenship to an estimated 260,000 children born each year to unauthorized immigrant parents [3]?

The Executive Order and Its Legal Journey

Executive Order 14160, signed in January 2025, directed federal agencies to stop issuing citizenship documents to children born in the United States whose parents were both undocumented immigrants or whose mother held only temporary legal status and whose father was not a citizen or permanent resident [4]. The order was immediately challenged in multiple federal courts.

Federal judges in Washington State, Maryland, Massachusetts, and New Hampshire issued preliminary injunctions blocking enforcement [5]. In Barbara v. Trump, a New Hampshire district court granted provisional class certification covering all babies born on or after February 20, 2025, preventing the administration from enforcing the order against them [5].

In June 2025, the Supreme Court intervened — but not on the merits. In Trump v. CASA, Inc., the Court curtailed the use of universal injunctions, ruling that such sweeping court orders "lack a historical pedigree and fall outside the bounds of a federal court's equitable authority" [6]. The decision narrowed the injunctions' scope without resolving the underlying constitutional question, and in December 2025, the Court agreed to hear the merits in Trump v. Barbara [7].

The Scholars Making the Case

The legal scholars backing the administration's position share a common thesis: that the Supreme Court's 1898 decision in United States v. Wong Kim Ark — the foundational precedent for birthright citizenship — does not settle whether children of unauthorized immigrants are entitled to citizenship at birth.

Ilan Wurman, a law professor at the University of Minnesota, has become the most prominent academic voice for the restrictive reading. In a paper published in the Harvard Journal of Law and Public Policy and a subsequent amicus brief filed with the Supreme Court, Wurman argues that birthright citizenship under both English common law and the 14th Amendment was available only to children of parents "under the sovereign's protection" — meaning those with a recognized legal presence [2][8]. Wurman contends that the leading drafters of the Civil Rights Act of 1866 and the 14th Amendment "presumed temporary visitors would be excluded from birthright citizenship" [8].

Richard Epstein, a prominent libertarian law professor, goes further. In his amicus brief, Epstein uses early naturalization laws to argue that "subject to the jurisdiction" excludes the children of undocumented immigrants, and claims Wong Kim Ark was "wrongly decided" [2].

John Eastman, through the Claremont Institute's Center for Constitutional Jurisprudence, filed a brief citing 19th-century constitutional scholar Thomas Cooley and pointing to the Indian Citizenship Act of 1924 as evidence that Congress did not understand the 14th Amendment as automatically conferring birthright citizenship on all persons born on U.S. soil [9]. Eastman, who is most widely known for his role in advising President Trump's efforts to overturn the 2020 election results, has long argued for the restrictive interpretation [9].

Former U.S. Attorney General Edwin Meese filed a separate brief citing historical executive branch practice [2]. Senator Ted Cruz and other members of Congress submitted a brief addressing "birth tourism," citing estimates of 750,000 to 1.5 million Chinese nationals born as U.S. citizens [2].

Several of these scholars have institutional ties to conservative legal organizations. Eastman leads the Claremont Institute's constitutional law center [9]. Meese has long been affiliated with the Heritage Foundation, which has published multiple commentaries arguing that birthright citizenship rests on "a fundamental misunderstanding of the 14th Amendment" [10]. The Federalist Society, while taking no official position on policy questions, has hosted forums and debates featuring restrictionist arguments and has honored scholars sympathetic to the position, including Wurman [11].

The Constitutional Text and Its Contested History

The 14th Amendment, ratified in 1868, reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The language derived from the Civil Rights Act of 1866, which granted citizenship to "all persons born in the United States, and not subject to any foreign power" [12].

The restrictive scholars emphasize a distinction between two types of jurisdiction. Senator Lyman Trumbull, a key architect of the 14th Amendment, stated during floor debates that "subject to the jurisdiction" meant "not owing allegiance to any other country" [12]. Under this reading, "jurisdiction" requires not merely physical presence within U.S. territory — which subjects a person to U.S. criminal and civil law — but a deeper political allegiance akin to permanent membership in the body politic.

The expansive reading, endorsed by the majority of constitutional scholars, holds that the qualifier was intended to exclude only narrow categories: children born to foreign diplomats, children of enemy soldiers in hostile occupation, and — at the time — members of Native American tribes who maintained separate political sovereignty [12]. The Supreme Court in the Slaughter-House Cases (1872) stated the phrase was intended to exclude "children of ministers, consuls, and citizens or subjects of foreign States born within the United States" [12]. In Elk v. Wilkins (1884), the Court denied citizenship to a Native American man because he "owed immediate allegiance to" his tribe [12].

