Opinion
The Fourteenth Amendment Barely Survives Its Latest Attack
By Yvette Machado-Tuinier
November 3, 2026
On June 30, 2026, the Supreme Court, led by Chief Justice John Roberts, reaffirmed a rule Americans once considered obvious: birth on U.S. soil guarantees U.S. citizenship. In Trump v. Barbara—aka the “Birthright Citizenship Case”—the justices struck down a presidential executive order that tried to deny citizenship for children born in the United States to parents who are undocumented or temporarily present in the country.
The Fourteenth Amendment lived to see another day, but hold the applause. The Roberts Court did not heroically protect our civil liberties. Taking a closer look: six justices voted to strike the order down. But only five of them said the Constitution required that result. Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson.
Justice Brett Kavanaugh, the man we can credit for the “Kavanaugh Stop,” agreed with the outcome and refused to join the constitutional holding. He rejected the order on statutory grounds instead. He wrote that the order does not violate the Fourteenth Amendment, and that Congress could amend the statute to create new exceptions to birthright citizenship. That is an opening, and using it would not require a constitutional amendment. The three dissenting justices—Thomas, Alito, and Gorsuch—wrote at length. Their dissents appear to lay out arguments they hope others will pick up and reuse.
What is an executive order?
It is a directive from the president instructing federal agencies on how to operate. While it carries weight, but it is not an actual law passed by Congress. Think of it as a high-level memo from the boss to the staff—not a binding authority.
What is a “Kavanaugh Stop?
The term was coined after a 2025 Supreme Court case in which Justice Kavanaugh wrote separately, in a concurrence to an emergency-docket order that no other justice joined, saying that federal agents cannot stop someone just for looking Latino—but they can if they combine it with other vague excuses, like “speaking Spanish” or “wearing work clothes” (ie. day laborer attire).
Much like his statutory dodge in the birthright citizenship case, it is a classic Kavanaugh maneuver: he claims to protect a constitutional right on paper, while quietly handing politicians and federal agents a massive loophole to bypass it in real life.
What does “undocumented” mean?
It refers to someone living in the U.S. without official legal paperwork. We use this instead of “illegal” because being in the country without legal status is a civil violation, not a crime, much like an expired car registration at the DMV. Crossing the border without permission is a separate act, and that one is a misdemeanor. In this specific Executive Order, the policy targeted parents who were “unlawfully present” when their child was born.
What are statutory grounds?
When a judge decides a case on “statutory grounds,” they base their ruling on a specific written law (a statute) passed by Congress, rather than deciding if something violates the U.S. Constitution. Here, Kavanaugh essentially said, “This order breaks a specific immigration rule Congress wrote,” allowing him to dodge the bigger constitutional question of the Fourteenth Amendment altogether.
The 14th Amendment: A Rule Built to Withstand Political Games
The text of the Fourteenth Amendment establishes an unmistakable baseline:
“All 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.”
The Reconstruction Congress drafted those words after the Civil War to overturn Dred Scott v. Sandford, the infamous ruling that declared Black Americans could never hold citizenship. Lawmakers chose the common-law principle of jus soli— “the right of the soil.” Meaning, if you take your first breath on U.S. territory, you are a citizen.
The drafters of the 14th Amendment deliberately created an easily manageable rule. They had watched individual states ration basic rights by race and wanted a safeguard no politician could manipulate. Senator Jacob Howard promised the constitutional text would settle citizenship “once and forever,” beyond the reach of hostile majorities. A rule based on place of birth is easy to apply and hard to bend. A rule based on a parent’s status, intent, or “allegiance” requires a case-by-case judgment call, and those calls are applied unevenly.
In 1868, the phrase “subject to the jurisdiction thereof” had a simple meaning. If a government can make you follow its laws and answer in its courts, you are under its jurisdiction.
JUS SOLI: Who Had the “Right of the Soil”
General Constitutional Rule
Anyone born on U.S soil is a U.S citizen at birth.
Governed by U.S authority.
Historical Exceptions (1868)
Children of foreign accredited authorities diplomats.
Children of hostile occupying armies.
Members of sovereign Indian tribes. (In 1868; Congress extended citizenship to all Native Americans born in the United States in 1924)
What was the Reconstruction Congress?
This refers to the lawmakers who ran the federal government immediately following the Civil War. Their main job involved rebuilding a fractured country and passing massive constitutional updates—specifically the 13th, 14th, and 15th Amendments. These lawmakers essentially rewired the rules of American democracy to officially abolish slavery, establish birthright citizenship, and guarantee equal civil rights for newly freed Black Americans
In 1898, the Supreme Court cemented this framework in United States v. Wong Kim Ark. The Court held that a San Francisco-born son of Chinese immigrants was a U.S. citizen at birth, even though federal exclusion laws barred his parents from ever naturalizing.
