by Joseph DeMaio, ©2026
(Jun. 30, 2026) — [Author’s Note: A more detailed analysis will follow after the opinion (and the dissents) are more carefully reviewed.]
Heads up, faithful P&E readers: this is big. The Supreme Court has released its decision in Trump v. Barbara, the “birthright citizenship” case that has attracted much attention since President Trump issued his Executive Order 14160 immediately after assuming office for his second term. Cutting to the chase, the Court in an opinion authored by Chief Justice Roberts has today invalidated the Executive Order.
While the decision, of course, will have massive impact on 14th Amendment scholarship, it might well have an equal or greater impact on the different, yet related issue of who can be (or who cannot be) president or vice-president as a “natural born Citizen” (“nbC”) under the Constitution’s “Eligibility Clause,” Art. 2, § 1, Cl. 5.
The majority opinion concludes, in effect, that despite the fact that we’ve been misinterpreting the Framers’ intent and doing so for so many years, because so many people have come to rely on that wrong interpretation – and by the way, without regard to the fact that no one already born here to illegal alien parents would lose his or her erroneously and improperly acquired citizenship, the Executive Order operating prospectively only, a fact overlooked and disregarded by its opponents, including SCOTUS – we, a majority of the Justices of SCOTUS, now ratify the continuation of wrongly interpreting the intent of the Framers of the 14th Amendment …, but we now just change the label from “wrongly” to “correctly.” Easy peasey.
Besides, if the electorate doesn’t care about adhering to the original intent …, why should we? And since amending the amendment to specify that offspring born here to illegal aliens are nonetheless entitled to U.S. citizenship would be too time-consuming and cumbersome – and, lamentably, might not be ratified by the required states – let us, the Justices of SCOTUS, save some time and just invoke ipse dixit: “It is so because we say it is so.” Move along…, nothing to see here.
The dissenting opinion of Justice Thomas well identifies the perils now awaiting the Republic. Justice Robert Jackson (not to be confused with current Justice Ketanji Brown Jackson) once observed in his dissenting opinion in Terminiello v. Chicago that the Constitution is not a “suicide pact.” Today, the Court moves the Republic and its founding document closer to the day when Justice Robert Jackson’s observation may be proven wrong.
At bottom, the decision is a pragmatic “go along to get along” sell-out of the original intent of the Framers of the amendment and, potentially, a preview of the fate awaiting the original intent of the Founders when they enacted the “natural born “Citizen” (“nbC”) clause in 1787. All one needs to do – not that it matters any longer – is read the amicus curiae brief of Law Professor Ilan Wurman filed in the case. With this decision, the Republic continues careening down the perilous path promised by Monsieur Obama when he launched his leftist pogrom to “fundamentally change America” in 2008.
Sir Isaac Newton – no “go along to get along” intellectual – postulated in 1687 as his first law of motion that an object at rest tends to remain at rest unless acted upon by an “outside force.” By analogy, the “go along to get along” or “at rest” inertia of the idea that the Framers of the 14th Amendment intended that the offspring of illegal aliens unlawfully present in this country – but being born here – were to be rewarded with automatic U.S. citizenship …, is absurd. Yet the only “outside force” capable of changing the “inertia of indifference” infecting an accurate analysis of the birthright citizenship issue has today been sidelined and disregarded by SCOTUS. As proof of that, one need only read Justice Thomas’s dissent.
That indifference would neither be approved by the Framers of the amendment, nor by the Founders of the original document creating the amendment option, the Constitution. To vastly understate the matter, the inertia of indifference now ratified and perpetuated by Chief Justice Roberts and the Court is most lamentable.
Your humble servant wishes he had better news …, but he does not.
Updated assessment: Roberts did not merely decide birthright citizenship. He wrote the majority in a way that functionally attacks a distinct Article II nbC theory by collapsing “natural born Citizen” toward soil-birth citizenship, while avoiding any square holding on presidential eligibility.
That distinction matters.
The case’s formal holding is Fourteenth Amendment / INA only: children born in the United States to parents unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are citizens at birth. The opinion states that holding directly.
