Rule of Law Society and 28 GOP-Appointed and Elected Officials Defend Birthright Citizenship in Amicus Brief
Represented by Yale Law School’s Peter Gruber Rule of Law Clinic and the Wiggin and Dana law firm, the Society for the Rule of Law Institute and a group of 28 former Republican appointed and elected officials filed an amicus brief on Feb. 26 urging the Supreme Court to reject President Trump’s attempt to deny birthright citizenship to certain persons born in the United States based on their parents’ immigration status.
The brief argued that the President’s order violated the separation of powers by attempting illegal lawmaking through radical reinterpretation of the Fourteenth Amendment, a century of Supreme Court precedent, and two independent congressional enactments.
The Society for the Rule of Law Institute is a nonpartisan, nonprofit organization originally founded in 2018 by lawyers and jurists who served at the highest levels of government in previous Republican administrations. The Institute is dedicated to bringing a traditionally conservative legal perspective to the defense of the Constitution and the rule of law. Individual amici are members and friends of the Institute who have served in senior government positions during six Republican Administrations. Among them are former counsels to the president and other Executive Office of the President lawyers, Department of Justice leaders, executive branch agency heads and senior appointees, independent agency officials, retired federal judges appointed by Republicans, as well as former governors and members of Congress elected as Republicans.
Amici, drawing upon their decades of combined government experience, argue that President Trump’s attempted revision of the long-standing rule of birthright citizenship not only violates the Constitution’s Citizenship Clause and an independent statute — a position reaffirmed by numerous other amicus briefs filed yesterday but also his presidential oath, the Take Care Clause, and the separation of powers. The revision, they warn, would radically erode the Constitution’s checks and balances by empowering the Executive to disregard duly enacted laws by purporting to operate in interpretive grey areas.
On Jan. 20, 2025, President Trump signed Executive Order 14,160 declaring a new “policy of the United States”: that “citizenship does not automatically extend to persons born in the United States” if their mother was temporarily or unlawfully present in the United States and their father was not a United States citizen or lawful permanent resident at the time of their birth. The Order was quickly enjoined nationwide by three United States district courts, leading to last years’ procedural Supreme Court holding in Trump v. CASA. That ruling held that the Judiciary Act of 1789 does not grant federal courts the power to issue nationwide injunctions. The Order has now returned to the Court in Trump v. Barbara, where the merits of the President’s interpretation of the Fourteenth Amendment’s Citizenship Clause is squarely presented. Oral argument is scheduled for April 1, 2026.
Amici argued that the interpretation of the Citizenship Clause has been long settled. The Supreme Court conclusively resolved this issue 128 years ago, in the landmark 1898 decision of United States v. Wong Kim Ark. In that case, the Court held that the Citizenship Clause — which declares that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” — granted citizenship to a child born in the United States to Chinese nationals. Notably, the Wong Kim Ark Court interpreted the crucial phrase, “and subject to the jurisdiction thereof,” narrowly in line with common-law precedents stretching back to Great Britain. It explained the Citizenship Clause as a strong rebuke of the infamous decision in Dred Scott v. Sanford, unambiguously “affirm[ing] the ancient and fundamental rule of citizenship by birth within the territory,” excluding only narrow “exceptions or qualifications (as old as the rule itself)” of children born to foreign diplomats, invading enemies, and Indian tribes.
According to the brief, Executive Order 14,160 did not mention, much less seek to distinguish, Wong Kim Ark. Nor did the Order square its reasoning with Congress’s decision to adopt the rule of Wong Kim Ark in the citizenship provisions of two enacted statutes: the Nationality Act of 1940 and the 1952 Immigration and Nationality Act. The amici argued that identical provisions in those pieces of legislation, now codified at 8 U.S.C. § 1401(a), unambiguously respect the Fourteenth Amendment’s creation of a constitutional baseline of birthright citizenship by repeating its text and declaring that “[t]he following shall be nationals and citizens of the United States at birth: … a person born in the United States, and subject to the jurisdiction thereof.” (emphasis added) The legislative histories of both enactments confirm that § 1401(a) codifies birthright citizenship by explicitly referencing, with approval, the Wong Kim Ark decision. Additional statutory provisions confirmed the fundamental principle of citizenship by birth within the territory by extending statutory birthright citizenship to members of Indian tribes, persons born in United States territories, and foundlings.
The Order also flouted the unbroken practice of presidents of both parties that have followed Wong Kim Ark for more than 100 years, according to the brief. State Department passports have been issued consistently with the rule of Wong Kim Ark since before the decision was even announced. Both Department of Justice and Department of Homeland Security immigration regulations recognize citizenship regardless of parents’ immigration status. Solicitors General have for decades conceded that persons born on American soil to temporary and unlawful immigrants are citizens. And a public Office of Legal Counsel opinion, still available on the Department of Justice’s website, maintains that “apart from . . . extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States.” This unbroken practice, amici argue, render Executive Order 14,160 “unconstitutional on its face.”
According to the brief, the executive order does not seek to implement the policy judgments of the American people or their representatives. Instead, it seeks to make entirely new law, by remaking the law of birthright citizenship, which the president may not constitutionally do. As Justice Black’s majority opinion in Youngstown Sheet & Tube Co. v. Sawyer explains, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”
In issuing Executive Order 14,160, amici argue, President Trump not only exceeded his own constitutional powers, he usurped Congress’s power to make the law and the Supreme Court’s power to interpret the law. The Order thus violates the separation of powers by second guessing the Supreme Court’s authoritative pronouncement on the meaning of the Citizenship Clause and Congress’s endorsement of that view.
Amici are represented by the Peter Gruber Rule of Law Clinic at Yale Law School and by Wiggin and Dana LLP. The Peter Gruber Rule of Law Clinic was founded to address threats to the rule of law in 2016 by Sterling Professor of International Law and former Dean Harold Hongju Koh and William O. Douglas Clinical Professor of Law Michael Wishnie ’93. The clinic is now led by Koh, Aharon Barak Distinguished Rule of Law Fellow Bruce C. Swartz ’79, Peter Gruber Rule of Law Fellow Sonia Mittal ’13, as well as Visiting Lecturers in Law Eugene Fidell, Margaret Donovan, and Justin Cole ’23. Attorney Tadhg Dooley of Wiggin and Dana LLP joined the clinic in representing amici in this case.
Current Yale Law students and clinic members who worked on the brief include Madeline Babin ’26, Elizabeth Bailey ’27, Isabel Gensler ’26, Avi Gupta ’26, Riler Holcombe ’26, Samantha Kiernan ’26, Gwyn Reece ‘27, and Summia Tora ’27.