The Administration’s Invented History
On January 20, 2025, Executive Order 14160 claimed that legal scholars, courts, and Congress had misread the Constitution for 150 years. Federal district courts in Maryland, Washington, Massachusetts, and New Hampshire immediately blocked the order. The Supreme Court initially skirted the constitutional merits in a case called Trump v. CASA, Inc., restricting universal injunctions. Within hours, the ACLU refiled the challenge in New Hampshire as a class action on behalf of affected infants, and District Judge Joseph Laplante certified the nationwide class on a one-dollar bond. The administration rushed the case straight back to the Supreme Court.
Trump v. Barbara
A Timeline of the legal challenge to birthright citizenship.
Jan 20 2025
Executive Order Issued Cause: President Trump issues Executive Order 14160, Protecting the Meaning and Value of American Citizenship. The order directs federal agencies to deny birthright citizenship to certain U.S.-born children whose parents are undocumented or temporarily in the United States. Effect: The order directly challenges the traditional understanding of the Fourteenth Amendment’s Citizenship Clause |
Early 2025
Executive Order Blocked Cause: Several federal district courts block the executive order as lawsuits move forward. Effect: The courts find that the challengers are likely to succeed on their Fourteenth Amendment claims. |
June 27 2025
Trump v. Casa, Inc. Cause: The Supreme Court limits the use of nationwide, or “universal,” injunctions. Effect: The Court addresses how broadly lower courts may block federal policies. It does not decide whether the birthright citizenship order is constitutional. |
July 10 2025
Barbara v. Trump Cause: A federal judge in New Hampshire provisionally certifies a nationwide class of children affected by the order and blocks the order for that class. The court requires a $1 bond. Effect: The class-action approach creates a new path for nationwide relief after CASA. |
April 1 2026
Trump v. Barbara Cause: The Supreme Court hears arguments over the meaning of “subject to the jurisdiction” in the Fourteenth Amendment. Effect: The Court directly considers whether children born in the United States to undocumented or temporarily present parents receive citizenship at birth. |
June 30 2026
Trump v. Barbara Cause: The Supreme Court holds that these U.S.-born children are “subject to the jurisdiction” of the United States and are citizens at birth. Effect: The ruling invalidates Executive Order 14160’s attempt to deny these children citizenship. |
At oral argument, Solicitor General D. John Sauer argued that “subject to the jurisdiction” actually requires “political jurisdiction,” demanding proof of parental “allegiance” or lawful “domicile.” The Court rejected that argument. Neither “allegiance” nor “domicile” appears anywhere in the Fourteenth Amendment. The majority found no evidence that the people who ratified the Amendment thought they were imposing a domicile requirement. The allegiance argument also makes little sense when applied to the babies Trump’s Executive Order sought to deny citizenship. A newborn cannot choose loyalty to a country, but a child born here is subject to U.S. law from the moment of birth.
Congress did not pass a general immigration restriction until the Immigration Act of 1882, fourteen years after the Fourteenth Amendment was ratified.
The Reconstruction Congress could not have written the Fourteenth Amendment around the modern concept of “unlawful presence” because that federal immigration category did not exist in 1868.
The logic also runs backward. The fact that “illegal immigration” was not a legal category in 1868 does not mean the Fourteenth Amendment excluded people who would later fall into that category. Illegal conduct existed even when the Amendment was written—including forms of forced labor that continued after slavery was abolished—and people who break U.S. law are still subject to U.S. law. Being here unlawfully does not place someone outside U.S. jurisdiction; the government’s power to arrest, prosecute, or deport that person shows the opposite. A child born here is likewise subject to U.S. law from birth.
During oral arguments, Justice Amy Coney Barrett pressed a decisive historical question: under centuries of common law, “foundlings”—abandoned infants with unknown parents—automatically received citizenship at birth. The government’s domicile theory would render every abandoned baby stateless because no one could prove the parents’ legal status. Barrett joined Chief Justice Roberts and the liberal wing, holding that modern immigration disputes cannot rewrite a century and a half of settled constitutional text.
Soundbites, Revisionism, and the Dissenters
The dissenting justices said they were following the Constitution’s original meaning. But parts of their reasoning relied more on narrow readings, modern immigration concerns, and policy arguments than on the full text and history.