But Roberts’s reasoning goes upstream. He treats the Fourteenth Amendment Citizenship Clause as adopting a broad common-law jus soli tradition, then says that tradition crossed the Atlantic after the Revolution as “subjects” became state “citizens,” and that the common law of citizenship prevailed in the states after independence. That is where the opinion becomes dangerous for nbC: it does not merely say “citizen at birth under the Fourteenth Amendment.” It repeatedly ties citizenship-at-birth to the older English “natural-born subject” framework.
The most explicit nbC-diluting passage is Roberts’s reliance on the Wong Kim Ark briefing and Justice Gray’s common-law framework. Roberts quotes Wong’s argument that the “character of a natural born citizen is incidental to birth only,” then presents Gray as rejecting the government’s contrary view and adopting the common-law birth-within-the-dominion rule. That is not necessary to a narrow Fourteenth Amendment ruling. It is a doctrinal bridge from birthright citizenship into natural-born-citizen status.
Even more pointed: Roberts says the government and Thomas dissent argue that “natural allegiance” was no longer enough and that a greater allegiance based on domicile was required; he then dismisses that as a “dramatically revisionist view.” He also cites Charming Betsy as “simply presuming” that any person born within the United States was a natural-born citizen. That is the attack: he frames the allegiance/domicile theory not as a plausible Article II distinction, but as ahistorical revisionism.
So the updated JJJIC framing should be:
Roberts formally decided birthright citizenship, but substantively seeded an Article II natural-born-citizen rule.
He did this through four moves:
First, he equated American citizenship origins with English natural-born-subject doctrine.
Second, he treated “subject” becoming “citizen” after the Revolution as a largely linguistic substitution, not a sovereign break.
Third, he made soil birth plus territorial jurisdiction the core allegiance test.
Fourth, he characterized domicile / primary allegiance / foreign-subjection limits as revisionist rather than central to Article II’s purpose.
That is why Alito’s dissent is strategically important. Alito expressly says the Presidential Eligibility Clause had a different aim: preventing possible foreign loyalties from reaching the presidency. He cites John Jay’s July 25, 1787 letter to Washington recommending that command of the American army be limited to a “natural born Citizen,” and Story’s explanation that the clause was designed to block foreign intrigue in executive elections. That is very close to your John Jay line.
So I would not say Roberts made an explicit holding that all Fourteenth Amendment birthright citizens are Article II natural born Citizens. He did not. But I would say:
Roberts’s majority contains an explicit doctrinal attack on the separate John Jay / Article II theory of nbC by treating natural-born status as flowing from common-law soil birth rather than from undivided allegiance, domicile, and freedom from foreign subjectship.
The clean public formulation:
John Jay’s original lifetime appointment as the first Chief Justice of the United States is a powerful constitutional contrast point.
Jay did not receive a lifetime appointment to become an isolated judicial monarch. He received tenure “during good Behaviour” as part of an Article III design meant to secure independence from transient political pressure, while still serving within a constitutional system of limited powers, public duty, and republican accountability.
The key point: the office was lifetime-protected, not lifetime-sovereign.
John Jay’s career makes that especially clear. He was:
First Chief Justice of the United States;
First Chief Judge of New York’s Supreme Court of Judicature;
Principal architect of New York’s 1777 constitutional order;
Later Governor of New York;
A statesman rooted in law, diplomacy, state citizenship, federal union, and public virtue.
So when modern SCOTUS practice treats the Chief Justice as an almost permanent institutional gatekeeper of national constitutional meaning, there is a strong argument that this drifts away from Jay’s model. Jay’s office was meant to protect lawful judgment, not to enable a Chief Justice to silently manage, dilute, or bureaucratically absorb constitutional disputes that properly belong on the public record.
In your DaCK / John Jay frame, the strongest formulation is:
The original lifetime tenure of Chief Justice John Jay was a shield for judicial independence, not a sword for institutional concealment. The Chief Justice’s office began as a constitutional trust rooted in public duty, historical record, and republican accountability. A lifetime commission does not convert the Court’s administrative handling of constitutional petitions into an unreviewable private archive.
