Last Tuesday, the US Supreme Court released its final merits opinion of its October 2025 term. In Trump v Barbara, a razor thin 5-4 majority deemed the President’s attempt to deny American citizenship to children born on U.S. soil to immigrant parents who are undocumented or present on certain visas unconstitutional. The majority opinion, written by Chief Justice Roberts, held that the order violated the U.S. Constitution’s 14^th Amendment, which mandates that all children born on U.S. soil and ‘subject to the jurisdiction thereof’ shall be citizens. Justice Kavanaugh, concurring only in the judgment, would have struck down the order on statutory grounds alone.

The decision is a rare and important win for immigrants and American constitutional democracy. It is rare because the Supreme Court handed the Administration a win in every other immigration enforcement-related dispute it resolved this term. And it is important because it resists one of the Administration’s most aggressive attempts to rewrite not just the country’s immigration laws and Constitution, but also its history and civic identity.

But Barbara should not be remembered as an example of principled judicial resistance against gross executive overreach. Only five Justices affirmed a constitutional rule whose meaning was textually, historically, and precedentially settled. It should, instead, be studied for the disagreement it laid bare over whether citizenship should remain constitutionally insulated from the lawless regime of executive discretion the Court has been crafting when it comes to immigration control — and, beneath that, over what makes citizenship valuable in the first place.

The Executive Order in Context

Trump v Barbara’s constitutional question was whether Executive Order 14160 was compatible with the 14^th Amendment’s citizenship clause. Until last Spring, the consensus was that the Amendment’s language conferred citizenship to all children born on U.S. soil, with a narrow set of exceptions. These pertain to “children of foreign sovereignties or their ministers, or born on foreign public ships, or of enemies within or during a hostile occupation of part of our territory, and children of members of the Indian tribes.” (United States vs. Wong Kim Ark, 169, U.S. 649, 693 (1898.) With EO 14160, President Trump sought to carve out a new exception for children born to immigrant parents who are present on temporary visas or undocumented.

Proclaiming to protect “the Meaning and Value of American Citizenship,” the order is part of the Administration’s broader attempt to instantiate a racially exclusive, white nationalist conception of American civic identity and political membership. In pursuit of this project, the executive branch has weaponized the country’s immigration enforcement machinery, and resorted to countless policies and measures that not merely stretch the limits of both statutory and constitutional law but outright ignore them. Its attempt to rewrite the Constitution’s citizenship attribution rule was merely the highest-profile example.

The Supreme Court has, by and large, chosen to legally clear the Administration’s way. The President may now adopt and enforce policies that are motivated by racial animus and ignore the statutorily prescribed process. Agencies tasked with enforcing immigration law may also use racial profiling in law enforcement sweeps, at least for the time being; can detain and deport certain non-citizens without due process and sometimes even basic habeas review; and, since last week, may strip lawful permanent residents seeking re-entry at the border of their green cards on mere suspicion—rather than clear and convincing evidence—that they may have committed a crime.

There is not a single decision by the Supreme Court from its October 2025 term that reined in the executive’s growing lawlessness in its immigration enforcement crackdown. The sole exception being Trump v Barbara, in which two Justices of the Court’s conservative wing split with their ideological allies and chose to side, instead, with the liberals.

On Citizenship Exceptionalism

Why this exception to this general pattern of conservative permissiveness towards executive overreach in immigration enforcement? It reflects, in part, a constitutionally entrenched qualitative distinction between questions of citizenship and immigration control. Constitutionally speaking, the government’s authority over citizenship and immigration are governed by two oppositional constitutional regimes. Since the Supreme Court crafted federal immigration authority in the so-called Chinese Exclusion Cases in the late 19^th century—a series of cases that granted the federal government largely unconstrained power to exclude and deport immigrants—it has treated immigration as a sphere of exceptional political discretion to which the Constitution’s ordinary norms, ideals, and limits simply do not apply. Not just that: it has also condoned racism and nativism as animating governmental concerns in this domain of governmental control.

