Multicultural Meanderings

USA: HOW THE RIGHT COULD ACTUALLY END BIRTHRIGHT CITIZENSHIP

No doubt the administration and its supporters/enablers will continue to try:

….Administration officials were hardly coy about their plans. “We have to keep fighting,” Vice President Vance told the Fox News host Laura Ingraham, “because we actually have an opportunity to reverse this decision.” A month later, the White House announced a second, narrower executive order purporting to restrict certain limited categories of people from birthright citizenship, such as children born to members of legally designated foreign terrorist groups.

The new order also appears largely unconstitutional, and is more a howl of frustration than a serious effort to pare back the Supreme Court’s ruling in Barbara. But it signals that MAGA’s assault on the Fourteenth Amendment is far from over. And the right already has a proven model for how to overturn a Supreme Court ruling, one more careful and systematic than a single executive order: the campaign against Roe v. Wade. The conservative movement never regarded Roe as the final word on abortion. The MAGA movement does not regard Trump v. Barbara as the final word on birthright citizenship….

Despite this history of opposition, Trump lacked any real legal foothold for his executive order—a precarious position to be in as the Supreme Court prepared to hear the case. Fortunately for Trump, a small group of right-leaning law professors busied themselves with the work of casting doubt on the question that judges in the lower courts—and, for more than 150 years, nearly every other expert—had found so clear. Some were up-front about their motivations. “My political predisposition was actually to think birthright citizenship is morally quite a complex issue and that the Trump position might be the right moral answer,” Ilan Wurman, a law professor at the University of Minnesota, explained in an interview on Moment of Truth, a podcast produced by a MAGA-aligned think tank. He co-wrote a New York Times op-ed in February 2025 and later published a law-review article. Both drew selectively from Anglo-American legal history to suggest that the words subject to the jurisdiction thereof might be read to mean “subject to America’s ‘social compact,’ ” whereby an individual gives up certain rights so that the state can guarantee others. People in the United States illegally haven’t entered into an “exchange of allegiance and protection,” Wurman argued, and therefore might not be guaranteed birthright citizenship for their children.

Scholarship proceeds through debate and contestation, but the convenient timing of this intervention and the patchiness of the historical work looked a great deal like an effort to sway the Court in Trump’s favor. Prior to Trump’s executive order, Wurman hadn’t published any academic work questioning the conventional understanding of birthright citizenship; he pressed forward with his op-ed, he said on the podcast, because he “wanted to move the Overton window.” Other scholars were appalled by his argument. Law, the CUNY professor, described the revisionist conclusions as “hogwash” that elide “mountains of scholarship on the other side.” Even fellow conservative originalists, who share Wurman’s approach to constitutional interpretation rooted in historical meaning, questioned his interpretation of subject to the jurisdiction thereof. Under common law and the public understanding of the Fourteenth Amendment at the time of the amendment’s drafting, they argued, subject to the jurisdiction thereof meant “subject to the law of”—which would include just about everyone on U.S. soil. “Aliens within the territory owe obedience to the law just like a natural-born citizen does,” the originalist law professor Keith Whittington wrote in a February 2026 paper. (Asked about his methodology, Wurman responded over email, “There is no single answer to the question of when sufficient historical data has been presented to make historical claims convincing.”)

Yet the revisionist scholarship found a receptive audience among the conservative justices on the Court. During oral arguments in April, most of the justices seemed skeptical of, even hostile toward, Solicitor General D. John Sauer’s case against birthright citizenship. By the time the Court handed down its ruling at the end of June, however, only five—the three liberals, along with Chief Justice John Roberts and Justice Amy Coney Barrett—found the executive order to be unconstitutional. Justice Clarence Thomas drew from what he termed a “groundswell of new scholarship” in his dissent. Justice Brett Kavanaugh, dissenting in part, likewise pointed to the debate on the question to suggest that “the constitutional issue is not straightforward.” He argued that Congress would need to rewrite existing law to create exceptions to birthright citizenship for “children born to foreign citizens unlawfully or temporarily in the country.”…

Source: HOW THE RIGHT COULD ACTUALLY END BIRTHRIGHT CITIZENSHIP