The Birthright Citizenship clause of the 14th Amendment reads: “[a]ll 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.”[1] This clause has remained uncontested for the last 150 years, yet, recently, the phrase “subject to the jurisdiction thereof” has come under scrutiny by the Trump-Vance Administration. On April 1, 2026, the Supreme Court of the United States heard oral arguments in the case of Trump, President of U.S. v. Barbara, otherwise known as the Birthright citizenship Case.[2] The central question in contention is what it means to be subject to the jurisdiction of the United States.[3] 

Wong Kim Ark

The pre-eminent case that is cited and discussed at length by both sides is United States v. Wong Kim Ark.[4] Decided in 1898, Wong Kim Ark establishes a two part test for determining whether a person is considered a citizen: birth within the territorial limits of the United States, and being “subject to the jurisdiction thereof.”[5] The case arose when Wong Kim Ark, a man born in San Francisco to Chinese immigrant parents, was denied re-entry into the United States after a trip abroad.[6] The Supreme Court ultimately held that he was a citizen by birth, grounding its decision in the text and history of the 14th amendment.[7] The Court’s reasoning drew heavily on English common law, which recognized that any child born on a nation’s soil, with limited exceptions, is considered a citizen of the United States and subject to the jurisdiction.[8] 

Wong Kim Ark also identifies certain classes of individuals who may satisfy the birth on United States soil but are not considered citizens of the United States. These include children born of foreign sovereigns or their ministers, born on foreign public ships, children born to enemy forces in hostile occupations, and children of members of the Native American tribes who owe direct allegiance to their tribe.[9] These narrow carve-outs have historically been treated as the outer boundary of the citizenship exclusion, not a broad gateway for further limitations. 

The Government’s Position

Solicitor General Sauer on behalf of the government interprets “subject to the jurisdiction thereof” to require not only physical presence at birth, but also lawful domicile and allegiance to the United States.[10] The government argues that domicile creates the necessary allegiance, and that the 14th amendment presupposes domicile, “[f]or aliens, lawful domicile is the status that creates the requisite allegiance, and the text of the clause presupposes domicile.”[11] General Sauer claims that it is not the newborn’s allegiance that is in question, but the parent’s.[12] Domicile refers to someone’s principal and permanent home where a person is physically present and intends to remain.[13] The government relies on debates around the Civil Rights Act of 1866 and Senator Trumball’s interpretation where the proposed language for the second part of the citizenship test was “not subject to any foreign power”.[14] The government argues that this revision was substantive rather than merely stylistic, and that the phrase “subject to the jurisdiction thereof” was intended to carry a meaning closer to the earlier draft with the idea of exclusive allegiance. In support of this reading, the government quotes Senator Trumbull’s interpretation from the floor debates, in which he stated that “subject to the jurisdiction thereof” means “not owing allegiance to anyone else.”[15] For the government, this statement reflects the original understanding of the framers of the amendment: citizenship was meant to be tied not merely to birth location, but to a more substantive political bond between the individual and the nation.

The ACLU’s Position

Cecillia D. Wang, National Legal Director of the ACLU, offered a sharp rebuttal to the government’s theory on behalf of the respondents. The argument stated that the rule is simple and well-settled: everyone born on American soil is a citizen alike, and that principle was enshrined in the 14th Amendment precisely to put it beyond the reach of any government official to destroy.[16] Wang says that the government’s own concession, not asking the Court to overrule Wong Kim Ark, is fatal to its own position because the controlling rule from the case forecloses any parental domicile requirement.[17] Wang goes on to say that the majority opinion of Wong Kim Ark mentions no less than six times that domicile is irrelevant under the common law framework adopted by the 14th amendment.[18] Under the adopted framework, the only recognized exceptions to birthright citizenship are the ones explicitly laid out in the case, which the government improperly seeks to expand (children of ambassadors, born on foreign or public ships, born to enemies in hostile occupations, or born to Native Americans).[19] Wang warns the Court of the practical consequences of the government’s position, arguing that it would not only strip newborns of citizenship immediately, but could call into question the citizenship of millions of Americans whose parents were temporarily or unlawfully present at the time of their birth.[20]

The Allegiance Debate

At the core of the dispute is the meaning of a single word: “subject.” The government argues that allegiance to the United States is a central component of what it means to be subject to its jurisdiction. Solicitor General Sauer contends that domicile carries with it an implied renunciation of loyalty to any foreign country. Under this view, a child born to parents who are in the United States temporarily or unlawfully cannot be said to have been born to parents who owe allegiance to the United States, and therefore the child itself is not fully “subject to the jurisdiction thereof” in the constitutional sense.

Underlying this dispute is a more fundamental question about what it means to be “subject” to a sovereign’s jurisdiction at all. The debate can be framed as a contest between two distinct conceptions of “subject to”: one grounded in juridical accountability, and one grounded in sovereign power. Under the first conception, to be subject to the jurisdiction of the United States means to be accountable to its laws and legal processes – to be bound by its statutes, answerable to its courts, and subject to its civil and criminal procedures in the same manner as any other person present on American soil. Under this reading, any person physically present in the United States, regardless of their immigration status or their parents’ allegiance, is subject to American jurisdiction in the most immediate and practical sense: they can be arrested, prosecuted, sued, and held legally accountable. Under the second conception, jurisdiction carries a deeper political meaning. It denotes subjection to the power and sovereign authority of the United States in a more complete sense, one that implies a mutual bond of allegiance and belonging. The government’s position draws on this second conception, arguing that mere physical presence and legal accountability are not enough, and that something more, like a meaningful political tie to the nation, is required before a person can be said to be truly “subject to the jurisdiction thereof.”

However, this interpretation would be a significant departure from established case law and statutory precedent that has prevailed for over a century. Neither the holdings of Wong Kim Ark, nor subsequent federal legislation have ever recognized domicile as necessary consideration in the determination of citizenship. Courts have consistently declined to import a domicile requirement into the citizenship conversation, treating the text of the 14th amendment as establishing a largely territorial rule with only explicit narrow exceptions. Importing an allegiance or domicile requirement would represent a dramatic departure from over a century of settled constitutional understanding, one that is rooted in text, history, and judicial precedent. 

At a deeper, structural level, the government’s position raises concerns that reach beyond the specifics of citizenship law and touch on foundational principles of American constitutionalism. A departure from over a century of established precedent would strike at the rule of law itself. Predictability and consistency are not merely procedural virtues, they are the foundation upon which individuals, institutions, and government rely when making decisions of consequence. When constitutional rights that have been understood as settled for generations are suddenly rendered contingent, the legitimacy of the legal order is called into question. The Constitution, the Bill of Rights, and Reconstruction Amendments that followed, were designed not merely to organize governmental power, but to restrain it. The Framers were acutely wary of concentrating authority in the hands of the executive, and the 14th amendment in particular was born out of a recognition that the federal government could not be trusted to define the contours of citizenship on their own terms, especially in light of the Civil War. By enshrining birthright citizenship in the Constitution rather than leaving it to statute or executive discretion, the Reconstruction Congress made a deliberate choice to place that right beyond the reach of shifting political winds. To now permit the executive branch to redefine who qualifies as “subject to the jurisdiction thereof” would effectively hand the government the power to determine citizenship on its own terms – precisely the kind of unchecked power the Constitution was designed to prevent. A bright-line rule rooted in the circumstances of birth, rather than one dependent on the government’s assessment of a parent’s allegiance or immigration status, is not only more faithful to the text and history of the Amendment, but it is also more consistent with the Constitution’s enduring suspicion of governmental overreach.