The restrictionists point to Elk v. Wilkins as proof that mere birth on U.S. soil was never sufficient. The expansionists note that Congress resolved the Native American question definitively with the Indian Citizenship Act of 1924, and that the Wong Kim Ark decision in 1898 established the controlling rule: anyone born in the U.S. whose parents were not diplomats or enemy occupiers is a citizen [13].

Wong Kim Ark: The Precedent and Its Limits

In 1898, the Supreme Court ruled 6-2 in United States v. Wong Kim Ark that a man born in San Francisco to Chinese parents who were legal residents — but barred from naturalization by the Chinese Exclusion Act — was a U.S. citizen by birth [13]. The Court stated that the "real object" of the jurisdictional qualifier was "to exclude, by the fewest and fittest words," only the children of diplomats and enemy occupiers [13].

The restrictionists' strongest textual argument centers on the factual posture of Wong Kim Ark: the parents were legal, permanent residents. The Court described them as having a "permanent domicil and residence in the United States" [1]. Scholars like Wurman and former University of Texas law professor Lino Graglia have argued that the decision therefore does not control the question of children born to unauthorized immigrants, since those parents lack lawful status and, arguably, permanent domicile [13].

Defenders of birthright citizenship counter that the Court's reasoning in Wong Kim Ark was not limited to legal residents. The opinion adopted the English common law rule of jus soli — citizenship by place of birth — as a constitutional command, with only the two narrow exceptions noted above [13]. Judge James C. Ho, a Trump appointee on the Fifth Circuit Court of Appeals, has written that "birthright citizenship is guaranteed by the Fourteenth Amendment" and "is protected no less for children of undocumented persons than for descendants of Mayflower passengers" [13].

Michigan Law professor Kristin Collins has argued that even apart from the constitutional question, a federal birthright citizenship statute independently guarantees citizenship to those born on U.S. soil, and that "Congress adopted the prevailing understanding of the term, which consistently included children of noncitizens regardless of immigration status" [1]. Under this argument, the executive order conflicts with binding federal law that the president lacks authority to override.

The Numbers at Stake

According to Pew Research Center data published in March 2026, approximately 320,000 babies were born in 2023 to mothers who were either unauthorized immigrants or held temporary legal status — about 9% of all 3.6 million U.S. births that year [3]. Of these, roughly 245,000 were born to unauthorized immigrant mothers whose partners were also not citizens or permanent residents, and approximately 15,000 were born to mothers with temporary legal status in similar circumstances [3].

Source: Pew Research Center

Data as of Mar 31, 2026CSV

An estimated 260,000 of these children would have been ineligible for birthright citizenship under the executive order's terms [3]. The annual figure has fluctuated considerably: births to unauthorized immigrant mothers peaked at roughly 380,000 in 2006-2007, declined by more than 40% to about 215,000 by 2019, then rose again to 300,000 by 2023, tracking the broader increase in unauthorized immigration [3].

Between 2006 and 2023, approximately 5.1 million births occurred to unauthorized immigrant mothers [3]. An estimated 4.6 million children and 1.4 million adults currently living in the U.S. were born to at least one unauthorized immigrant parent [3].

What the Justices Said

During the April 1 oral arguments, justices across the ideological spectrum pressed the government's lawyer, Solicitor General D. John Sauer, with skeptical questions [1]. The ACLU's National Legal Director, Cecillia Wang, argued the case for the challengers, telling the Court: "Ask any American what our citizenship rule is, and they'll tell you, everyone born here is a citizen alike" [14].

Justice Neil Gorsuch, a Trump appointee, noted that strict immigration laws did not exist in 1868, so "anyone could establish domicile back then" — undermining the government's attempt to distinguish between legal and unauthorized presence [1]. Justice Elena Kagan argued that Wong Kim Ark had a "very clear rationale" embracing a historical tradition of birthright citizenship without further limitations [1].

Justice Sonia Sotomayor raised the prospect of retroactive consequences, warning that the government's logic could allow denaturalization of existing citizens [1]. Chief Justice John Roberts told the government's lawyer: "We have a 'new world' but the same Constitution" [1].

Justices Clarence Thomas and Samuel Alito offered the government its most sympathetic hearing, questioning whether Wong Kim Ark's parents' "domicile" status was central to the 1898 ruling [1]. Court observers at SCOTUSblog assessed that a majority appeared likely to reject the executive order [1].

The Global Context

The United States is one of approximately 33 countries that grant unrestricted jus soli — citizenship by birth on the territory, regardless of parental status [15]. This practice is overwhelmingly concentrated in the Americas, where 30 of the 33 countries are located, a legacy of colonial-era policies designed to encourage immigration to the New World [15].

