Enactment of the Law on Birthright Citizenship
John Yoo, a law professor at UC Berkeley, is weighing in on the Supreme Court’s discussions about President Trump’s executive order concerning birthright citizenship. The justices, including Chief Justice Roberts and Justice Barrett, seemed doubtful about the order’s legitimacy based on a precedent from 1898. Yoo mentioned that Trump’s physical presence in court wouldn’t change the outcome and could actually lead to greater challenges for his administration.
A group of at least seven law professors is mounting a campaign to question the traditional interpretations of birthright citizenship. They back Trump’s attempts to redefine parts of the Constitution, despite skepticism from the Supreme Court justices.
These legal scholars aim to convince critics that there are substantial originalist and historical arguments supporting a narrowed definition of birthright citizenship under the 14th Amendment. This issue, they argue, deserves consideration beyond being labeled as just a fringe political theory.
Ilan Wurman, a law professor at the University of Minnesota, stated that the recent increase in support highlights that, even with widespread agreement on birthright citizenship, it’s still a topic open for debate. “The fact that several respected law professors have shown varying levels of support for Trump’s executive order in the last year indicates the seriousness of their stance,” he noted. He emphasized that the Supreme Court can’t just depend on established beliefs; it has to provide a valid rationale for its decisions.
Wurman, who specializes in constitutional law, is among the many lawyers involved in the case, having submitted an amicus brief ahead of the April 1 oral arguments concerning birthright citizenship, which designates most infants born on U.S. soil as citizens under the 14th Amendment.
He contended that the amendment wasn’t designed to grant citizenship to children of undocumented immigrants, arguing that in the 19th century, parents considered residents of the country owed the nation loyalty in exchange for protection.
This mutual agreement, Wurman explained, generally includes legal aliens but excludes foreign soldiers and diplomats, as well as those residing illegally. “Aliens in the country illegally would likely have been excluded from these provisions,” he added.
Other law professors involved include Randy Barnett from Georgetown University, Kurt Rush from the University of Richmond, Richard Epstein from New York University, Tom Lee from Fordham University, Adrian Vermeule from Harvard University, and Philip Hamburger from Columbia University, all of whom have suggested that Trump’s approach to birthright citizenship has constitutional merit.
An executive order from Trump soon after he took office aims to prevent children born to illegal immigrants or temporary residents from automatically obtaining citizenship. While most justices, except Justices Thomas and Alito, seem inclined to overturn the order, the case has ignited a polarized conversation. Should the Supreme Court validate Trump’s interpretation, it could strip citizenship from many currently eligible individuals and significantly alter immigration policy.
The Trump administration argues that temporary visitors and undocumented migrants fall outside U.S. “jurisdiction,” claiming that the amendment was intended only for freed slaves from the Civil War era. It further asserts that lenient citizenship policies fuel illegal immigration.
Chief Justice Roberts challenged the government’s stance on small exceptions within the 14th Amendment. He remarked that comparing such exceptions—like those for children of foreign diplomats—to entire groups of illegal immigrants seemed unfounded. “The examples you give seem very extreme to me,” Roberts said, questioning how one could extend from “singular examples” to a broad class of illegal residents.
Lawyers from the ACLU, who oppose the executive order, argued that the policy is firmly rooted in the 14th Amendment and its exceptions are purposefully limited to protect from governmental overreach. “Only individuals under the umbrella of extraterritoriality are excluded, as their jurisdiction is governed by another sovereign,” stated ACLU attorney Cecilia Wang.
Wurman mentioned that professors supporting the executive order have faced strong backlash. David Beer from the CATO Institute, noted that the opposition’s claims lack credibility, saying, “Oh, seven!? That’s surprising considering the overlap with presidential alignment in court appointments.” He found the situation disheartening, expressing disappointment in what he perceives as misplaced efforts for a questionable cause.
