As Americans vote in this week's midterm elections, one question appears on no ballot yet hangs over the next Congress: who is born American? Four months ago, in the Supreme Court's judgment in Trump v. Barbara, the US Supreme Court struck down President Trump's executive order limiting birthright citizenship. The fight has since moved to Capitol Hill.
At its heart sit five words from the Fourteenth Amendment: "subject to the jurisdiction thereof". This article examines what that phrase means, where its meaning comes from, and why it matters that the meaning stays put.
The story
On 20 January 2025, the President signed Executive Order 14160. It told federal agencies to stop recognising as citizens children born in the US whose mothers were unlawfully or only temporarily present, and whose fathers were neither citizens nor lawful permanent residents. As Vialto Partners' summary of the ruling explains, the order rested on one claim: such children are not "subject to the jurisdiction" of the United States.
On 30 June 2026 the Court disagreed. Chief Justice John Roberts wrote for a majority of five, joined by Justices Sotomayor, Kagan, Barrett and Jackson. Justice Kavanaugh agreed the order was unlawful, but for a different reason. That is why reports describe the ruling as both 6 to 3 and 5 to 4. Both are right: six votes against the order, five for the constitutional reasoning. Justices Thomas, Alito and Gorsuch dissented.
The definition
The Fourteenth Amendment's Citizenship Clause reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Its roots lie in the English common law rule of jus soli (Latin for "right of the soil"): you belong to the country you are born in, whoever your parents are.
The Reconstruction Congress wrote that rule into the Constitution in 1868, partly to overturn Dred Scott v. Sandford (1857), which had denied that Black Americans could be citizens. Thirty years later, in United States v. Wong Kim Ark, the Court held that a man born in San Francisco to Chinese parents was a citizen. On that reading, "jurisdiction" means being subject to US law, a test nearly everyone on American soil passes. The exceptions were narrow: chiefly the children of foreign diplomats and of hostile occupying forces. Congress later repeated the same words in 8 U.S.C. § 1401(a), the statute governing citizenship at birth.
The Barbara majority followed that line. Children of unlawfully or temporarily present parents, it held, are "thus subject to the jurisdiction of the United States."
The shift and the debate
The government argued that "jurisdiction" means something deeper than obeying the law: a political allegiance, or a settled home, that people with only temporary ties lack. According to the Congressional Research Service's analysis, the dissenters gave that idea real weight. Justice Thomas, joined by Justice Gorsuch, tied jurisdiction to domicile, meaning a person's permanent home. Justice Alito read it as requiring allegiance to the United States alone. On their view, the clause was never meant to cover families with only passing connections to the country.
Justice Kavanaugh took a third path. "In my view, the Executive Order does not violate the Fourteenth Amendment," he wrote. It does, however, breach § 1401(a), and he wrote that Congress could legislate exceptions. The CRS notes two routes from here: amend the statute, or pursue a constitutional amendment, which needs two-thirds of both chambers and three-quarters of the states.
Hence the midterm stakes. Senator Eric Schmitt said the ruling "MAY have left Congress a door", Axios reported, while Senator Mike Lee called for a constitutional amendment. On the majority's reasoning, though, the Constitution itself fixes the definition, so an ordinary statute could not narrow it.
The executive has also tried again. Executive Order 14418, signed on 6 August, targets narrower groups, including children of "alien enemies" and of parents involved in birth tourism. US District Judge Deborah Boardman blocked it for the families covered by the case. "Barbara is the law of the land. The President must follow it," she wrote.
Why a fixed definition matters
Whatever one thinks about immigration policy, the integrity question is separate. A citizenship rule is only as secure as the definition underneath it. If "subject to the jurisdiction thereof" can be redrawn by executive order, citizenship becomes provisional: something a child holds until the next administration reads five words differently.
The Court has now given those words a clear answer, rooted in text, history and 128 years of precedent. That does not end democratic debate. The Constitution can be changed, through the demanding process it sets out for itself. But change should come openly, through that process, not by quietly redefining a term. That is the real choice the next Congress inherits.