Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.
The future of President Donald Trump’s executive order attempting to limit access to birthright citizenship is now positioned for a final decision from the Supreme Court. Questioning from the justices, during approximately two hours of oral arguments in Trump v. Barbara, suggests an icy reception for the Justice Department’s claim that the constitutional guarantee of citizenship turns on an innovative interpretation of the legal concept known as “domicile.” Without acceptance of that interpretation by the court, the Trump administration is unlikely to successfully defend the president’s directive.
***
Trump’s executive order, which he issued on January 20, 2025, claims that the 14th Amendment grants U.S. citizenship to children born in the United States depending on the citizenship or immigration status of their parents. The amendment’s citizenship clause provides that a person becomes a citizen “of the United States and the state wherein they reside” if they are born in the United States and are “subject to the jurisdiction thereof.”
To successfully defend the constitutionality of Trump’s order, U.S. Solicitor General D. John Sauer will have to convince a majority of justices on three fronts. First, that “subject to the jurisdiction thereof” means a person is “domiciled” in the United States. Second, that domicile should be interpreted to require legal permission to live in the United States indefinitely as a permanent resident, the most privileged form of immigration status, rather than temporarily or altogether without the federal government’s permission. Third, that children born in the United States acquire citizenship at birth only if their mother was domiciled in the country at the time of the child’s birth.
The text of the citizenship clause does not use the term domicile, but the Trump administration argues that it is implied. Sauer, who is the federal government’s lead attorney before the Supreme Court, argued that “reside,” which does appear in the citizenship clause (in terms of state citizenship), “means domicile in the Constitution.” For children to acquire U.S. citizenship at birth, the constitutional provision “presupposes domicile,” he told the justices. Though none of them openly embraced Sauer’s effort to read domicile into the 14th Amendment, none explicitly rejected his argument either.
Recommended Citation: César Cuauhtémoc García Hernández, Why the Supreme Court’s birthright-citizenship decision may depend on the meaning of “domicile”, SCOTUSblog (Apr. 20, 2026, 9:30 AM), https://www.scotusblog.com/2026/04/why-the-supreme-courts-birthright-citizenship-decision-may-depend-on-the-meaning-of-domicile/
Leave a comment