Clarence Thomas joined by Gorsuch
What They Argued Said that The Citizenship Clause was mainly meant to protect formerly enslaved people. He also treated important parts of Wong Kim Ark as less controlling. Main Problem This reading makes the Citizenship Clause narrower than its text. It also gives less weight to history showing that birthright citizenship reached beyond formerly enslaved people. |
Samuel Alito
What They Argued Warned that broad birthright citizenship could encourage “birth tourism” and more illegal immigration. Main Problem These are policy concerns. They do not answer what the Constitution meant when the Fourteenth Amendment was adopted. |
Neil Gorsuch
What They Argued Treated children of temporary visitors differently and raised separate concerns about children of undocumented parents. Main Problem The Fourteenth Amendment does not divide children based on modern visa categories or immigration status. |
Brett Kavanaugh
What They Argued Focused on the federal citizenship law, 8 U.S.C. § 1401(a), and suggested Congress may have room to create some citizenship rules. Main Problem Congress cannot change citizenship rules that the Constitution itself fixes. Any new exception would still have to comply with the Fourteenth Amendment. |
Justice Clarence Thomas—the oldest justice on the bench—argued that the Fourteenth Amendment was a narrow, race-specific fix rather than a universal guarantee. The majority said there was “scant evidence” for what it called a “dramatically revisionist view” of the Clause. That reading is hard to square with Wong Kim Ark itself, which granted citizenship to the son of Chinese immigrants at a time when federal law barred his parents from ever naturalizing. To erase 128 years of precedent, Thomas dismissed the core holding of Wong Kim Ark as mere dicta—judicial commentary future courts can cast aside. The method is familiar. Recharacterize a holding as dicta, then treat it as optional. Scholars traced the same pattern in the decades before Dobbs overturned Roe v. Wade.
Justices Thomas and Alito both invoked “birth tourism” in their dissents, and Alito warned that the ruling would encourage more unlawful immigration. The numbers do not carry the weight they imply. The CDC recorded about 9,600 births in 2024 to mothers who listed a foreign address. Researchers estimate that deliberate birth tourism accounts for between 5,000 and 26,000 births a year, out of roughly 3.6 million total births in the United States. That is well under one percent on any estimate.
Alito’s own opinion shows the strain. He would deny citizenship to any child another country would automatically claim as its national, then carve out an exception for children whose parents have “done everything within their power . . . to become Americans.” The majority points out that he never explains how that exception fits his reading of the text. That is a policy line, not a textual one, and Congress draws policy lines.
Justice Jackson’s Concurrence Outshines Kavanaugh’s
Justice Kavanaugh’s words have a dangerous reach. While he voted to strike down the executive order for violating current federal statutes (8 U.S.C. § 1401(a)), he explicitly invited Congress to pass new legislation that would shrink birthright citizenship. As immigration attorney Veronica Cardenas emphasized in Slate, Kavanaugh handed Congress a roadmap. Kavanaugh and the three dissenters make four justices who did not join the constitutional holding, and Kavanaugh is also one of the six who struck down the order. Four is one short. A statute narrowing birthright citizenship would still need a fifth vote to survive, and the Court’s membership can change.
But Kavanaugh’s words won’t echo through history.
Justice Ketanji Brown Jackson, in her concurring opinion, reminds us of our nation’s promise. She answered Justice Thomas directly, describing the Reconstruction Amendments as advancing “anticaste” principles and calling the Fourteenth Amendment an “ambitious transformation” of the country. Justice Jackson is right about Reconstruction’s purpose—her words will serve as a moral litmus test for generations. The majority answered Kavanaugh in a footnote, and only on the Constitution. His reading would have denied citizenship to Wong Kim Ark himself, so he carves out an exception for that case, which the Court calls at war with his own unifying principle. Kavanaugh’s invitation to Congress sits on the books, unanswered. That is the ground the next fight will be fought on.
A Dwindling Defense
Had the executive order taken effect, hospital maternity wards and local registries would have operated as immigration checkpoints. Parents would have had to prove legal status just for newborns to receive Social Security numbers and passports. The Migration Policy Institute estimated this policy would strip citizenship from roughly 255,000 babies each year, leaving them undocumented or entirely stateless.
The Supreme Court’s shifting votes reveal a crumbling firewall. In 1898, United States v. Wong Kim Ark upheld birthright citizenship by a strong 6–2 margin. In 2026, only five justices held that the Constitution actually protects it. The text of the Fourteenth Amendment has not changed since 1868, yet judicial protection around it is actively shrinking.
The Roberts Court merely scheduled a rematch—and it arrived immediately. On August 6, 2026, the President signed two more executive orders targeting birthright citizenship. Five days later, the same attorneys who won Barbara returned to Judge Laplante’s courtroom to enforce their injunction.
The Constitution Belongs to Us
Senator Jacob Howard promised the Citizenship Clause would settle this issue “once and forever.” Trump v. Barbara proves that “forever” still requires defending. The Supreme Court may have handed Congress the playbook. By carving out a statutory loophole, Justice Kavanaugh gave lawmakers a green light to attack birthright citizenship through standard legislation rather than a constitutional amendment.
The fight now shifts from the courts to the Capitol. The people deciding what happens next answer directly to voters. Constitutional guarantees survive only through public vigilance—when citizens look past the headlines and spot politicians sneaking through a backdoor. The Fourteenth Amendment survived its latest challengers. If we want it to survive the next round, we must defend it ourselves.