The Trump administration’s campaign to abolish birthright citizenship is not going well. Less than 72 hours after Trump issued an executive order on federal recognition of the constitutional principle, a federal judge in Washington blocked it from taking effect. That judge had harsh words for the lawyers defending the order in court.
“This is a blatantly unconstitutional order,” said Judge John Coughenour, who was appointed by President Ronald Reagan in 1981, during a hearing on Thursday. He directly criticized the Justice Department for defending it. “Frankly, I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order,” Coughenour told them. “It just boggles my mind.”
The lawsuit, brought last week by nearly two dozen states, required the Justice Department to give its first legal defense of the president’s Inauguration Day order. The administration made some procedural arguments against the states’ lawsuit, including on standing grounds and relief grounds. But it is the department’s reading of the Fourteenth Amendment’s citizenship clause and the Supreme Court’s precedents that is the most notable—and the most flawed.
As always, the citizenship clause is clear: “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.” That clarity is intentional: Congress and the states ratified the amendment in 1869 to overturn the Dred Scott ruling, which had held that people of African descent can never acquire American citizenship, and to provide a constitutional backstop for Black civil rights in the South during Reconstruction.
The “subject to the jurisdiction” language refers to the clause’s two best-known exceptions. (I’ll discuss a couple of additional ones later.) One is that birthright citizenship does not extend to the children of foreign diplomats; they have diplomatic immunity and are therefore not generally “subject” to American law. The other is for Native Americans who were members of sovereign tribal nations at the time, or what the Civil Rights Act of 1866 described as “Indians not taxed.”
The foreign diplomat exception does not require further explanation. The carve-out for Native Americans is slightly more complicated. For roughly the first 150 years of the republic, members of tribal nations lived mostly outside of the American political community. Under the Constitution, they were neither taxed nor counted for congressional reapportionment. They were not citizens, and they could not vote in state or federal elections. This is not necessarily a negative thing; tribal nations both then and now cherish their legal sovereignty and the political autonomy that comes with it.
In the 1884 case Elk v. Wilkins, the Supreme Court held that Native Americans did not automatically attain citizenship at birth through the citizenship clause because of their tribal nation’s sovereign status. In its brief last week, the Justice Department read this ruling to affirm that “the children of non-resident aliens lack a constitutional birthright to citizenship.”
In Elk, the Court held that, because members of Indian tribes owe “immediate allegiance” to their tribes, they are not “subject to the jurisdiction” of the United States and are not constitutionally entitled to citizenship. Indian tribes occupy an intermediate position between foreign states and U.S. states. The United States’ connection with the children of illegal aliens and temporary visitors is weaker than its connection with members of Indian tribes. If the latter link is insufficient for birthright citizenship, the former certainly is.
This is a nonsensical comparison that does not appear to understand how tribal sovereignty works. Some observers also took this argument to be an attack on Native American citizenship. That is not the conclusion to which I would jump, and for good reason: Congress extended citizenship to Native Americans by statute through the Indian Citizenship Act of 1924, so the citizenship clause’s application to them is now moot. In their haste to write this brief to meet the court’s deadlines, the Justice Department lawyers who signed it appear to have incorrectly used the present tense.
The department’s interpretation of United States v. Wong Kim Ark is more troubling. That case involved a man born in San Francisco in 1873 to Chinese parents who lived in the city for decades. After he visited China and returned to the United States as an adult, port officials denied him entry under the Chinese Exclusion Act. The Supreme Court held that he had lawfully attained U.S. citizenship at birth under the citizenship clause’s terms, thereby establishing the precedent for birthright citizenship as we know it today.
The Justice Department tried to narrow and undermine the court’s landmark ruling to defend Trump’s order. “The [Wong Kim Ark] Court explained that the ‘question presented’ concerned the citizenship of ‘a child born in the United States’ to alien parents who ‘have a permanent domicile and residence in the United States,’” it claimed. “Answering that question, the Court held that ‘a child born in the United States’ to alien parents who ‘have a permanent domicile and residence in the United States’ ‘becomes at the time of his birth a citizen of the United States.’”
