Why it matters
The House Judiciary Subcommittee on the Constitution and Limited Government held a hearing September 2 examining potential legislative responses to the Supreme Court’s decision striking down President Donald Trump’s (R) attempt to restrict birthright citizenship. The hearing came two months after the Court held that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment.
The administration has continued pursuing narrower restrictions. Trump issued another executive order in August targeting additional categories of U.S.-born children, and a federal judge in Maryland subsequently blocked enforcement of that order against a nationwide class of affected children, saying the Supreme Court had already resolved the underlying constitutional question.
The big picture
The Supreme Court’s June 30 ruling in Trump v. Barbara struck down the administration’s first birthright-citizenship executive order. The Court held that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth under the Fourteenth Amendment.
Trump had issued the executive order on his first day back in office in January 2025. It would have prohibited children whose parents were undocumented immigrants or only in the United States temporarily from automatically receiving citizenship in specified circumstances.
The Court’s majority relied heavily on English common law, the history of the Fourteenth Amendment and United States v. Wong Kim Ark. Roberts wrote that the constitutional phrase “subject to the jurisdiction thereof” refers to the government’s authority over people within U.S. territory and that the historical exceptions were narrow, principally involving children of foreign diplomats and certain tribal members under 19th-century law.
With executive action constrained by the ruling, Republican lawmakers used the hearing to explore whether Congress could legislatively define the phrase “subject to the jurisdiction thereof” more narrowly. Committee Chair Rep. Chip Roy (R-TX) has argued that Congress should define the phrase to tie citizenship more closely to parental citizenship or status.
What they're saying
Four witnesses testified before the subcommittee: Kansas Attorney General Kris Kobach, Center for Renewing America Senior Fellow Ken Cuccinelli, Immigration Accountability Project Policy Director Rosemary Jenks and Jonathan Weinberg, a distinguished professor of law at Wayne State University.
Jenks argued that the Supreme Court’s ruling against the executive order did not eliminate Congress’ authority over immigration and naturalization. She urged lawmakers to pursue statutory restrictions on birthright citizenship and related immigration benefits.
Kobach argued that Congress retains authority to define the meaning of the Fourteenth Amendment’s jurisdiction clause and advocated legislation narrowing automatic citizenship for some children born to noncitizen parents.
Cuccinelli similarly argued for a narrower interpretation of the Citizenship Clause and supported congressional action following the Court’s decision.
Weinberg defended the Court’s ruling and argued that birthright citizenship is constitutionally guaranteed to nearly all people born in the United States regardless of their parents’ immigration status. His testimony emphasized that the rule derives from the text, history and longstanding interpretation of the Fourteenth Amendment.
Witnesses and Republican lawmakers also focused on birth tourism and international surrogacy. The hearing included claims that hundreds of thousands of Chinese nationals may hold U.S. citizenship obtained through birth tourism, that hundreds of Chinese companies market birth-tourism services and that tens of thousands of Chinese nationals give birth in the United States annually. Those figures were presented during the hearing but should be treated as estimates rather than established federal statistics.
Roy and Rep. Tom Tiffany (R-WI) had previously sent a March letter to administration officials raising concerns about China-linked birth tourism and visa policies in the Northern Mariana Islands.
Political stakes:
Jenks proposed rules affecting non-immigrant visa holders seeking welfare benefits on behalf of their U.S.-born childrenand urged Congress to restrict certain immigration benefits that flow through U.S.-born children. Her testimony also called for legislation addressing birth tourism, international surrogacy and immigration sponsorship.
The Supreme Court majority rejected the administration’s argument that the Citizenship Clause should turn on parental domicile or immigration status. It held that the historical meaning of jurisdiction encompassed people present within U.S. territory even temporarily, subject to narrow exceptions.
The Court’s dissenters disagreed. Justice Thomas argued that the Citizenship Clause should be understood more narrowly, while Justice Alito emphasized parental domicile and warned about incentives created by a broad interpretation of birthright citizenship.
The U.S. foreign-born population is about 50.2 million according to the Census Bureau, a category that includes naturalized citizens, lawful permanent residents, temporary migrants, refugees, asylees and unauthorized immigrants. The original characterization of more than 51 million “aliens” was therefore both outdated and imprecise.
The Supreme Court’s decision does not prevent Congress from legislating on immigration or citizenship-related procedures, but any statute denying citizenship to children whom the Court has held are citizens at birth would face the Court’s interpretation of the Fourteenth Amendment in Trump v. Barbara. The majority held that the constitutional guarantee itself reaches children born in the United States to parents who are unlawfully or temporarily present.
The administration has nevertheless continued testing narrower theories. Trump’s August executive order attempted to exclude additional categories of children from automatic citizenship, but a federal judge blocked its enforcement against a certified class, finding that the Supreme Court had already established their citizenship rights.
What's next
The House Judiciary Committee leadership, chaired by Rep. Jim Jordan (R-OH) with Rep. Jamie Raskin (D-MD) as ranking member, could consider legislation addressing birth tourism, immigration benefits or the statutory meaning of the Citizenship Clause. The subcommittee’s official hearing notice specifically described the proceeding as an examination of potential legislative responses to Trump v. Barbara.
The administration is also continuing to defend its newer birthright-citizenship restrictions in court. The September injunction against the August order could produce additional appellate litigation and potentially return the issue to the Supreme Court.
The Bottom Line
The Supreme Court has held that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth, substantially limiting executive efforts to narrow birthright citizenship. House Republicans are now examining whether Congress can pursue narrower statutory restrictions, while Democrats and constitutional scholars argue that legislation cannot override the Court’s interpretation of the Fourteenth Amendment.
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