Birthright citizenship has been a topic of intense political debate since the January 2025 inauguration of President Donald Trump, and the April 1 Supreme Court case Trump v. Barbara which ignited fresh discourse around its constitutionality. In interviews with The Cavalier Daily, David Leblang, Ambassador Henry J. Taylor and Mrs. Marion R. Taylor endowed professor of Politics, and Law Prof. Amanda Frost discussed public opinion on birthright citizenship, implications of the Trump administration’s political rhetoric around immigration, the citizenship clause of the 14th Amendment and the significance of birthright citizenship to American culture.
In Trump v. Barbara, the American Civil Liberties Union is suing the Trump administration to challenge the constitutionality of a Jan. 20, 2025 executive order titled “Protecting the Meaning and Value of American Citizenship.” The order seeks to limit birthright citizenship to those born in the United States who have at least one parent with permanent residential status.
Oral arguments for Trump v. Barbara were heard by the Supreme Court April 1, and a decision is currently pending. The case has been controversial among legal experts — with some claiming that the Trump administration’s argument that the 14th Amendment does not give automatic citizenship to every baby born on U.S. soil fundamentally misinterprets the intent of the Citizenship Clause of the 14th Amendment. Alternatively, some claim that his interpretation, while novel, is reasonable.
According to Frost, the Trump administration’s case rests on the Citizenship Clause in the amendment which states “all persons born or naturalized to the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The amendment was initially ratified in 1868 to overturn the Dred Scott v. Sandford decision, which excluded Black people in the U.S. from full citizenship.
Frost, who testified to Congress Feb. 25, 2025 on the constitutionality of birthright citizenship, explained that the executive order challenges the traditional interpretation of the Citizenship Clause of the 14th Amendment. She said the administration argues that “subject to the jurisdiction thereof” does not apply to the children of undocumented or temporary immigrants, a group that has been considered by legal experts to receive birthright citizenship under the clause for decades.
Frost pointed out that the new interpretation would exclude the children of immigrants residing in the United States with H-1B, or skilled worker, visas. Notably, according to the Virginia Center for Investigative Journalism, as of Oct. 2, the University employs the largest number of H-1B visa holders of any higher education institution in Virginia, at 180.
“[The government says the Citizenship Clause] excludes children of undocumented immigrants and temporary immigrants ... because those people lack allegiance to the United States, because they are not domiciled, meaning permanently, intending to stay,” Frost said.
According to Frost, an old interpretation of “subject to the jurisdiction thereof” was used to exclude several “narrow” groups residing in the U.S., such as the children of diplomats, the children of invading armies and historically, Native Americans — an interpretation that was later changed.
Taking American opinion into account, polling data taken April 7-13, 2025, from the Pew Research Center shows 94 percent of Americans support citizenship for the children of parents who legally immigrated to the U.S. This includes the children of parents with temporary residential status — a group the Trump administration’s new interpretation would remove birthright citizenship from.
Another Pew poll taken Jan. 27 through Feb. 2, 2025, shows that 56 percent of Americans disapprove of the changes the executive order would make, while 43 percent approve of the order. Similarly divided are Americans' views on birthright citizenship for the children of undocumented immigrants, with 50 percent signaling their approval, and 49 percent, their disapproval in a Pew poll.
Virginia Attorney General Jay Jones (D) indicated his disapproval of the executive order, signing a joint amicus brief Feb. 26 with several other attorneys general which defended birthright citizenship in response to Trump v. Barbara. Jones also issued a statement in which he articulated his belief for the importance of continuing the current interpretation of birthright citizenship.
“Birthright citizenship is a core constitutional right, and a cornerstone of American democracy. President Trump’s executive order is in direct violation of our Constitution, and I am proud to stand with Attorneys General from across the nation to fight back and protect our citizens,” Jones wrote.
Leblang echoed Jones' sentiment about the importance of birthright citizenship to the United States’ political structure, specifically saying that it prevents a “hereditary underclass” — which he explained as a group of people residing and working in the U.S., but lacking the constitutional right to vote. He also emphasized the importance of birthright citizenship to the cultural identity of the country. Leblang said that existing as a “hereditary underclass” was the reality for formerly enslaved people who were emancipated before full voting rights were established.
