To start at the start: in January 2025, Executive Order No. 14160 (Birthright Citizenship Executive Order.) declared that many children born in the United States to undocumented (and certain temporary-status) parents would not receive automatic U.S. citizenship. Many suits were filed including by CASA de Maryland (CASA), a membership-based immigrant advocacy organization founded in 1985 and headquartered in Maryland and with partners and operations regionally and nationally.
CASA argued the order violated the Fourteenth Amendment, United States v. Wong Kim Ark (1898), and the Immigration and Nationality Act. In mid 2025, when offered the chance, the Supreme Court did not decide on the executive order. This substantive issue remained for the lower courts, which have uniformly blocked the executive order.
The case now before the Court is Trump v. CASA. The issue: does “subject to the jurisdiction thereof” of the 14th amendment allow the federal government to exclude children of unauthorized or temporarily present noncitizens from birthright citizenship? Formally stated, the issue: Whether Executive Order No. 14160 complies on its face with the citizenship clause of the 14th Amendment and with 8 U.S.C. § 1401(a), which codifies that clause.
I want to address here a leading argument of the government. It says that children born of two unauthorized persons are not “subject to” the laws of the U.S, per the 14th amendment because they do not have “allegiance” to the U.S. On this view, children of unauthorized migrants lack full allegiance because their parents were not lawfully admitted, while children of lawful immigrants inherit sufficient allegiance through recognized status.
In United States v. Wong Kim Ark (1898) the Court held that birth on U.S. soil confers citizenship except for narrow, settled exceptions (e.g., diplomats, native Americans, invading forces). “Jurisdiction” meant being subject to U.S. law. It made no carve out for any type of immigrant and did not mention political allegiance. There is no post–Wong Kim Ark precedent at any federal court on an allegiance requirement. The modern allegiance argument is largely a reinterpretation.