Will Trump v. Barbara End Stare Decisis?

Recall at issue in Trump v. Barbara is President Trump’s Executive Order that purports to deny citizenship to children born in the United States to non-citizen parents who are not permanent residents. The federal district court in New Hampshire preliminarily enjoined the EO, determining that it violates both the Fourteenth Amendment’s Citizenship Clause and 8 U.S.C. § 1401(a)—which essentially parrots the language of the Citizenship Clause. The Supreme Court granted the government’s petition for certiorari, the briefing is coming in, and oral argument is set for April 1, 2026.

The Citizenship Clause reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The government asserts that the Fourteenth Amendment’s language “subject to the jurisdiction thereof” excludes children born to parents who are not permanent residents, because they are not “subject to the jurisdiction” of the United States.

This is a weak argument on its face. The parents are subject to all sorts of regulation—they can be criminally prosecuted, for example. And thus they seem “subject to the jurisdiction” of the United States. To this, the government argues that the term means “allegiance to the nation”—and the non-permanent-resident parents do not have allegiance. That’s an odd argument, because it’s not clear that permanent resident, non-citizen parents have any special “allegiance to the nation.” (As far as I understand, neither the green card application nor the consular interview requires swearing allegiance to the nation.) Moreover, as Professor Dorf noted, the phrase qualifies those who are born—the children. And there is no reason to infer they don’t have allegiance to the nation, or that their allegiance differs from children born to permanent resident non-citizen parents.

The government responds with dubious historical evidence about the meaning of “subject to the jurisdiction thereof.” But the biggest problem for the government’s position is United States v. Wong Kim Ark.

That case, decided in 1898, concerned whether Wong Kim Ark, born in San Francisco to parents who were subjects of the Chinese Empire, was a U.S. citizen. The Supreme Court held in a 6-2 decision authored by Justice Horace Gray that under the Fourteenth Amendment, Wong Kim Ark was a citizen and had acquired such citizenship at birth. The majority held that “subject to the jurisdiction thereof” should be interpreted pursuant to its common-law meaning, which admitted only four narrow exceptions (children born to ambassadors and foreign diplomats, to invading armies, on foreign ships, and to Indian tribes not taxed). None of those applied to Wong Kim Ark; hence, he was a citizen.

Faced with this behemoth of a precedent, the government feebly attempts to distinguish Wong Kim Ark away. Principally, the government argues that the facts of Wong Kim Ark are distinguishable from the Trump EO in that Wong Kim Ark’s parents were “permanent residents,” whereas the EO addresses children born to parents who aren’t permanent residents. That isn’t true: Wong Kim Ark’s parents weren’t “permanent residents,” because permanent resident status didn’t exist in 1898. Wong Kim Ark did note at times that the parents were “domiciles” and “permanent domiciles”—but the opinion’s reasoning did not depend on this fact.

The language of Wong Kim Ark is exceedingly clear on this point:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words 'all persons born in the United States' by the addition 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,—both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country (emphasis added).

Moreover, the majority’s opinion cited approvingly language that explained:

[I]ndependently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.

So the arguments that Wong Kim Ark is inapplicable ring hollow. But why is the government not simply asking the Court to overrule Wong Kim Ark? As we have recently seen, the Trump DOJ and SG are not at all hesitant to do so in other cases.

Without speaking to the actual intentions of the Trump DOJ and SG, it seems like it would be a very difficult argument to make. Even by the (ad hoc) test set forth in Dobbs, the Court could not overrule Wong Kim Ark with any semblance of reason. Recall that Dobbs stated these factors in determining whether to overrule precedent: “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” But here, the rule that children born in the United States are citizens irrespective of their parents’ immigration status is not “egregiously wrong” (how Justice Alito characterized Roe in Dobbs); the rule is plainly “workable” and it has been working for over 125 years; changing it would have extraordinarily disruptive effect; and finally people have greatly relied on the rule to organize their lives. (Notably, scholar Nina Varsava brilliantly observed how much of this was true about Dobbs as well.) If the government did argue that Wong Kim Ark should be overruled, and indeed if the Court did overrule it, it’s not clear what would remain of stare decisis. The whole point of stare decisis is to ‘stand by things decided’ because, even if a judge thinks the decision is incorrect, there needs to be a stability to the law, as we want people to be able to rely on and trust court decisions. It is hard to envision a decision that would be more disruptive and destabilizing than overturning Wong Kim Ark.

Hence the shenanigans of trying to distinguish rather than overrule Wong Kim Ark. As noted, the government’s attempt to distinguish Wong Kim Ark relies on an arcane, narrow reading of the language in the opinion. As explained above, that’s a reason to deny the argument on its own merits. It is simply not the best reading of the case’s holding and reasoning.

But there’s another reason that is important: Such an arcane distinguishing of Wong Kim Ark still implicates stare decisis. To determine whether precedent implicates reliance interests, the critical inquiry is how the relevant audience understands that case, because their understanding of the decision will inform if and how they rely on the decision. The fact that the government (or, God forbid, the Court) can twist the words of Wong Kim Ark enough to open up some logical possibility to uphold the EO does not avoid the damage to stare decisis.

The wealth of the historical and doctrinal evidence suggests that the predominant understanding of Wong Kim Ark is that the citizenship is conferred upon a child’s birth in the United States, with a few narrow, precisely tailored exceptions. Consequently, that is the rule that people rely on; upturning that rule will gravely disrupt people’s lives. If the government wants to distinguish Wong Kim Ark to avoid the disruption of overruling the staple case, it must do more than show we were all wrong to read Wong Kim Ark the way we did. It must show that we in fact did not read Wong Kim Ark that way at all. Short of mass hypnosis, I don’t see how that’s possible.

And so, even if the Court were to accept the Trump administration’s invitation to “distinguish” rather than overrule Wong Kim Ark, it would still leave us with the same existential questions: Is the Supreme Court really going to trash stare decisis? And if so, what does the Court, and indeed, our government, look like in a post-stare decisis world?

--Guha Krishnamurthi