Faculty Address Supreme Court Birthright Citizenship Case

On April 1, the U.S. Supreme Court will hear oral arguments in Trump v. Barbara, a case considering the constitutionality of the administration’s executive order to limit birthright citizenship, the granting of citizenship to anyone born within the country’s borders.

Executive Order 14160, issued on the first day of President Trump’s second term, aims to restrict birthright citizenship to children who have at least one parent who is a citizen or a lawful permanent resident.

The plaintiffs argue that the executive order violates the Constitution’s 14th Amendment, which states that “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.” 

Yale Law School faculty and students have submitted several amicus briefs to the Supreme Court. They have also been quoted in the media to explain the case. Below is a selection of those briefs and interviews.
 

Akhil Reed Amar 

President Trump’s executive order “defies the plain letter and spirit of the 14th Amendment’s first sentence, one of the crown jewels of our Constitution,” writes Akhil Reed Amar ’84, Sterling Professor of Law and Political Science, in his amicus brief to the Supreme Court. 

Amar has also written a series of articles about the case on SCOTUSblog with his brother Vikram Amar ’88, professor at the UC Davis School of Law. They maintain that the 14th Amendment is clear that all children born in the United States are citizens, stating that the text focuses on the child’s place of birth rather than the parents’ status.

This interpretation should be supported by originalists, Amar writes, noting that the amendment’s Reconstruction-era authors intended to establish birth equality regardless of race or parentage.

“Surely faithful originalists should attend to what the words say and what they do not say,” Amar wrote on SCOTUSblog. “The Trump administration — by basing one’s entitlement to citizenship on the status of his or her parents — essentially reads into the amendment the words parent, parental domicile, parental allegiance, mother and father. But these words are not in the amendment. The amendment focuses entirely on the child — the one who is ‘born.’ Some, but only some, of the self-described originalist briefs give this key textual point the enormous weight it deserves.”

Read: Brothers in Law articles on SCOTUSblog 

Read: “Who Stands to Lose in the Birthright Citizenship Case,” The New York Times, Feb. 20, 2026

Read: Amicus brief to the U.S. Supreme Court by Akhil Reed Amar 

Harold Hongju Koh

Sterling Professor of International Law Harold Hongju Koh and the Peter Gruber Rule of Law Clinic filed an amicus brief with the Supreme Court on behalf of the Society for the Rule of Law Institute and a group of 28 former Republican appointed and elected officials. The brief urges the court to reject President Trump’s executive order to limit birthright citizenship. 

The brief argues that the President’s order violates the separation of powers by attempting illegal lawmaking through radical reinterpretation of the 14th Amendment, a century of Supreme Court precedent, and two independent congressional enactments. 

“The [executive] Order is a brazen attempt by the President to assert power that the Constitution denies him and instead entrusts to the other two branches. While Presidents have become increasingly powerful executives, the Constitution still does not permit them to remake settled law by personal diktat,” the brief states.

Read: Amicus brief to the U.S. Supreme Court by the Peter Gruber Rule of Law Clinic

Samuel Moyn

Samuel Moyn, the Kent Professor of Law and History, has written a series of posts on the Balkinization blog that trace the history of efforts to overturn birthright citizenship and the competing legal arguments involved. 

In the first post, Moyn and his co-author Pranjal Drall, a J.D./Ph.D. student, discuss the political dynamics of the citizenship case and how they influence the legal arguments for and against it.

“After their loss in the general election produced Trump’s executive order, liberals hope to win at the Supreme Court. If they do, it will be because the politics of interpreting law favored their side, not because of the quality of their legal work,” they write.

In their second post, Moyn and Drall describe how the movement to limit birthright citizenship gained traction in President Trump’s second term, as a changing political environment was joined with a new wave of revisionist legal scholarship.

Read: Birthright Citizenship and the Politics of Constitutional Law Part I, Balkinization, March 24, 2026

Read: Birthright Citizenship and the Politics of Constitutional Law Part II, Balkinization, March 25, 2026

Read: Birthright Citizenship and the Politics of Constitutional Law Part III, Balkinization, March 26, 2026

Jed Rubenfeld

Soon after the executive order was issued, Professor of Law Jed Rubenfeld wrote an op-ed in The Wall Street Journal about the case, stating that while he supports eliminating birthright citizenship for children of people in the country illegally, he predicted that “the court will likely hold that enacting that policy into law would take a constitutional amendment, not an executive order.”

He also traces the history of the interpretation of the 14th Amendment’s phrase “subject to the jurisdiction thereof.” He wrote that in 19th-century legal usage, being “subject to the jurisdiction” of the U.S. had a long-settled, straightforward meaning.

“Could you be prosecuted in an American court and imprisoned in an American jail for violating American law? If so, you were subject to U.S. jurisdiction. That’s true of virtually everyone in America, including aliens, even illegal ones,” he wrote.

In a commentary in The Free Press after the Supreme Court heard arguments in Trump v. Barbara and another case, Noem v. Al Otro Lado, Rubenfeld predicted a loss for the administration in the former and a win in the latter case. “If so, the Court will be right in both,” he wrote.

Read: “Can Trump Ban Birthright Citizenship?” The Wall Street Journal, March 16, 2025

Read: “Trump Will Lose on Birthright Citizenship—but an Immigration Win Is Coming” The Free Press, April 1, 2026

Keith Whittington 

Keith Whittington, the David Boies Professor of Law, submitted an amicus brief to the Supreme Court and has written several articles about the case, arguing that the executive order limiting birthright citizenship is wrong.

Whittington’s writing focuses on the history and scope of the common law rule of birthright citizenship as it developed in England and was carried into the United States and eventually embodied in the text of the 14th Amendment.

In a symposium issue of The Harvard Journal of Law and Public Policy, Whittington writes, “Children born within the territory of the United States are natural-born citizens except under very narrow exceptions. Those historically recognized exceptions do not include the case of unauthorized aliens, and there is nothing about the logic of those exceptions that make them analogous to the modern situation of unauthorized aliens.”

Read: “The Original Meaning of Birthright Citizenship,” Reason/The Volokh Conspiracy, Feb. 11, 2026

Read: “By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States,” Harvard Journal of Law and Public Policy, Vol. 49

Read: Amicus brief to the U.S. Supreme Court by Keith Whittington

Read: “The Historic Case for Birthright Citizenship,” The Dispatch, March 2, 2026