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The Supreme Court is reviewing President Donald Trump’s executive order issued on January 20, 2025. This order aims to prevent birthright citizenship for children born in the U.S. whose parents are present in the country illegally or with temporary visas.

Lawfaremedia.comreports that although there are numerous supporting documents availableTrump v. Barbara,A major issue that weakens Trump’s order has not received sufficient attention. Ilya Somin, an author and law professor at George Mason University, argues that the government’s stance would contradict the main intent of the Citizenship Clause in the Fourteenth Amendment of the Constitution. “For this reason alone, the Trump Administration should lose the case,” he states.

The Citizenship Clause aimed to provide citizenship to recently emancipated slaves and their offspring, a change from the 1857 decisionDred Scott decision. However, all of the current administration’s arguments would contradict that.

The Citizenship Clause specifies that “All individuals born or naturalized within the United States, and who are under its authority, are considered citizens of the United States and the state in which they live.”

The government’s position in Barbararelies on the assertion that children of undocumented immigrants and those with temporary visas are not “under the jurisdiction” of the United States

The most straightforward support for the government’s stance is the notion that entering illegally somehow keeps undocumented immigrants and their children born in the U.S. outside the reach of American law. “This is highly questionable,” Somkin states, “as undocumented individuals are clearly under U.S. legal authority. However, if this argument holds true, it would also have excluded many freed slaves and their descendants.”

Therefore, “Any interpretation of the ‘subject to the jurisdiction’ phrase that would deny birthright citizenship to many slaves and their children should be dismissed,” according to Somkin.

A common argument supporting the administration’s stance is that undocumented immigrants, non-citizens with temporary visas, and their children do not possess the necessary exclusive “loyalty” to the United States. This is due to the fact that they still have loyalty towards their home countries.

If, according to this theory, individuals are loyal to the government of the country they were born in, it clearly extends to nearly all former slaves, including those who entered the U.S. legally.

Somkin further challenges claims regarding the status of Native Americans and the so-called “domicile” theory, which argues that children of undocumented immigrants fall outside U.S. jurisdiction because their parents are not lawfully domiciled in the country.

Although there are already exceptions to birthright citizenship—such as children of foreign diplomats and those born on foreign public vessels within U.S. territorial waters—Somkin argues that the connection to slavery offers a compelling further justification for opposing the administration’s stance, effectively countering all of its arguments. All these theories conflict with the primary intent of the Citizenship Clause and should be dismissed solely on that basis.

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