Trump v. Barbara: Respondents File Merits Brief Defending Birthright Citizenship Ahead of April 1 Argument

Respondents in Trump v. Barbara, No. 25-365, filed their merits brief on February 19, 2026, urging the Supreme Court to affirm that Executive Order 14,160—which directs federal agencies to deny citizenship documents to children born on U.S. soil to parents who are undocumented or present on temporary visas—violates both the Fourteenth Amendment’s Citizenship Clause and the federal birthright citizenship statute, 8 U.S.C. § 1401(a). Lead counsel Cody Hirt Wofsy of the American Civil Liberties Union Foundation filed the brief on behalf of a certified class of children who would be denied citizenship under the order.

President Trump signed Executive Order 14,160 on January 20, 2025, on his first day in office. The order, which has never taken effect, instructs executive agencies not to recognize as citizens children born more than thirty days after the order’s effective date if neither parent is a U.S. citizen or lawful permanent resident. Federal district courts uniformly blocked enforcement. The government sought certiorari before judgment in September 2025, and on December 5, 2025 the Court granted the petition in this First Circuit class action, bypassing appellate review. Solicitor General D. John Sauer represents the government as petitioner.

Respondents’ brief centers on the meaning of “subject to the jurisdiction thereof” in the Citizenship Clause. The government reads that phrase to require “direct and immediate allegiance”—a form of political subjection that temporary visitors and undocumented persons allegedly cannot satisfy. Respondents counter that the phrase means simply being subject to U.S. laws and authority, a reading they contend is compelled by United States v. Wong Kim Ark, 169 U.S. 649 (1898), in which the Court held that children of alien parents domiciled in the United States are citizens by birth. Respondents also argue the order conflicts with 8 U.S.C. § 1401(a), which Congress enacted to codify the Citizenship Clause and has been interpreted consistently with Wong Kim Ark for over a century.

The case is one of two birthright citizenship cases pending before the Court this term. The companion case, Trump v. Washington, No. 25-364, presents the same constitutional question from the Ninth Circuit, but also implicates state standing doctrine that could allow the Court to resolve the merits in Barbara while disposing of Washington on narrower grounds. SCOTUSblog provides a detailed overview of the case, and the Just Security birthright citizenship series examines the historical arguments in depth. A coalition of legal organizations announced the respondents’ brief in a joint press release on February 19, 2026.

Oral argument in Trump v. Barbara is set for April 1, 2026. A decision is expected by late June 2026.