Last week started at Supreme Court the discussion on the case Trump v. Barbara, the judicial dispute over the constitutionality of Executive Order 14160 with which, on January 20, 2025, the day of the beginning of his second term at the White House, President Donald Trump wanted to abolish the principle of jus soli (i.e. the doctrine of the automatic conferral of American citizenship upon anyone born on United States soil) for children of illegal immigrants and of parents who entered the country legally but with an authorization or visa that entails a limited stay, as is the case for example with students, temporary workers, people undergoing medical treatment and tourists.
It might have seemed that The Donald had more pressing and important matters to deal with at that juncture, primarily the war he has unleashed against Iran.
Yet, in an unusual and unprecedented decision in the history of the United States for a sitting president, he wanted to attend in person the hearing that opened the debate.
What's at stake for The Donald
Trump has a lot to lose in this case. On February 20, in a demonstration of independence from the executive branch that almost no one would have expected, even though six of the nine members were appointed by Republican presidents, three of them by the tycoon himself, the Supreme Court ruled that the president could not avail himself of the International Emergency Economic Powers Act to increase the level of customs duties without the authorization of Congress, the body to which the Constitution assigns the prerogative to regulate trade, both domestic and international.
The majority of the judges therefore rejected the package of protectionist measures launched by Trump on April 2, 2025 with another executive order, 14257, in what he had pompously renamed “Liberation Day”After seeing one of the cornerstones of his 2024 electoral platform dismantled, the tycoon now risks seeing another key measure of his sovereignist government agenda undermined, specifically a measure that The Donald considers essential to combating illegal immigration.
In fact, according to the White House, jus soli is not only a rewarding rule for the offspring of those who deliberately violate the law by illegally entering the United States, but it would even encourage illegal immigration, because it guarantees American nationality to the children of illegal immigrants, further facilitating the regularization of the legal status of mothers and fathers as parents of US citizens.
Against, Denying U.S. citizenship to the children of undocumented immigrants would make deportation easier not only of the latter but also of their parents, because there would be no more qualms about separating minors with American citizenship from mothers and fathers deported for having entered the country illegally.
Too bad for Trump that jus soli is enshrined in the Constitution and cannot be amended by presidential decree. Or at least, that's what it seems.
The constitutional provision and previous jurisprudence
The first section of the Fourteenth Amendment to the Federal Constitution provides that "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States." Attempts to restrict access to American nationality based on factors other than place of birth, through forced interpretations of the first section, were almost immediately struck down by the Supreme CourtThe Fourteenth Amendment was ratified in 1868, and in 1898 the courts recognized that it established jus soli. The occasion for its enshrinement was provided by a lawsuit brought against the United States by Wong Kim Ark, the son of a Chinese immigrant couple from Guangdong Province, born in San Francisco.
Federal authorities attempted to deny that he was a U.S. citizen on the following grounds. Since the jus sanguinis was in force in the Chinese Empire, Wong had Chinese nationality passed down to him by his parents and was therefore subject to the jurisdiction of the country of which he was a citizen – China – rather than the United States. Furthermore, the Justice Department persisted in interpreting the concept of jurisdiction broadly, asserting that it did not simply imply subjection to U.S. law, but also, and above all, indicated "political loyalty" to Washington.
As a Chinese citizen, Wong's loyalty would have been to the Celestial Empire, rather than the United States, and consequently he would not have met the requirement set by the Fourteenth Amendment for being granted American citizenship by birthright.
The Supreme Court, however, in the 1898 decision Wong Kim Ark v. United States, he proved the Washington authorities wrong, confirming that Wong had American nationality because he was born in California and thus universalizing the principle of jus soli, except for two specific categories of individuals: the children of foreign diplomats – since parental immunity could be interpreted as placing even their children outside of US jurisdiction – and children born to enemy occupation troops who had hypothetically invaded the United States.
The situation of Barbara's son
The lawyers of this case law, consolidated for over a century, have referred to Barbara, the Honduran citizen who is an illegal immigrant – whose first name is disclosed to protect her privacy – who filed a lawsuit against Trump on behalf of her minor son, whom Executive Order 14160 seeks to deny U.S. citizenship. Wong's case is particularly significant for today's controversy. In the late 19th century, Chinese immigrants were unable to obtain U.S. citizenship because naturalization was then limited to European and African immigrants or those of African descent, i.e., both white and black.