“[That is] what the American ideal is about — that everybody can become a citizen,” Leblang said. “That [was] fundamentally the normative, philosophical basis for the [14th] Amendment when it was passed,” Leblang said.
Frost expressed a similar belief in the role of birthright citizenship in contributing to the egalitarian culture of the United States.
“[Birthright citizenship] is uniquely American in ways that are related to the strengths of our country. We're a nation of immigrants,” Frost said. “We are a nation that wanted to eliminate caste and restore equality in the wake of the Civil War and the end of slavery, and when the Reconstruction Congress debated adding birthright citizenship to the U.S. Constitution, it mentioned both points.”
Leblang said that, while immigration reform has been a political issue since the country’s founding, changing the interpretation of birthright citizenship was never much debated among politicians. Besides a few exceptions, immigration reform has not been a large part of a presidential candidate’s political platform until Trump’s campaign in 2016, according to Leblang.
“It's all part of what has been really masterful politics by the Trump administration … a politics of … division, or you could call it … a zero sum politics, which is, if somebody gets something, then there's less available for someone else,” Leblang said. “It's great rhetoric, because it sets up ‘us versus them,’ and it attracts a base.”
Within the framing of the “us versus them” debate, there are arguments from politicians that immigrants are taking jobs, government benefits and committing voter fraud, according to Leblang. He also suggested that the political rhetoric constructing immigrants as antagonists is a tactic to “scare” people into voting for certain candidates.
An issue that frequently arises in anti-birthright citizenship arguments is that of “birth tourism,” or the practice of a person coming to the U.S. with the express intention of giving birth so that their child can have American citizenship, Frost said. Frost and Leblang both said they believe instances of birth tourism occurring are low, with Frost estimating two percent of annual births nationally fall into this category.
Frost said that a child being born in the United States does not guarantee or fast-track the citizenship process for that child’s parents. Frost also explained how this claim of “birth tourism” posing a significant issue counters the common anti-birthright citizenship argument that parents without American citizenship could abuse the birthright citizenship laws in the U.S. by having a baby in the U.S. to ensure citizenship for themselves.
Frost agreed with Leblang’s assessment that the administration is pursuing immigration as a tool of political rhetoric, and said that Trump v. Barbara is an attempt to appeal to Trump’s supporters. She additionally stated her belief that by challenging the interpretation of birthright citizenship, the administration is attempting to send a signal about American cultural identity.
“I think the Trump administration … wants to redefine what it means to be an American, and it involves lineage and not location of birth … you must have the correct ancestry,” Frost said.
Frost stated that, based on the strength of the oral arguments made to the Supreme Court and her belief that the justices were largely skeptical of the government’s argument, the Trump administration will lose Trump v. Barbara. She said she believes the administration always thought they would lose the case, but saw it as an opportunity for political gain.
“They win either way. If they lose this case, they win by showing their [base of political and voting support] they were fighting hard to keep people that the base thinks are not true Americans from getting citizenship … and if they win, then of course they win,” Frost said.
Frost said she believes the Trump administration may even be hoping that they lose, due to the administrative hassle that would ensue should the interpretation of birthright citizenship actually change. Frost explained that, if the change were to be universally applied, many families may struggle to prove their ancestors’ legal status, as the definition of legal residence has changed considerably over time.
Leblang agreed, predicting that there would be large bureaucratic complications if the government wins the case.
“I could imagine a world where … this goes into effect … and now you're really going to have to go to the hospitals and … determine what the status of that mother is on the birth record,” Leblang said. “There's got to be some way of enforcing whether or not that child is a citizen of the United States, so I think administratively, you're adding enormous bureaucratic complications.”
If the government loses Trump v. Barbara, Frost said she believes they will not pursue the issue further in the Supreme Court in the near future. A decision for the case is expected by the end of the Court’s term — Oct. 4.
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