Source: World Population Review

Data as of Jan 1, 2026CSV

No European country grants unrestricted birthright citizenship. Several nations have moved in the opposite direction over the past four decades. The United Kingdom restricted jus soli in 1983 through the British Nationality Act, requiring that at least one parent be a citizen or legal permanent resident [15]. Australia followed in 1986, New Zealand in 2005, and India phased out unrestricted birthright citizenship starting in 1987 [15].

Ireland provides a particularly instructive case. In 2004, Irish voters approved a constitutional referendum by nearly 80% to end automatic birthright citizenship, requiring that at least one parent be an Irish citizen or have resided legally in the country [16]. The referendum was driven by claims — described by the Irish Human Rights Commission as "vague or anecdotal in nature" — that non-European immigrants were arriving in late pregnancy to secure citizenship for their children [16].

The aftermath was mixed. Research published by the American Economic Association found that migrants arriving during the period of unrestricted birthright citizenship had lower fertility rates, were better educated, and were more likely to be employed, "suggesting that birthright citizenship made Ireland a more attractive destination for high-skill migrants" [16]. Meanwhile, some children born after the change found themselves effectively stateless. In one documented case, a child named Eric Zhi Ying Xue was neither an Irish nor a Chinese citizen. The Immigrant Council of Ireland reported receiving calls from "hundreds and hundreds of children in a similar situation" [16].

The Statelessness Question

If the Supreme Court were to uphold the executive order — an outcome most observers consider unlikely — the consequences would extend beyond the immediate population affected. The United States has not ratified the 1954 Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness, which obligate signatory nations to grant nationality to people born in their territory who would otherwise be stateless [17].

Children denied U.S. citizenship whose parents' home countries do not recognize jus sanguinis (citizenship by descent) claims, or whose parents are themselves stateless, would join the ranks of an estimated 4.2 million stateless persons worldwide — a figure the UNHCR believes may actually exceed 10 million [17]. Stateless individuals are routinely denied access to education, healthcare, employment, marriage, and official documentation [17].

The Dominican Republic offers a cautionary precedent. After expanding restrictions on birthright citizenship in 2013 to retroactively cover children of Haitian migrants, nearly 200,000 Dominicans of Haitian descent were stripped of their citizenship [17]. The resulting humanitarian crisis drew international condemnation.

Funding, Networks, and the Question of Influence

The amicus campaign supporting the administration's position draws from overlapping institutional networks. The Federalist Society, which has received funding from the John M. Olin Foundation ($5.5 million), the Scaife Foundation, the Bradley Foundation, and Koch family foundations, reported $20 million in annual revenue by 2017 [11]. The Heritage Foundation has published extensive commentary supporting the restrictive interpretation, with senior fellow Amy Swearer — the 2022 recipient of the foundation's Joseph Shattan Award — writing on the issue [10][11].

The Claremont Institute, which houses Eastman's Center for Constitutional Jurisprudence, has positioned itself as a leading intellectual hub for the argument [9]. Wurman, while not formally employed by any of these organizations, has appeared at Federalist Society events and published in journals associated with conservative legal thought [8].

On the other side, the ACLU has led the litigation challenging the executive order, with support from organizations including the NAACP Legal Defense Fund and ASAP Together [5][14]. Scholars Bethany Berger at the University of Iowa and Gregory Ablavsky at Stanford Law School filed briefs supporting the challengers, as did numerous constitutional law professors and historians [1].

Whether the prominence of the restrictionist scholars reflects a genuine shift in mainstream legal opinion or primarily represents an organized ideological campaign remains contested. The restrictive reading has gained little traction among constitutional law scholars outside conservative legal networks, but it has moved from the margins to the Supreme Court docket in less than two decades. University of Pennsylvania political scientist Rogers M. Smith has noted that the framers of the 14th Amendment "did not confront the question of illegal immigration, which did not exist in its modern form before federal immigration restrictions" — a historical gap that both sides have sought to fill with competing interpretations [1].

What Comes Next

A decision in Trump v. Barbara is expected by late June or early July 2026 [7]. Based on the tenor of oral arguments, most court observers expect the executive order to be struck down [1]. But even a loss for the administration could produce significant legal consequences depending on how broadly or narrowly the Court writes its opinion.

A narrow ruling — holding only that the president lacks the authority to redefine citizenship by executive order — would leave open the question of whether Congress could legislate a restrictive interpretation. A broader ruling — affirming that the 14th Amendment guarantees birthright citizenship to all children born on U.S. soil, full stop — would settle the matter for a generation.

Either way, the case has already achieved one of its apparent objectives: elevating a once-marginal legal theory to the center of American constitutional debate and testing whether the post-Civil War settlement on citizenship can withstand the political pressures of the 21st century.