Trump Calls Roberts's Bluff With New Executive Order On Birthright Citizenship
What will Justice Barrett do?
I am, slowly but surely, making my way through the end of the October 2025 term. I've already published my take on Wolford and Hemani. I've recently completed my essay on Slaughter and Cook, which should appear in Law & Liberty next week. I've written an piece on Mullin v. Doe and Mullin v. Al Otra Lado, which should appear thereafter. Randy Barnett and I wrote an essay on Landor, which was the sleeper case of the year. SCOTUSBlog is also publishing my series of essays on Court reform. (So far, they have built some consensus; future installments may not.)
So far, at least, I have not yet published anything on Trump v. Barbara. That isn't due to a lack of thoughts. I have a lot. Indeed, Randy and I spent much of July figuring out how to present the case in the Fifth Edition of our casebook, which should be available for adoption in December 2026.
Barbara may be one of the most important decisions the Supreme Court has ever issued. Ultimately, I agree with Justice Thomas that the Chief Justice's ruling is not one for the ages. I am already dreading having to teach the case. A question I often ask is "State the holding of the case in one sentence." Try it. What is Roberts's rule of order? What is the standard of citizenship of a person born on U.S. soil? It's harder than it may seem. Your answer, whatever it is, should discuss "extraterritorial fiction." I assure you, read through the debates in the Congressional Globe, and you will not find a reference to "extraterritorial fiction." This line may be of of the most slippery blue plate specials that the Chief Justice has ever served.
In the Chief's mind, failing to issue a clear rule is the best rule of all. But surely the Chief anticipated how Trump would respond to this decision. Justice Kavanaugh surely understood that the President would not surrender.
The President has signed a new executive order on birthright citizenship. The order offers this account of what Trump v. Barbara held, and what room remains to deny citizenship to the children of certain aliens:
On June 30, 2026, the Supreme Court decided in Trump v. Barbara, 609 U.S. ___, 146 S. Ct. 2438, 2449 (2026), that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States "for whom no extraterritorial fiction applie[s]." This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.
Did Trump v. Barbara provide a "closed set" of exemptions to the rule in Calvin's Case or was the list "exhaustive"? I don't think the majority settled this issue, so the roster is "non-exhaustive."
The order explains that the child of an alien enemy is not a citizen at birth. I welcome a lawsuit from the ACLU demanding citizenship for the children of members of Foreign Terrorist Organizations.
The order also excludes the child of a parent engaged in birth tourism. I think the argument here is that there is an "extraterritorial fiction" for this group, as the birth is the product of "fraudulent activity."
The order further provides that citizenship is denied to a "person . . . born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute." I am not certain if there are any such jurisdictions where citizenship is conferred by executive order and not statute. But here is a test to the Insular Cases.
What will the Chief do? What will Justice Barrett do?
Stay tuned.