The legal landscape regarding President Donald Trump’s Executive Order No. 14160, known as the Citizenship Order, is rapidly evolving, as various lawsuits contest its legality. The Citizenship Order seeks to redefine birthright citizenship, asserting that certain individuals born in the United States to foreign nationals will not be considered U.S. citizens if they are born after February 19, 2025. This marks the second part of a four-part series dedicated to exploring the ongoing legal disputes surrounding the Citizenship Order and the implications it harbors for affected individuals and the broader interpretation of citizenship rights under U.S. law.
This installment focuses primarily on the arguments presented by the Department of Justice (DOJ) in defense of the Citizenship Order, as these arguments will significantly influence how appellate courts and, eventually, the Supreme Court approach the matter at hand.
Recently, the U.S. Court of Appeals for the Ninth Circuit became the first appellate court to address the legality of the Citizenship Order. The Ninth Circuit issued a ruling that deemed the limitations proposed in the Citizenship Order likely inconsistent with the Citizenship Clause in Section 1 of the Fourteenth Amendment. They further ruled that the Citizenship Order appears to violate the statutory provision establishing birthright citizenship identified in 8 U.S.C. § 1401. These preliminary findings suggest a strong legal challenge to the Citizenship Order, and they mirror sentiments expressed by other courts dealing with similar cases.
The Ninth Circuit’s conclusions are indicative of a broader consensus among the judiciary regarding the Citizenship Order’s dubious legality. As noted by the Supreme Court in Trump v. CASA, Inc., the Solicitor General has committed to seeking certiorari from the Supreme Court following unfavorable rulings in these appeals.
As the legal discourse unfolds, additional appellate hearings have occurred, including two oral arguments in the First Circuit concerning cases like O. Doe v. Trump and New Jersey v. Trump. Furthermore, ongoing litigation in the Fourth Circuit also raises critical questions about the Citizenship Order’s implications and the rights of affected individuals.
To understand the DOJ’s arguments in favor of the Citizenship Order, it is essential to scrutinize the lead argument articulated in its various appellate briefs. This argument centers around the interpretation of the phrase “subject to the jurisdiction [of the United States]” within the Citizenship Clause of the Fourteenth Amendment. The DOJ contends that the reading adopted by plaintiffs and certain courts cannot withstand scrutiny, as it allegedly fails to accommodate historical exceptions to birthright citizenship. The DOJ highlights two significant exceptions: children of diplomats and members of Indian tribes, arguing that these exceptions undermine the plaintiffs’ broader interpretation of citizenship.
The plaintiffs, however, assert that their reading of “subject to the jurisdiction thereof” is in line with precedents established in landmark Supreme Court cases such as Elk v. Wilkins and United States v. Wong Kim Ark. These rulings delineate a distinction between individuals who are genuinely bound by U.S. law at birth and those who may possess some level of legal interaction with U.S. authorities.
Critically, the three established exceptions to birthright citizenship—children of occupying enemy forces, children of foreign diplomats, and members of Indian tribes—all emphasize a lack of complete political jurisdiction or regulatory law over the individuals at the time of their birth. In each case, the Supreme Court has historically underscored that effective legal jurisdiction at birth dictates the conditions of citizenship. In contrast, the individuals described in President Trump’s Citizenship Order, namely those born to mothers unlawfully present or temporarily present in the U.S., fall outside the established legal framework that protects certain categories of individuals from being deemed U.S. citizens by virtue of their birthplace.
As the DOJ pursues its arguments, this distinction between those born to parents with lawful immigration status versus those without will remain pivotal. The forthcoming discussions in this series will delve deeper into the department’s interpretations and explore whether they align with the Court’s established criteria.
In summary, the thrust of the DOJ’s argument hinges on the premise that the exceptions recognized in the Citizenship Clause must encompass a more restricted set of circumstances than the broader interpretations proposed by the plaintiffs. The coming months are set to be crucial, as the ramifications of the Ninth Circuit’s ruling and the DOJ’s arguments unfold within the judicial system. This case not only threatens to redefine who qualifies as a citizen but also reflects broader ongoing debates about immigration and nationality in contemporary America.
Stay tuned for the next installment in this series, which will tackle the DOJ’s alternative interpretation regarding domicile and its potential implications under the Citizenship Clause.
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