Law professors argue Trump’s birthright citizenship order is defensible

A group of at least seven law professors has launched a campaign to challenge the longstanding interpretation of birthright citizenship, defending President Donald Trump’s effort to narrow the constitutional provision even as Supreme Court justices have expressed skepticism.

The legal experts’ arguments aim to convince the Supreme Court and opponents of Trump’s efforts that there are serious original and historical arguments for narrowing birthright citizenship under the 14th Amendment that deserve consideration rather than being dismissed as a fringe political theory.

Ilan Wurman, a law professor at the University of Minnesota, told Fox News Digital that the latest wave of support is intended to reinforce the point that birthright citizenship is not a settled issue, despite institutional consensus on it.

“The fact that several prominent law professors have emerged over the past month to offer varying degrees of support for the Trump Administration’s birthright citizenship executive order indicates that their positions are serious,” Wurman said. “The Supreme Court cannot rely solely on conventional wisdom. It will have to show its work.”

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Wurman, an expert in constitutional law, was one of dozens of people who weighed in on the case by filing amicus briefs with the high court ahead of oral arguments April 1 on birthright citizenship, which grants automatic citizenship to most babies born on U.S. soil under the 14th Amendment.

He argued in part that the amendment was never intended to grant citizenship to the babies of illegal immigrants, saying that in the 19th century, parents residing in a country owed allegiance to that country in exchange for government protection.

“This exchange of allegiance and protection has often been described as ‘mutual agreement,'” Wurman wrote. “While legal aliens generally fell within the scope of the rule, foreign soldiers and ambassadors were excluded. … Illegally present aliens would likely fall outside the scope of the rule.”

other law professors They include Randy Barnett of Georgetown University, Kurt Lash of the University of Richmond, Richard Epstein of New York University, Tom Lee of Fordham University, Adrian Vermeule of Harvard University, and most recently Philip Hamburger of Columbia University; each of these argued, to varying degrees, that Trump’s birthright citizenship order was constitutionally defensible.

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President Donald Trump holds a signed executive order on artificial intelligence in the Oval Office of the White House in Washington on January 23, 2025. Trump said he will participate in arguments Wednesday before the U.S. Supreme Court on a case centered around birthright citizenship. (REUTERS/Kevin Lamarque)

The executive order, which Trump signed shortly after taking office, will prevent children born to mothers who are illegal immigrants or legal temporary visitors from automatically gaining citizenship. Although all the justices except Justices Clarence Thomas and Samuel Alito appeared ready to reverse Trump’s decision, the case still invited polarizing debate. If approved by the Supreme Court, the law, under Trump’s new interpretation, could strip citizenship from ineligible people and drastically change immigration policy.

The Trump administration has argued that temporary visitors and illegal immigrants are not “subject to the jurisdiction” of the United States and that the language in the amendment is intended to apply to slaves freed during the Civil War era. The administration argued that birth tourism companies were operating illegally. exploited generous citizenship policy and also encourages illegal immigration.

Chief Justice John Roberts challenged Attorney General John Sauer during oral arguments about minor exceptions in the 14th Amendment, such as children born to foreign diplomats, saying they were not comparable to a broad category of illegal immigrants.

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U.S. Supreme Court Chief Justice John Roberts attends the inauguration ceremonies in the U.S. Capitol Rotunda on January 20, 2025 in Washington, DC. chip (via Somodevilla/Pool REUTERS/File Photo)

“The examples you give in support are very interesting to me,” Roberts said. “You know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand that to a whole class of illegal aliens. … I’m not quite sure how you can get to this large group from such small and idiosyncratic samples.”

An American Civil Liberties Union attorney who opposed the order told the Supreme Court that the policy was designed to keep “out of reach of any government authority” the 14th Amendment and that its exceptions were deliberately narrow.

ACLU attorney Cecillia Wang said, “This only excludes those disguised by the fiction of extraterrestriality because they are subject to the jurisdiction of another sovereign, even if they are in the United States, a closed set of exceptions to an otherwise universal rule.” he said.

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Wurman noted that professors who supported Trump’s executive order were met with “swift and harsh” reactions. David Bier, an immigration expert at the libertarian CATO Institute, said the opposition bloc was not serious.

“Oh SEVEN!? This is remarkable, considering you have to align yourself with the president to qualify as a judge or appointee,” Bier said. wrote to x. “The lawsuit is a joke. It’s sad that these people disgraced themselves in a losing effort for a vile cause.”