Eugene Lucci (Court of Appeals of Ohio, 11th District) has posted Complete Jurisdiction: The Opinion the Supreme Court Should Have Written in Trump v. Barbara on SSRN. Here is the abstract:
On June 30, 2026, in Trump v. Barbara, 609 U.S. ___ (2026), the Supreme Court held that children born in the United States to unlawfully or temporarily present parents are “subject to the jurisdiction thereof” and citizens at birth under the Fourteenth Amendment. The holding commanded five votes; four Justices rejected it—but in four separate writings that never joined in a single opinion. This Article presents, in the form of a complete judicial opinion, the decision the Court should have rendered instead, supplying what the fragmented dissents did not: one opinion unifying the textual, historical, and doctrinal case for the allegiance-based reading of the Citizenship Clause.
The question is not settled by United States v. Wong Kim Ark, 169 U.S. 649 (1898). By the express terms of the question Wong decided, its holding reached only a child born to parents of “permanent domicil and residence” who were lawfully settled and “carrying on business” in the United States. Unlawful and merely temporary presence—categories that barely existed in 1898—were never before that Court. Wong must be distinguished, not extended.
The Court’s deeper error was assuming that the Citizenship Clause simply codified the English common-law rule of birthright subjectship. Its framers required the “complete” jurisdiction of the United States—in Senator Trumbull’s words, “not owing allegiance to anybody else.” That is a demand for exclusive political allegiance, not mere birth within the sovereign’s territory or protection.
Refusing to render the jurisdictional phrase surplusage, the opinion holds that neither class of children reached by the Executive Order acquires citizenship at birth: not the children of parents who entered without the sovereign’s leave or overstayed it, and not the children of lawful temporary visitors, whose evanescent allegiance expires the moment the family departs.
The author posted a shorter simulated opinion resolving the question the same way to SSRN on May 11, 2026—forty days after oral argument, and seven weeks before the decision issued. This Article is that analysis in mature form, rebuilt against the decision as rendered.
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