Birthright Citizenship: Three Justices Saw the Babies and Their Fundamental Rights

For a change, the rights of kids were addressed in Trump v. Barbara oral arguments related to birthright citizenship.

On April 1, 2026, we listened carefully to the Supreme Court’s oral arguments in Trump v. Barbara, the case that will determine whether the President of the United States can unilaterally strip birthright citizenship from babies born on American soil via his Executive Order 14160.[1] While the more dominant constitutional predicate for the Order as discussed at oral argument was “under the jurisdiction thereof,”[2] the primary predicate in the Fourteenth Amendment clearly focuses on babies born in this country. It reads:

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.

For much of the argument, that baby was missing from the room, although President Trump decided to make an appearance.

We want to give credit where it is due. Three justices – Justices Amy Coney Barrett, Ketanji Brown Jackson, and Sonia Sotomayor – kept the actual constitutional subject in focus: the child. Not the parent. Not the parent’s immigration status. Not domicile doctrine or the Fourteenth Congress’s floor debates. The baby.

The rest of the Court largely spent much of two hours arguing about the parents.

This is not a small thing.

As the amicus brief written by counsel of record Mary Kelly Persyn on behalf of First Focus on Children, CLASP, Children Now, the Young Center for Immigrant Children’s Rights, and leading scholars in child health and psychology, including Dr. Lisa Fortuna (UC Riverside), Dr. Hector Adames (The Chicago School), Warren Binford (University of Colorado Anschutz School of Medicine). Dr. Nayeli Y. Chavez-Dueñas (The Chicago School), and Dr. Maryam Jernigan-Noesi (Jernigan & Associates Consulting, Inc.), reminded the Court:

[T]he focus of the Fourteenth Amendment is “on the child, not the parent.”

That’s not our framing. That’s what the First Circuit held in Doe v. Trump. [3] That’s what the text of the Amendment says. The word is “born” – not “descended,” not “parentally sponsored,” not “domiciled.”

As we argued in our brief:

In the United States, citizenship at birth is a fundamental right. By operation of the Fourteenth Amendment, every baby born within our borders claims citizenship equally, regardless of parentage, ethnic heritage, race, or any other factor.

Elimination of birthright citizenship would irreparably harm babies and children, regardless of whether their parent is an American citizen or permanent resident.

But you wouldn’t know it from listening to the argument made by the Solicitor General and some of the justices.

A few days ago, we published The Invisible Child: How the Supreme Court Erased Children from a Case About Their Own Harm — about the Supreme Court’s 8-1 ruling in Chiles v. Salazar. That ruling sent Colorado’s law banning “conversion therapy” back to the trial court under the most stringent standard of constitutional review. The Court’s framing of the case as primarily concerning the First Amendment rights of adults essentially erased the children the law was designed to protect.

With the sole exception of Justice Jackson, who centered the documented harm to minors from conversion therapy, eight justices decided Chiles v. Salazar almost entirely in terms of the therapist’s First Amendment rights — with the children present only as the government’s abstract regulatory interest.

The pattern in that case is deeply troubling: when children enter the legal frame only through the interests of adults around them, they are perpetually vulnerable to being outweighed. The resulting analysis frequently ignores facts and evidence-based arguments that directly concern the well-being of children.

U.S. v. Skrmetti, the Supreme Court case that allows states to ban gender-affirming care for minors, is another good example of this dynamic. In its opinion, the Court mischaracterized the war on gender-affirming care as a reasoned “debate” when it is anything but.

What the Government Is Actually Asking

Solicitor General D. John Sauer, arguing for the Trump Administration, sought to erase babies and children by focusing on the circumstances of adults only. He asked the Court to accept that the phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment incorporates a domicile requirement and argued that a baby’s citizenship depends not on where it was born but on whether its parents have established lawful domicile in the United States. Undocumented parents can’t form domicile, the government argued, and so their children aren’t citizens.

The constitutional inversion this requires is breathtaking. The Amendment says “born.” The government says it means “descended from legally domiciled parents.” Every court that has reviewed Executive Order 14160 has rejected this argument. The First Circuit rejected it. Now the Administration is asking the Supreme Court to overturn 157 years of settled constitutional understanding by executive order.

Most of the justices spent the argument probing the domicile theory — its historical origins, its relationship to common law, whether it could be reconciled with Wong Kim Ark (1898), and how it would apply to the recognized exceptions (children of ambassadors, occupying enemy forces, and Native Americans). This line of questioning treats babies and children as largely incidental to the analysis.

Justice Barrett: “It’s the Child.”

Justice Barrett was among the clearest voices in the room about where the constitutional focus properly belongs. In her first round of questioning, as General Sauer was elaborating on the domicile-and-allegiance theory, she cut in with a correction that should have reoriented the entire argument:

But they don’t focus on the parents. It’s the child.

She was pointing out that even the historical sources the government relies on – the common law tradition of allegiance – focused on the allegiance of the person born, not on the allegiance of the parents. The government’s theory, in Justice Barrett’s framing, imposes a parental filter onto a constitutional text that made no mention of parents, their blood, or their domicile.