This exceptionally permissive constitutional regime contrasts with the exceptionally restrictive one that governs the government’s authority over the distribution of citizenship. By attaching citizenship to the fact of territorial birth, the 14^th Amendment’s citizenship clause radically circumscribes the political branches’ capacity to determine who is to be an American citizen. Ratified in 1868, the Amendment was the crowning achievement of the progressive Reconstruction Congress, which sought to constitutionally entrench the civil rights of formerly enslaved people following the country’s civil war. Its drafters both sought to overturn the Court’s 1857 decision in Dred Scott v Sandford, which had held that African-Americans could not be citizens due to their race (Maj. Op., p. 7), and ensure that American citizenship became an “anticaste engine,” rather than a tool for legally entrenching the racial caste system that had disfigured the country’s constitutional and political order since its founding (Maj., p. 9; KBJ, p.15, 17).

The self-executing and near- categorical nature of the Amendment’s citizenship clause laid the foundations for what we may think of the citizenship line: the idea that however expansive the government’s authority over immigration was to be, it does not entail a power to decide who is to be an American in the first place.

History Repeats Itself

Trump v Barbara is not the first time the Supreme Court has had to decide whether it held firm on this line or was willing to subordinate the 14^th Amendment’s text and universalist, anti-caste spirit to the government’s nativism and anti-immigrant agenda. In United States v. Wong Kim Ark (1898), the Court first confronted the question whether the citizenship clause confers citizenship on children born on U.S. soil to resident immigrant parents. Wong Kim Ark was born in 1873 in California to immigrant parents who were subjects of China but not “employed in any diplomatic or official capacity.” When he returned from a temporary visit to China, the government denied him readmission on the basis that he was not a citizen and therefore excludable under the Chinese Exclusion Act. Just like Barbara, Wong Kim Ark was decided amid intense anti-immigrant, and specifically anti-Chinese, sentiment, by a Supreme Court that had otherwise been strikingly supportive of the federal government’s attempts to exclude and deport immigrants.

Yet, when the government tried to extend that campaign to citizenship itself, a Court otherwise comfortable with pouring the government’s nativism into the law, found the 14^th Amendment’s “broad and clear” words too clear to bend [704]. It rejected the government’s argument that “subject to the jurisdiction thereof” entailed a broad, allegiance-based limitation that would exclude the children of foreign subjects.  It held instead, by 7-2, that Wong Kim Ark was a citizen because he was born on U.S. soil and ‘subject to the jurisdiction thereof.’ Neither his parents’ foreign nationality nor their ineligibility for naturalization altered that fact.

Blurring the Line

Fast forward to today, and this majority has shrunk to a meagre 5-4.

The Barbara majority simply affirmed the long-standing and, until recently, undisputed history and meaning of the Citizenship Clause: to be “subject to the jurisdiction” is to be subject to the government’s “full and complete power” over persons within its territory (Majority, p.3, p.11). The exceptions to this general rule are confined to a narrow category of cases where exercising jurisdiction would “degrade the dignity” of “foreign sovereigns” (Id., citing Schooner Exchange v McFaddon, 7 Cranch 116). Such “inter-sovereign concerns” do not apply to parents unlawfully or temporarily present in the United States for no sovereign would “have any motive for wishing” them outside the authority of the United States. (Majority, p. 12)

The dissents, by contrast, took up the government’s argument that the Clause’s reference to jurisdiction does not refer to ‘bare territorial authority.’ Instead, it refers to something like ‘complete’ or ‘political’ jurisdiction (Thomas Dissent, p. 3). This, in turn, requires the individual to possess something like ‘primary’ or ‘complete’ or ‘direct and immediate’ allegiance to the U.S. in order to be subject thereto (Alito Dissent, p. 22). Such allegiance exists only if the parents are ‘domiciled’ in the United States; a requirement Wong Kim Ark’s parents satisfied, because they “came to settle in America” and “had done everything within their power to express their desire and intent to become Americans” (Thomas Dissent, p. 43). By contrast, parents present on temporary visas or unlawfully cannot meet this criterion because “by definition, [they] do not choose to make a permanent home here […].” (Gorsuch Dissent, p.2).