There is, therefore, a clear analogy between Barbara's legal status, ineligible for US citizenship because she is an illegal immigrant, and that of Wong's parents, who were barred from naturalization because they were Asian immigrants. In the first instance, federal judge Joseph N. Laplante—who, incidentally, was appointed to the position in 2007 by a Republican president, George W. Bush—suspended the applicability of the tycoon's decree.
The president appealed, and the case—which has since become a class-action lawsuit on behalf of the children of undocumented immigrants, thanks to the efforts of the American Civil Liberties Union, an organization committed to legal defense of civil rights—has now reached the Supreme Court.
The position of the federal government and its critical issues
According to the Trump administration, the case of Wong Kim Ark does not represent a valid precedent for the case of Barbara's son.
Wong's parents, in fact, had entered the United States legally and obtained permanent residency, unlike Barbara, who is an illegal immigrant and violated the law. For the White House, the interpretation of the 14th Amendment in terms of the establishment of jus soli would also be contradicted by the legal status of indigenous populations. Although they were clearly born on U.S. soil, Native Americans were not recognized as U.S. citizens until the enactment of the Indian Citizenship Act of 1924.
This simple observation, according to the federal government's lawyers, would demonstrate that the granting of American nationality does not depend on being born in the territory of the United States.
Yet, The 14th Amendment makes no mention of the status of parents, while Native Americans were considered until the mid-1920s as belonging to “subordinate internal nations,” according to the definition provided by a Supreme Court ruling dating back to 1831, that is, they were considered members of a sort of state enclaves with separate jurisdictions even if geographically located within the borders of the United States.
instead, Undocumented immigrants are fully subject to U.S. law, whose government, not coincidentally, especially under the tycoon's presidency, claims the right to deport them without any form of consultation with their countries of origin. The Trump administration also invokes a broad interpretation of the concept of jurisdiction, entirely similar to the one the Justice Department would have adopted in 1898: illegal immigrants and temporary visitors share "political allegiance" to an entity other than the United States. The former because they cannot access American citizenship as they entered the country illegally; the latter because their presence is temporary.
Nonetheless, the 1898 verdict had already denied that such a broad reading of the notion of jurisdiction influenced the granting of citizenship and had clarified that the only element to be taken into consideration is birth on American soil, regardless of who the parents are or where they come from.
In other words, according to the late 19th-century precedent, it's the children who should be considered, not the parents. Furthermore, a more recent Supreme Court ruling, the 1982 Plyler v. Doe decision, established that even those who enter the United States illegally are still subject to Washington's jurisdiction, and therefore the idea of "political loyalty" has nothing to do with the concept of jurisdiction.
Originalism and jus soli
The Trump administration is also trying to use a further argument to refute the universality of the principle of jus soli: the 14th Amendment was conceived in 1868 with the sole purpose of granting US citizenship to former African-American slaves, freed just three years earlier at the end of the Civil War, and to their children. overturning a sentence (Dred Scott v. Sandford) issued by the Supreme Court in 1857, when slavery was still legal, according to which African-Americans, even if born in the United States, were not American citizens because a 1790 law, still in force at the time, allowed only people of the “white race” to apply for nationality.
This is where originalism comes into play, the doctrine shared by the majority of conservative judges who currently make up the Supreme Court. According to this interpretation, The Constitution and its amendments must be applied solely in accordance with the intentions expressed by the legislators at the time of their drafting., without taking into account the changes that have taken place in American society since then.
In 1866, when the Fourteenth Amendment was introduced to Congress, two years before its ratification by the states of the Union, immigration was unregulated and, therefore, illegal immigrants did not exist. Therefore, according to federal government lawyers, it cannot be assumed that the framers of this constitutional amendment intended to grant American nationality to the children of illegal immigrants.
Nonetheless, some historians have pored over the records of the congressional debate over the text of the Fourteenth Amendment and concluded that the restrictive application of the citizenship section to African Americans only was not what the legislators at the time intended.
In particular, as they have explained in a long article on New York Times (Trump Says Birthright Citizenship Was Only for the Children of Slaves. He's Wrong, March 30, 2026), Martha S. Jones and Kate Masur identified statements by members of Congress that unequivocally expressed the awareness that the constitutional amendment about to be approved would have a much broader scope than granting citizenship to African Americans, to heal the legal flaw of the 1857 verdict, and would also involve granting it to “all” children of immigrants born in the United States, with the exception of the offspring of foreign diplomats and occupation troops.
