Appellate court judges show skepticism of Trump’s birthright citizenship arguments

A federal appellate court is weighing whether to allow President Donald Trump to end the 157-year-old constitutional guarantee that every child born in the country is a U.S. citizen. 

On Wednesday, the Ninth Circuit Court of Appeals heard arguments in a lawsuit launched in January by Arizona, Washington, Illinois and Oregon against the federal government. The Democratic-led states took the federal government to court just a day after Trump issued an executive order that sought to deny citizenship to children born in the country after Feb. 19, 2025 if the child’s parents are not U.S. citizens or lawful permanent residents. A district court judge in Seattle has since temporarily blocked the executive order from going into effect, calling it “blatantly unconstitutional”. 

The Trump administration is hoping to convince the appellate court to reverse that ruling, arguing that the benefits of the Fourteenth Amendment, which grants citizenship to people born on U.S. soil, was never meant to apply to the children of undocumented immigrants. 

White House: birthright citizenship is dependent on the parents’ status

Eric McArthur, a deputy assistant attorney general, defended Trump’s executive order by pointing to the writings and debates of congressmen involved in the crafting of the Fourteenth Amendment that he claimed showed a clear intent to reserve birthright citizenship for people whose parents have a history of living in the country and have some degree of civic rights. 

“The principal purpose of the citizenship clause was to repudiate Dred Scott,” McArthur said, referring to an 1857 U.S. Supreme Court case that concluded African Americans could never be citizens. “To guarantee citizenship for the freed slaves and their children. The question presented here is whether it also extended birthright citizenship as a matter of constitutional right to the children of transient visitors and illegal aliens — a class that did not even exist at the time.” 

Excluding the children of undocumented immigrants from the protections of the Fourteenth Amendment would leave hundreds of thousands of children born in the country every year in legal limbo, and likely at risk of deportation. According to the lawsuit brought by the Democratic states, both parents of as many as 3,400 children born in Arizona in 2022 lacked legal status. 

The Trump administration’s key argument turns on a phrase in the Fourteenth Amendment that has long been interpreted as excluding solely the children of foreign diplomats. It guarantees citizenship to people born or naturalized in the country who are “subject to the jurisdiction” of the United States. That language replaced a similar phrase in a previous iteration, called the Civil Rights Act of 1866, which also explicitly left out the children of Native Americans who were part of tribes that didn’t pay taxes to the U.S. government. Native Americans weren’t granted U.S. citizenship until decades later, in 1924. McArthur argued that Congress could similarly choose to pass laws that protect the access to birthright citizenship for the children of undocumented immigrants. But, he said, for now the shortened phrase clearly implies that the children of people who are citizens of other countries should be denied U.S. citizenship, even if they are born in the United States. 

And for U.S. born children to be eligible for U.S. citizenship, their parents must have lived in the United States long enough to have a “mutual relationship of allegiance on the part of the individual and protection on the part of the government,” McArthur said. They can’t be newly arrived or in the country on a temporary visa. 

“The logic of the argument is: Step one is that ‘subject to the jurisdiction thereof’ means subject to the complete political jurisdiction of the United States, not simply the regulatory jurisdiction where you have a duty to obey U.S. law,” McArthur said. “Then step number two of the argument is that in order for foreigners who are coming from abroad to become subject to the complete political jurisdiction of the United States, they have to be domiciled here.” 

McArthur’s argument that the parents of a child born in the U.S. must be “domiciled” in the country rests on the 1898 United States v. Wong Kim Ark case. That case centered around the U.S. born son of Chinese immigrants, Wong Kim Ark, who was denied reentry into the country following a trip abroad while the Chinese Exclusion Act was in effect. The ruling in the case, which ultimately found that Wong Kim Ark was a U.S. citizen by birth despite his parent’s lack of legal status, noted that his parents had a “permanent domicile” in the country, diminishing any allegiance they may have had to the “Emperor of China”. 

The judges appeared skeptical of McArthur’s claim that parental residency in the country is a prerequisite of birthright citizenship. 

“I’m looking at the language of the citizenship clause. I don’t see any language there, textually, that says they have to be domiciled,” Judge Ronald Gould pointed out. 

McArthur replied that living in the United States is a logical precursor to acquiring a “political jurisdiction” in the country, which the courts have interpreted as separate from a surface-level obedience to the country’s criminal and civil laws known as “regulatory jurisdiction”. Undocumented immigrants, he argued, don’t have that level of allegiance and are not integrated enough into the country to merit the benefits of the Fourteenth Amendment for their children — they lack the quality of being completely “subject to the jurisdiction” of the United States. 

Judge Michael Hawkins questioned whether undocumented immigrants could, under that logic, contest the government’s lack of jurisdiction over them during criminal proceedings. McArthur disagreed, saying everyone must still obey the country’s laws and that the jurisdiction referred to in the Fourteenth Amendment simply sets a higher standard for birthright citizenship to be granted. 

“(Political jurisdiction) is the most encompassing form of jurisdiction that a nation can have over an individual, where you not only have the duty to obey U.S. law while you are present in the country, but it’s the sort of jurisdiction that can get you convicted of treason if you leave the country and go abroad and take up arms against the United States,” he said. “It’s the sort of jurisdiction that, if you are in trouble in a foreign nation, the United States will intervene diplomatically on your behalf to protect you.”