Barrett also pushed hard on the practical consequences for babies. She raised the problem of “foundlings” – children born with unknown parents – and asked the Solicitor General directly how domicile adjudication would work when you don’t know who the parents are.

Justice Barrett also explored the chaos that would descend on families where a U.S. citizen mother comes home briefly to give birth:

How would it work? How would you adjudicate these cases? You’re not going to know at the time of birth for some people whether they have the intent to stay or not, including U.S. citizens, by the way.

In these cases, birthright citizenship provides what Justice Barrett refers to as a “bright-line rule” and does not leave a baby’s status in the uncertainty and subjectivity preferred by the current president of the United States[MP5] .

Later in the argument, Justice Barrett returned to questions about the structure of the exceptions to birthright citizenship and whether that structure supports an open or closed set – pressing the respondents’ counsel, Cecillia Wang, on whether new categories could be carved out by analogy. Her questioning throughout was probing, intellectually serious, and consistently oriented toward what the rule means for the child at the moment of birth.

Justice Jackson: Centering the Baby, and the Delivery Room

Justice Jackson’s questioning was among the most sustained and child-focused of the entire argument. She came at the government’s position from multiple angles, each of which pulled the analysis back toward the actual constitutional subject: BABIES.

Her most striking moment came near the end of the government’s argument, when she asked General Sauer to explain, concretely, how the Executive Order would work in practice. Not in theory. In a hospital. For a newborn.

Are you suggesting that when a baby is born, people have to have documents, present documents? Is this happening in the delivery room? How are we determining when or whether a newborn child is a citizen of the United States under your rule?

When Sauer explained that the process would be handled largely through computer systems checking parental immigration status – and that any challenge to a denied citizenship determination would happen after the fact – Jackson pressed further:

After their baby has been denied citizenship, then we can go through the process?

Yes, Sauer confirmed. First, the baby is denied citizenship. Then the family can dispute it. Never mind that this process costs money and time that most families cannot afford. The baby has no voice in any of it — cannot speak up, cannot file an appeal, and cannot remedy a parent’s failure to produce the right documents at the right moment. The child bears the consequences of circumstances entirely beyond its control.

Justice Jackson also raised one of the most powerful historical counterarguments of the day. She asked the Solicitor General what the government’s allegiance-based theory would mean for the Japanese American children born in the United States during World War II – children whose parents had been declared enemies of the United States and interned. Those babies received birthright citizenship. Under the government’s theory, they shouldn’t have. Is the government saying they were wrong to get it?

Sauer’s answer that it “would turn on whether they were domiciled” did not satisfy the justices. Jackson’s point was on point: historically, American law has not made parents’ legal status or political circumstances determinative of their child’s citizenship.

Justice Jackson made another argument that deserves wider attention. The government’s domicile theory makes the meaning of birthright citizenship contingent on whatever Congress decides “domicile” means – giving future Congresses the power to contract or expand citizenship by statute. Jackson identified this as a structural problem the Framers specifically designed the Citizenship Clause to prevent:

My understanding was the Framers put this Citizenship Clause into the Constitution to prevent future Congresses from being able to affect citizenship in this way.

It is a constitutionally protected right.

In her final exchange with Ms. Wang, Jackson worked out the allegiance logic with notable clarity: the babies get permanent allegiance by being born here, even when their parents owe temporary local allegiance while on U.S. soil. Both forms of allegiance are present. The Citizenship Clause is satisfied. The government’s argument collapses.

Justice Sotomayor: A Consistent Voice for the Kids

Justice Sotomayor has been the most consistent voice for children across both Supreme Court proceedings in this case, and she brought that same focus to the April 1 argument.

At the first hearing, in May 2025, which centered on whether nationwide injunctions blocking the Executive Order could stand, Justice Sotomayor was one of the only voices in the courtroom to name the constitutional affront for what it actually is: a direct assault on the fundamental rights of babies.

While much of that argument was consumed by questions of judicial power, executive authority, and procedural doctrine, Sotomayor pointedly noted that the Executive Order violates long-established Supreme Court precedents – at least four of them – and appeared designed to avoid judicial review. She kept the babies visible when the rest of the argument had all but forgotten them.

At this past week’s April 1 argument, she remained direct about what the Executive Order would mean in concrete terms. She noted that if the government’s broader theory were credited, the citizenship of millions of Americans, past, present, and future, could be called into question. She pressed the government on the weight of precedent and the consequences of overturning it, keeping the real-world stakes – the babies, the families, the communities – visible in a proceeding that frequently drifted toward abstraction.

Her consistency across both hearings has been notable and important. She has never lost sight of the real people who would actually be harmed – babies. Not the President or any of the other governmental defendants. Babies.

The Baby The Court Didn’t See

The rest of the argument – from Chief Justice Roberts and Justices Thomas, Alito, Kagan, Gorsuch, and Kavanaugh – was largely conducted around the merits of the case being presented by the Solicitor General, which is how Supreme Court arguments often go.

But in this case, where the respondents are babies and children, any failure to see them carries a cost.