This last category, however, still seems to offer a potential legal foothold to the Trump administration, albeit through a distortion of terminology. In fact, since his first presidency, the tycoon persists in calling illegal immigrants "invaders"The suspicion is that the definition is not a simple form of populist rhetoric to please the xenophobic resentment of its sovereignist voters, but rather constitutes an attempt to achieve legal parity between illegal immigrants and enemy soldiers who crossed the border into US territory, whose children the legislators of 1866 wanted to deny American citizenship.
It is no coincidence that the summary deportations of illegal immigrants carried out by ICE, the Immigration and Customs Enforcement, since the beginning of the second Trump administration have been carried out pursuant to the Alien Enemies Act of 1798, which authorizes the president to detain and expel citizens of enemy countries in times of war, invasion, or predatory incursion.
What Americans Think
Jus soli is an issue that sparks strong disagreements among Americans. According to a survey by the Pew Research Center, a Washington think tank, 94% support this principle for the children of legal immigrants. However, when it comes to the offspring of illegal immigrants, support drops to just 50%, a staggering 49% against it. The country is divided, with the opposition standing at 49%.
Furthermore, the divisions reveal a marked ethno-racial characterization. Fifty-eight percent of whites share Trump's position, but only 37% of African Americans and 24% of Hispanics. Asians almost mirror the polarization of society as a whole: 51% support the tycoon and 48% disagree. The divide along party lines is even more stark. Three-quarters of Democratic voters want to maintain jus soli as it has been since 1898, but just 25% of Republican voters share the same opinion.
What to expect
La judgment Supreme Court ruling on Barbara v. Trump It is expected in June, a few months after midterm elections next November, in which all the seats in the House and a third of the Senate will be up for grabs. In recent years, the highest federal court has been characterized by its abandonment of the doctrine of "stare decisis," long championed by its chairman, John G. Roberts, that is, the principle of complying with past decisions made by the Supreme Court itself. The most striking example of this was provided in 2022 by the verdict in Dobbs v. Jackson Women's Health Organization, which overturned the Roe v. Wade decision, in which the justices had established in 1973 that voluntary termination of pregnancy was a woman's right protected by the federal government.
From this perspective, the decision in Wong Kim Ark v. United States could be overturned. However, according to a model developed by the authoritative British weekly The Economist, (Six Words, April 4, 2026), The verdict in Trump v. Barbara will strike down the constitutionality of Executive Order 14160 by a 5-4 or even 6-3 majority.Moreover, even a conservative and originalist judge like Brett Kavanaugh, the first to be appointed by Trump in 2018, has shown himself skeptical about the legitimacy of the drastic reduction of jus soli proposed by The Donald.
A judicial defeat on this issue would not only be a personal setback for the president. It would prevent Trump from regaining support within the Make America Great Again (MAGA) movement. which is increasingly crumbling and distancing itself from its leader, after Trump appeared to his supporters to be abandoning the neo-isolationist policy he had reiterated in his 2024 campaign for the White House, following the military operation to capture Venezuelan President Nicolás Maduro on January 3 of this year and above all because of the start of the war against Iran undertaken on February 28.
As a result, the maintenance of the current Republican majority in the Senate and especially in the House in the November elections would be seriously jeopardized. The Maga movement could, however, reunite thanks to a Trump success on jus soli, giving Republicans a better chance of at least retaining control of the Senate.
This outcome, in fact, would not only help strengthen the tycoon's authority, currently somewhat diminished, but would also demonstrate that The Donald is still capable of keeping his promise to combat illegal immigration. The cancellation of jus soli for the children of illegal immigrants would also serve to safeguard the privileged position of Americans of Euro-descendant., who represent a numerically significant group of Trump supporters and – not surprisingly – tend to share the White House's interpretation of the first section of the 14th Amendment.
An The vast majority of illegal immigrants are Hispanic, Asian, and African.Denying their children American citizenship would serve to slow down the full transformation of the United States into a multiethnic and multiracial nation, since, according to demographers' estimates, within less than twenty years, the majority of Americans will no longer be of European ancestry.
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Stefano Luconi teaches US History in the Department of Historical, Geographical, and Ancient Sciences at the University of Padua. His publications include The “Indispensable Nation.” A History of the United States from the Colonies to Trump's Second Presidency (2026), US Institutions from the Drafting of the Constitution to Biden, 1787–2022 (2022), The Black Soul of the United States. African Americans and the Difficult Path to Equality, 1619–2023 (2023). The Race for the White House 2024. The Election of the President of the United States from the Primaries to Beyond the November 5th Vote (2024).