In other words, the administration argued, Wong Kim Ark only applied to what we now know as green card holders. “Despite some broadly worded dicta, the Court’s opinion thus leaves no serious doubt that its actual holding concerned only children of permanent residents,” the department argued. “The EO is fully consistent with that holding.”
But this reading of Wong Kim Ark is deeply anachronistic. The court’s reference to “permanent domicile and residence” in 1898 is not interchangeable with the legal category of “lawful permanent residents” in 2025 because the latter category did not exist in 1898. Congress did not enact laws recognizing “lawful permanent residents” until the 1920s when it created the first immigration quotas. The green card, as we know it today, was not introduced until midway through the twentieth century. The court could not have made a distinction in 1898 that would not exist for another few decades.
Indeed, the “question presented” reads much differently when shown in its entirety. Justice Horace Gray, writing for the court, said the question was “whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.”
Gray, in short, was distinguishing between a foreign diplomat and an ordinary foreign national. Why did he mention “permanent domicile and residence” at all? Because he sought to contrast the normal case with the limited number of exceptions that he understood the citizenship clause to contain. Gray extensively reviewed the history of European and American nationality laws when reaching his decision; this background was dismissed by the Trump administration as “broadly worded dicta.”
From that survey, Gray concluded that the citizenship clause applied to the children of any foreign nationals present within the United States, “with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”
All three of the nontribal exceptions flow logically from the amendment’s text. The first is the most well-known one: Children of foreign diplomats never become U.S. citizens when born on U.S. soil. No one, to my knowledge, has ever suggested otherwise. “Foreign public ships” are not “subject to the jurisdiction” of the United States because they are not U.S. flagged vessels and because citizenship does not attach in American territorial waters. In neither case is anyone actually living in the United States.
The final exception offered by Gray—for children born to a foreign military occupation on U.S. soil—also makes sense. He cited some historical evidence to support it, but mere logic can suffice: A hostile foreign army is, by definition, not “subject to the jurisdiction” of the United States. Describing Wong Kim Ark’s parents as having a “permanent domicile and residence” and “carrying on business” meant only that they were normal immigrants to the United States, so to speak, and were not some jurisdictional outlier.
The third exception is essentially moribund today: No foreign power has occupied a portion of the mainland United States since the War of 1812, no foreign army has held any U.S. soil since Japan withdrew its troops from two of the Aleutian Islands in World War II, and none is likely to do so in the future. Some Trumpworld figures have nonetheless sought to expand this last exception to potentially cover undocumented immigrants. State officials in Texas tried to claim extraordinary powers during the Biden administration by arguing that the state was suffering an “invasion” under the terms of the Constitution’s guarantee clause. One of Trump’s first-day executive orders was titled “Protecting the American People From Invasion,” though it largely revolved around immigration enforcement priorities.
Among the legal figures who have suggested some sort of “invasion” exception is Judge James Ho, who serves on the Fifth Circuit Court of Appeals. Ho is one of the most influential conservative judges in the nation; he also wrote a 2006 law review article defending birthright citizenship on originalist grounds. Within the last year, however, he has changed his tune. He argued last November after the presidential election that birthright citizenship does not apply in cases of “war or invasion,” which he suggested could extend to undocumented immigrants.
The Justice Department did not make this argument in court. While it referred to Trump’s “invasion” executive order, it did not describe undocumented immigration as such. Nor could it rationally make this argument, since the order also covers children born to foreign nationals who are lawfully present in the country. Instead it said the birthright citizenship order “is an integral part of President Trump’s recent actions, pursuant to his significant authority in the immigration field, to address this nation’s broken immigration system and the ongoing crisis at the southern border.”
Either way, it is unsurprising that Judge Coughenour dismissed the department’s arguments out of hand. His own three-page order is short and to the point: “There is a strong likelihood that plaintiffs will succeed on the merits of their claim that the executive order violates the Fourteenth Amendment and Immigration and Nationality Act,” he wrote, adding by way of citation, “See United States v. Wong Kim Ark.” Nothing more needed to be said. The only question now is whether the Supreme Court will take the same approach when it inevitably is asked to weigh in on the order. Any other response would unsettle a century-long consensus on the nature of American citizenship—and the social and political fabric of the country itself.
