Laying down the law of birthright citizenship
UC Berkeley Law Professor John Yoo examines the Supreme Court’s oral arguments on Donald Trump’s birthright citizenship order. The justices, including Chief Justice Roberts and Justice Barrett, appeared skeptical that the order was unconstitutional, citing an 1898 precedent. Yoo suggests that Trump’s personal attendance may not have any influence on the court, which could lead to the failure of his administration.
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A group of at least seven law professors is holding a campaign to challenge the long-standing interpretation of the birthright, opposing former President Donald Trump’s attempt to narrow the constitutional provision, as Supreme Court justices show skepticism.
The legal scholars’ arguments aim to convince the Supreme Court and the opponents of Trump’s efforts that there are serious real and historical arguments for limiting birthright citizenship under the 14th Amendment that should be considered rather than dismissed as political theory.
Ilan Wurman, a law professor at the University of Minnesota, told Fox News Digital that the latest wave of support is meant to reinforce the point that birthright citizenship is not a settled issue despite the institutional consensus on it.
“That several prominent legal scholars have come out in the past year, including several last month, with varying degrees of support for the Trump Administration’s citizenship law, shows that their position is critical,” Wurman said. “The Supreme Court cannot just rely on common sense. It will have to show its work.”
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Protesters with opposing views speak before the arrival of President Donald Trump at the US Supreme Court, Wednesday, April 1, 2026, in Washington. (Photo by Tom Brenner/AP)
Wurman, who specializes in constitutional law, was one of twenty who also weighed in on the case by submitting amicus briefs to the high court before the April 1 oral arguments on citizenship, which grants automatic citizenship to most children born on US soil under the 14th Amendment.
He said, in part, the amendment does not intend to grant citizenship to the children of illegal immigrants, saying that in the 19th century, parents who lived in a country owed it to the country to receive protection from its government.
“This exchange of loyalty and protection was often described as ‘joint engagement,'” Wurman writes. “Legal aliens generally fall under the law, while foreign troops and diplomats do not. … Aliens present illegally may be exempt from this law.”
I some law professors including Randy Barnett of Georgetown University, Kurt Lash of the University of Richmond, Richard Epstein of New York University, Tom Lee of Fordham University, Adrian Vermeule of Harvard University and, most recently, Philip Hamburger of Columbia University, each of whom has argued to varying degrees that Trump’s birth order is constitutionally protected.
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President Donald Trump holds the signed AI executive order, in the Oval Office of the White House, in Washington, Jan. 23, 2025. Trump said he will attend Wednesday’s arguments before the US Supreme Court on a case related to birthright citizenship. (REUTERS/Kevin Lamarque)
Trump’s executive order, signed shortly after he took office, would have barred children born to mothers who are illegal immigrants or temporary legal visitors from receiving automatic citizenship. While all the justices, except for Justices Clarence Thomas and Samuel Alito, appeared ready to overturn Trump’s order, the case nevertheless invited debate. If upheld by the high court, it could strip citizenship from those who don’t qualify under Trump’s new definition and broadly overturn immigration policy.
The Trump administration has argued that temporary visitors and illegal immigrants are “under the jurisdiction” of the United States and that that language in the amendment was intended to apply to freed slaves during the Civil War. The authorities have stated that the birth tourism companies have been illegal be exploited an open citizenship policy and that it also encourages illegal immigration.
Chief Justice John Roberts challenged Solicitor General John Sauer during oral arguments about the minor exceptions created in the 14th Amendment, such as children born to foreign officials, saying they are not comparable to the broader category of illegal immigrants.
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US Supreme Court Chief Justice John Roberts attends opening ceremonies in the Rotunda of the US Capitol on January 20, 2025 in Washington, DC. Chip Somodevilla/Pool via REUTERS/File Photo (Reuters)
The examples you give of support really blow my mind,” said Roberts. “You know, children of diplomats, children of enemies during a brutal attack, children on board warships, and then you extend it to the whole category of illegal aliens. … I don’t really know how you can get to that big of a group from small and not-so-common examples.”
An attorney for the American Civil Liberties Union who opposed the executive order told the Supreme Court that the policy was included in the 14th Amendment to “place it within the reach of any public official” and that the exception was intentionally narrow.
“It does not include only those who are full of extraterritorial fiction because they are under the jurisdiction of another state even if they are in the United States, a closed set of laws otherwise,” said ACLU lawyer Cecilia Wang.
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Wurman noted that professors who complied with Trump’s order were met with “swift and brutality”. David Bier, an immigration expert at the CATO Institute, said the opposition did not care.
“Oh NOT SEVEN!? That’s surprising because in order to be eligible to be a judge or an elected person you need to associate with the president,” Bier. wrote to X. “The case is a joke. It is sad that these people look down on themselves because they fail to do something wrong.”
