Law Professors Challenge Birthright Citizenship Interpretation as Supreme Court Signals Skepticism

A coalition of at least seven prominent law professors has launched a campaign to challenge the longstanding interpretation of birthright citizenship in the United States, providing legal support for former President Donald Trump’s efforts to narrow the constitutional provision. Their intervention comes as Supreme Court justices signal skepticism toward the administration’s position during recent oral arguments.

The legal scholars aim to demonstrate that there are serious originalist and historical arguments for narrowing birthright citizenship under the 14th Amendment that deserve careful consideration rather than dismissal as fringe political theory.

“That several prominent law professors have come out over the past year, including a few in the past month, in varying degrees of support for the Trump Administration’s birthright citizenship executive order, shows that their position is serious,” said Ilan Wurman, a constitutional law professor at the University of Minnesota. “The Supreme Court cannot simply rely on the conventional wisdom. It will have to show its work.”

Wurman, who submitted an amicus brief to the high court ahead of the April 1 oral arguments, argued that the 14th Amendment never intended to grant automatic citizenship to children of illegal immigrants. He contends that in the 19th century, parents who were residents of a country owed allegiance to that nation in exchange for government protections.

“This exchange of allegiance and protection was often described as a ‘mutual compact,'” Wurman wrote. “Lawful aliens generally fell within the scope of the rule, while foreign soldiers and ambassadors did not. … Illegally present aliens would likely have fallen outside the scope of the rule.”

The group of distinguished legal scholars supporting this interpretation includes Randy Barnett of Georgetown University, Kurt Lash of University of Richmond, Richard Epstein of New York University, Tom Lee of Fordham University, Adrian Vermeule of Harvard University, and Philip Hamburger of Columbia University.

Trump’s executive order, signed early in his administration, would prevent children born to mothers who are illegal immigrants or legal temporary visitors from gaining automatic citizenship. If approved by the Supreme Court, the order could potentially strip citizenship from those deemed ineligible under this new interpretation and fundamentally reshape U.S. immigration policy.

During oral arguments, however, most justices appeared unconvinced by the administration’s position. Chief Justice John Roberts challenged Solicitor General John Sauer on the limited historical exceptions to birthright citizenship, questioning how they could justify such a broad reinterpretation.

“The examples you give to support that strike me as very quirky,” Roberts said. “You know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens. … I’m not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.”

The Trump administration contends that temporary visitors and illegal immigrants are not “subject to the jurisdiction” of the United States – a key phrase in the 14th Amendment that they argue was intended primarily to apply to freed slaves in the post-Civil War era. The administration has also argued that “birth tourism” companies have exploited the current citizenship policy and that it incentivizes illegal immigration.

ACLU lawyer Cecillia Wang, arguing against the executive order, told the Supreme Court that birthright citizenship was enshrined in the 14th Amendment to “put it out of reach of any government official” and that its exceptions were intentionally narrow.

“It excludes only those cloaked with a fiction of extraterritoriality because they are subject to another sovereign’s jurisdiction even when they’re in the United States, a closed set of exceptions to an otherwise universal rule,” Wang said.

The academic support for Trump’s position has been met with sharp criticism. David Bier, an immigration expert at the libertarian CATO Institute, dismissed the professors’ intervention, writing on social media: “The case is a joke. It’s sad that these people are debasing themselves in a losing effort for an ignoble cause.”

With all justices except Clarence Thomas and Samuel Alito appearing poised to reject Trump’s order, the case nonetheless continues to fuel intense debate about constitutional interpretation and immigration policy in America.