Immigration Article of the Day: Addressing Some Perceived Anomalies Referenced in the Oral Argument in Trump v. Barbara by Samuel Estreicher

Addressing Some Perceived Anomalies Referenced in the Oral Argument in Trump v. Barbara by Samuel Estreicher, Harv. J. L. & Pub. Pol'y (forthcoming 2026)

Abstract
We have written previously of our disagreement with the conventional (or expansive) view that the Citizenship Clause of the Fourteenth Amendment automatically grants U.S. citizenship, without need for naturalization, to children born here of parents unlawfully in the country or here as visitors. [Estreicher & Reddy, Revisiting the Scope of Constitutional Birthright Citizenship (SSRN #5223361), 24 Geo. J. L. & Pub. Pol'y (forthcoming, Summer 2026).] President Trump's executive order on birthright citizenship has it right as a constitutional matter.  We also agree with the President than any change has to be prospective only and ground this on estoppel principles in view of the many years of State Department statements repeating the conventional view and also on implications of the Supreme Court's 1976 decision in Afroyim v. Rusk, that citizenship once obtained cannot be relinquished involuntarily or impliedly. We write here only to address certain perceived anomalies noted by some the Justices during the oral argument in Trump v. Barbara, No. 25-365, in the hope this will help the Court's deliberations.

These anomalies include (1) trying to explain the  Court's  emphasis in Wong Kim Ark v. US on the domicile of Wong's parents suggesting that birth here alone is not sufficient; and (2) trying to explain how the very same Congress which excluded children of parent "subject to any foreign power" from birthright ciitzenship in the 1866 Civil Rights Act  intended something entirely different – a "closed list" of historic exceptions, according to counsel for respondents – when a month or two later when they used the "subject to the jurisdiction thereof" formulation of the Citizenship Clause. 

This paper also discusses the State Department practice contemporaneous with the Clause' s ratification.