Samuel Estreicher (New York University School of Law) and Rudra Reddy (New York University School of Law) have posted Addressing Some Perceived Anomalies Referenced in the Trump v. Barbara Oral Argument (Harvard Journal of Law & Public Policy: Per Curiam, Spring 2026, No. 071) on SSRN. Here is the 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. See Samuel Estreicher & Rudra Reddy, Revisiting the Scope of Constitutional Birthright Citizenship, 24 GEO. J. L. & PUB. POL’Y (forthcoming Summer 2026).
We write here only to address certain perceived anomalies noted by some the Justices during the oral argument in Trump v. Barbara in the hope that it will help the Court’s deliberations. We address three points: (1) explaining the Court’s emphasis on the U.S. domicile of Wong’s parent in the landmark case, United States w. Wong Kim Arl; (2) discussing the difficulty in the position that the same Congress that excluded children of parents “subject to any foreign power” from birthright citizenship intended something radically different in using the “subject to the jurisdiction” of the United Staes formulation in the Citizenship Clause of the Fourteenth Amendment which they submitted to the States only a month or two later; and (3) highlighting the interpretation of the State Department over several administrations during the decades contemporaneous with the Amendment’s ratification.
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