Hawkins pressed McArthur on his interpretation of political jurisdiction, asking whether the children of asylum seekers whose cases have been granted and are effectively being protected from another country would then be considered U.S. citizens at birth, despite their parents’ limited legal status. Trump’s executive order doesn’t address asylum seekers. McArthur said the lawsuit and subsequent court ruling blocking its enforcement prevented the federal government from working that out, or developing any policies that could explain how the order would be implemented. 

Gould and Hawkins seemed unimpressed with McArthur’s reliance on previous court opinions and statements from the authors of the Constitution, grilling him on why they should look beyond the plain text of the amendment, which makes no mention of residency or allegiance. McArthur replied that the language had an underlying significance for the framers that is critical to understanding what the Fourteenth Amendment actually means. 

“The key point here that you need to understand is that jurisdiction, just like allegiance, comes in degrees,” he said. “What the Framers explained, and what the Supreme Court explained, is in the Fourteenth Amendment we are not looking at that lesser form of jurisdiction, we’re looking at a higher more encompassing form of jurisdiction that is the same type of jurisdiction in quality and extent that applies to U.S. citizens.” 

Dem states: 14th amendment has never left children out due to parents’ status

Noah Purcell, the solicitor general for the state of Washington, urged the judges to keep the executive order blocked, warning that lifting the injunction against it would harm the states involved in the lawsuit and fly in the face of nearly two centuries of case law.  

“The Trump administration’s position is that for that entire time, everyone was wrong,” he said.  “If you accept that view, it would also mean that millions of babies born during that time who got the benefit of birthright citizenship never actually should have been treated as citizens. They never should have been allowed to serve on juries, or vote, to hold various government jobs, or receive government benefits. They could have been deported and that would include millions of Americans alive today who have always thought that they were citizens.” 

While the executive order was set to go into effect in February, the district court’s ruling put it on hold indefinitely while litigation continues. The judges appeared split on whether the order could ever be made retroactive, with Hawkins and Judge Patrick Bumatay dismissing the concern and saying that even children born beyond the February deadline are still benefiting from birthright citizenship. But Gould wasn’t so sure. 

“If the government’s position is accepted would that mean that if a mother of a child did not meet the government’s current definition that (her) child — even if they lived in the United States for 40 years thereafter paying taxes, working, making a life here, that they could be deported now?” he asked Purcell. 

Purcell agreed, saying that accepting the federal government’s premise could have retroactive consequences because it overrides how the Fourteenth Amendment has long been understood.  The more looming issue, Purcell said, is the administrative burdens that enforcing the executive order could incur for hospital and government workers who have few systems in place to identify who would qualify for birthright citizenship. 

“You would have to question the parents of every newborn in this country: ‘Do you intend to stay here? What is your allegiance?”

Purcell said it’s also unclear how the children of dual citizens fit into the new understanding. He posited that dual citizenship could be considered “allegiance” to another country.   

Bumatay waved away that concern, saying it was yet another point in favor of the federal government’s argument that the injunction was awarded too prematurely and the White House was never given the opportunity to work out the kinks in the policy change. 

“We don’t know how unworkable it is because they were not given the chance to implement it,” he said. 

Purcell disagreed, saying that the injunction prevents the federal government from enforcing the executive order, not developing policy on how it could be implemented or resolving the problems that the states have raised. 

The judges quizzed Purcell on his response to McArthur’s insistence that the parents of children born in the United States must have both a “domicile” in the country and a political allegiance to it. Purcell said that the courts have never interpreted either requirement as being a part of the guarantee in the Fourteenth Amendment. In the 1982 case of Plyler v. Doe, the U.S. Supreme Court concluded that the immigration status of a child’s parents doesn’t preclude them from enjoying the constitutional protections they are entitled to by being born in the country. 

Even in the Wong Kim Ark case, Purcell pointed out, the justices found that the nonexistent citizenship status of the parents doesn’t impact the right of their child born in the U.S. to be granted citizenship. The Fourteenth Amendment, Purcell said, was never intended to exclude anyone but a limited number of people. The children of Chinese immigrants and Roma people, in fact, were also a source of friction among the framers, but they weren’t among the groups who were written out in the end. 

“The real object of the Fourteenth Amendment in using the phrase ‘subject to the jurisdiction thereof’ was to exclude by the fewest and fittest words possible, the children of Indians and the two classes of cases — the children of invading armies and the children of diplomats,” Purcell said. “To exclude only those cases that had been recognized as exceptions to the fundamental rule of citizenship.” 

U.S. Supreme Court may impact the case’s outcome

The lawsuit from the four Western states isn’t the only one aimed at nullifying Trump’s bid to gut birthright citizenship. Two other legal challenges, including one launched on the same day as the one heard by the appellate court on Wednesday in a two-pronged strategy devised by Democratic elected officials, are also aimed at preserving birthright citizenship. 

The trio of cases were consolidated by the U.S. Supreme Court after the Trump administration petitioned the high court to consider whether to limit the scope of nationwide injunctions. In each case, three separate federal district court judges blocked Trump’s executive order from being implemented anywhere in the country. The country’s highest court held oral arguments in the case last month, but has yet to issue a ruling. If the justices choose to roll back the ability of federal judges to issue decisions that affect the entire country, the Ninth Circuit of Appeals may be forced to limit the injunction or remand the lawsuit brought by the four Western states down to the lower court for reconsideration.