Justice Alito goes even further: he believes the clause does not cover all those “subject to a foreign power,” which apparently means simply being a citizen of a different country (Alito Dissent, p. 17). Thus, “children born to illegal immigrants fail this test [if] they are automatically made nationals of their parents’ native country.” (Alito Dissent, p. 37.) Resident non-citizens can only satisfy the Clause’s criterion, in his eyes, if they are “lawfully present, establish the United States as their intended permanent home, and do everything within their power to become United States citizens [emphasis added]” (Alito Dissent, p. 27)—whatever that means.

The Deeper Divide or What Makes Citizenship Valuable

Despite differing in their particulars, the dissents all share a common concern: they all believe that the near-categorical, inclusionary approach to the citizenship clause that the majority affirms supposedly degrades or devalues the “glory and dignity of American citizenship.” (Thomas Dissent, p. 1, 91; Gorsuch Dissent, p.1; Alito Dissent, p. 1). In their eyes, American citizenship is a ‘privilege’ or ‘benefit’ that ought to only be granted to a select class of people (Kavanaugh Concurrence, p.8 ; Gorsuch Dissent, p.2). Extending citizenship to the children of individuals who fall short of some implicit membership criterion—whether it be domicile, lawful immigration status, or allegiance—cheapens the status.

Underpinning this charge is an exclusive, politically defined conception of the citizenry, whose boundaries the political branches must remain free to police. The dissents therefore endorse not merely the government’s legal argument, but also its underlying theory of citizenship, which locates its value in the status’ exclusive and exclusionary nature. On this theory, citizenship cannot and should not be insulated from the President’s authority, because the exclusion the status’ value necessitates requires active policing of access thereto.

This notably contrasts with the majority’s conception of citizenship. Chief Justice Roberts concludes the opinion by noting that “citizenship, then and now, was the right to have rights— to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to “every free-born person in this land.” (Majority, p. 26). The phrase channels Hannah Arendt’s famous characterization of citizenship which supports the 14^th Amendment’s near categorical, and inclusionary rule of ascription.

On this view, the value and dignity of citizenship flows from its role in securing the ideal of democratic self-rule, by ensuring the inclusion and political voice of all those who are part of the polity by virtue of their territorial presence. This view of citizenship mandates not political discretion over the distribution of citizenship, but instead its widespread conferral upon those subject to the government’s jurisdiction. On this conception, categorical ascription and insulation from political manipulation is not incidental to citizenship’s value but constitutive of it.

The Dark Side of Citizenship Exceptionalism

After oral argument, most commentators were confident that the Court would strike down the Executive Order as unconstitutional. They were right. But most also expected a far more decisive majority than the case produced. That only two Justices from the conservative wing chose to affirm what has been long established law, clear history, and governmental policy is evidence not merely of the ideological corruption of the Court, or, less cynically, the Justices’ divergent approaches to constitutional interpretation. It is also evidence of citizenship exceptionalism’s strategic value to the Court’s own image as a political and politicized actor.

Trump v Barbara was the last decision released by the Court, following a slew of cases that handed the President wins on other key policy goals. Overall, the Court chose to further aggrandize the Presidency’s power at the expense of the Constitution’s rule of law. In upholding a foundational achievement of the Reconstruction Congress—which was a unique historical period in American constitutional history that sought to rectify the nation’s original sin and reaffirm the Constitution’s supposed commitment to egalitarian ideals—the Court can position itself as something other than the anti-constitutional institution it has, in reality, become. It signals to the broader public that it is still doing its supposed job of subjecting executive power to the Constitution’s rule of law, when in reality it is in the business of proactively dismantling it.

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