Justice Jackson's skepticism on incorporation

Trump v. Barbara

Justia · Docket · oyez.org

Argued on Apr 1, 2026.

Petitioner: Donald J. Trump, President of the United States.
Respondent: Barbara.

Advocates:

• D. John Sauer (for the Petitioners)
• Cecillia D. Wang (for the Respondents)

Facts of the case (from oyez.org)

On January 20, 2025, President Donald J. Trump issued Executive Order No. 14,160, titled “Protecting the Meaning and Value of American Citizenship,” which declared that individuals born in the United States are not U.S. citizens at birth if their parents lack sufficient legal status. Specifically, the order directs federal agencies not to recognize citizenship claims for children born after February 20, 2025, if: (1) the mother was unlawfully present in the U.S. and the father was neither a U.S. citizen nor a lawful permanent resident (LPR), or (2) the mother’s presence in the U.S. was lawful but temporary and the father was not a U.S. citizen or LPR. The order was issued on the alleged basis that the Fourteenth Amendment’s Citizenship Clause does not confer birthright citizenship on such children because they are not “subject to the jurisdiction” of the United States in the constitutional sense.

Three families challenged the order on behalf of themselves and similarly situated individuals. One class representative is Barbara, a Honduran asylum applicant whose child is due in October 2025. Another is Susan, a Taiwanese citizen in the country on a student visa whose daughter was born in April 2025; her child’s passport application was in progress at the time of the suit. The third is Mark, a Brazilian applicant for permanent residence whose son was born in March 2025 and initially received a U.S. passport. These families filed suit under pseudonyms, alleging that the Executive Order unlawfully strips their children of citizenship guaranteed by the Fourteenth Amendment and 8 U.S.C. § 1401(a). They seek to preserve access to citizenship-related benefits including Social Security, SNAP, and Medicaid.

The U.S. District Court for the District of New Hampshire issued a preliminary injunction and provisionally certified a nationwide class of children affected by the order. The court held that the plaintiffs were likely to succeed on the merits of their constitutional and statutory claims. That decision was appealed to the U.S. Court of Appeals for the First Circuit, and before a ruling from that court, the Supreme Court granted certiorari before judgment.

Question

Is a presidential executive order that denies U.S. birthright citizenship to children born in the United States because their parents are unlawfully present or in the country on temporary visas consistent with the Citizenship Clause of the Fourteenth Amendment and 8 U.S.C. § 1401(a)?