We wrote about the heavy cost borne by our youngest citizens a few days ago in Chiles v. Salazar. In that case, the word “child” appears only in Justice Jackson’s dissent — ten times — while the majority and concurrence conducted their entire First Amendment analysis with the harmed minors barely in view. In Trump v. Barbara, the pattern repeats at the argument stage among many of the justices. Six justices spent the day in the legal weeds while the babies waited outside. In an opinion released last week and in the oral arguments in this case, some of the justices don’t even acknowledge these cases are ABOUT CHILDREN.

In Trump v. Barbara, Justice Gorsuch spent significant time on the historical question of whether domicile as understood in 1868 could incorporate an “unlawful presence” test, given that essentially no immigration restrictions existed at that time. His questioning was genuinely probing, and his skepticism of the government’s theory appeared real. However, the frame was historical and doctrinal, not child-centered.

Justice Kavanaugh asked substantive questions about the text – the difference between the Fourteenth Amendment’s “subject to the jurisdiction thereof” and the Civil Rights Act of 1866’s “not subject to any foreign power” – and pressed the government on whether its theory was reconcilable with Wong Kim Ark. Important questions. But again, babies were left largely offstage.

Justice Kagan challenged the government’s historical revisionism, pressing on the majority view in Wong Kim Ark and its subsequent reaffirmation across more than a century of precedent.

Justices Thomas and Alito – this Administration’s most reliable allies on the Court – focused on the historical record, the exceptions to birthright citizenship, and fictional sleeper cells from Iran (in Alito’s case), but not the babies either.

Cecillia Wang Is a Hero for Babies and Children

Though our focus here is on the Justices’ lines of questioning, we can’t conclude without telling Cecillia Wang that we are more grateful to her than words can say. Her masterful argument reflected not only command of the law and history, but also a deep compassion and concern for our youngest and most vulnerable citizens.

Ms. Wang is herself the child of immigrants and shows us, as millions of other immigrant and first-generation Americans always have, exactly what makes our country great. As we listened to her on April 1, her voice and presence put forth a powerful case that made us believe the case would be won.

We are also well aware that arguments like Ms. Wang’s don’t happen in a vacuum. We are also profoundly grateful to the ACLU team that worked so hard to make April 1 possible.

What the Court Seemed to Understand, Even If It Didn’t Always Say It

Despite the often-abstract framing, the weight of the argument suggested that a majority of the Court is skeptical of the government’s position. The historical evidence for the domicile theory is thin. The practical consequences for babies and children are severe. And the government’s own admissions – that babies would be denied citizenship first, with challenges available only after the fact – illustrated the real-world stakes vividly.

As we told the Court in our brief, even if not cited, the question Justice Barrett raised about foundlings, about IVF children, about the children of U.S. citizens traveling abroad were the problems we also cited. The question Justice Jackson raised about the delivery room was exactly the question our brief raised about what happens to every baby born in the United States under this order.

The constitutional subject is a baby. The Fourteenth Amendment says “born.”

The Executive Order tries to – by executive fiat – change the Constitution’s citizenship test from that of the soil (“jus soli”) and birthplace to that of the blood (“jus sanguinis”) passed down through parentage and ancestry.

Every court that has considered this question has said that the Executive Order’s interpretation is incorrect. Again, in the words of the First Circuit, “persons born” means the focus is “on the child, not the parent.”

We are cautiously optimistic that – this time – the Supreme Court will see that the child and affirm birthright citizenship.

And no matter what happens in these times of breaking –

No matter dictators, the heartless, and liars

No matter – you are born of those

Who kept ceremonial embers burning in their hands

All through the miles of relentless exile

Those who sang the path through massacre

All the way to sunrise

You will make it through –

— For Earth’s Grandsons, by Joy Harjo, Poet Laureate of the United States

ENDNOTES

[1] As granted by the Court, “[t]he question presented is whether the Executive Order complies on its face with the Citizenship Clause and with 8 U.S.C. 1401(a), which codifies that Clause.”

[2] Court-watcher analysis of the oral argument identified the main targets of questioning as citizenship, domicile, and allegiance. Adam Feldman, What oral argument told us in the birthright citizenship case. SCOTUSBLOG (April 3, 2026).

[3] The First Circuit decided that since the Executive Order clearly included all (and only) children “born in the United States,” the key phrase from constitutional and statutory law was “subject to the jurisdiction [of the United States].” The court then held that the phrase includes each child born here, meaning that the plaintiffs — the children — had demonstrated a likelihood of success and warranted a preliminary injunction barring the order. Doe v. Trump, 157 F.4th 36, 55-56 (1st Cir. 2025) (”Thus, because all the children that the EO covers are ‘born . . . in the United States,’ the dispute over the merits of the plaintiffs’ claims depends, at bottom, on whether the children are ‘subject to the jurisdiction’ of the United States at the time of their birth. We conclude that this dispute clearly must be resolved in favor of the plaintiffs and, therefore, that they clearly are likely to succeed on the merits of their § 1401(a) and Citizenship Clause claims.”).