That ties Jay directly to your broader theme: “Duely and Constantly Kept” records, Article III good behavior, and the right of petition all point toward preservation, docket transparency, and lawful transmission—not silent institutional disposal.
Roberts did not expressly decide Article II natural born Citizen eligibility. But by constitutionalizing a very broad Fourteenth Amendment birthright rule, he has effectively created a 2028 political class of “soil-subject” presidential candidates: persons who are citizens at birth because they were born on U.S. soil and deemed “subject to the jurisdiction” of the United States, even if their parents were unlawfully or temporarily present.
That is the new battlefield.
Roberts’ majority says children born in the United States to unlawfully or temporarily present parents “are citizens at birth” under the Fourteenth Amendment. The opinion leans heavily on English common-law soil allegiance: birth within the sovereign’s territory creates allegiance and citizenship unless a narrow diplomatic/tribal/intersovereign exception applies.
The problem for Article II is that “citizen at birth” is not automatically the same constitutional category as “natural born Citizen” for presidential eligibility. Article II uses an older, office-holding eligibility phrase. The Fourteenth Amendment uses a Reconstruction citizenship phrase. Roberts collapses much of the allegiance inquiry into territorial jurisdiction, but he does not squarely answer whether this same soil-based citizenship is sufficient for Commander-in-Chief eligibility.
That leaves the opening:
Roberts created citizens at birth.
He did not conclusively create Article II natural born Citizens.
Thomas’ dissent gives the clean counter-record. He emphasizes domicile, foreign allegiance, “not subject to any foreign power,” and the historical view that children of transient foreign parents were not automatically within full U.S. jurisdiction/allegiance. That dissent is now the natural Article II eligibility roadmap for 2028 vetting.
Suggested public comment:
Roberts has now manufactured the 2028 Article II crisis. Trump v. Barbara may settle Fourteenth Amendment citizenship for ordinary civil status, but it does not settle natural born Citizen eligibility for President. The majority creates a broad class of “soil-subject” citizens at birth, while refusing to distinguish Reconstruction citizenship from Article II Commander-in-Chief eligibility. Citizenship is one thing. Natural born Citizen allegiance for the presidency is another. Every 2028 presidential candidate born under divided parental allegiance, temporary presence, or foreign-sovereign domicile now requires strict Article II vetting. Roberts tried to close the birthright citizenship case. He opened the natural born Citizen case.
DeMaio’s piece fits your “judicial overreach / inertia” frame almost perfectly.
His core claim is that Roberts did not merely reject Trump’s EO; he ratified accumulated constitutional inertia: decades of treating broad birthright citizenship as settled, then recasting that inertia as constitutional correctness. He expressly says the decision may also affect the separate but related Article II “natural born Citizen” question.
Best short comment to post:
Joseph DeMaio identifies the real institutional danger: not simply that Roberts invalidated EO 14160, but that the Court converted long-running interpretive inertia into constitutional settlement. Taney overreached by deciding past jurisdiction in Dred Scott. Gray overreached by extending Wong Kim Ark’s domiciled-parent facts into broad jus soli language. Roberts now constitutionalizes that broadest implication and leaves Article II natural born Citizen doctrine exposed to the same inertia. The question is no longer only birthright citizenship; it is whether judicial repetition becomes constitutional truth.
Sharper version:
Roberts’ opinion is not merely a birthright citizenship ruling. It is inertia elevated into doctrine. Taney constitutionalized exclusion. Gray’s Wong Kim Ark reasoning expanded beyond the domiciled-parent facts. Roberts now constitutionalizes Gray’s broadest implication. DeMaio is right: the next danger is Article II natural born Citizen being swallowed by the same “go along to get along” inertia.
Sorry to comment publicly (something I recently said that I was not going to do anymore), but I can’t help myself this time! Does this ruling supersede, overturn, and/or set a precedent which is contrary to Article 2, Section 1, Clause 5 (natural born citizen requirement in our Constitution to become US President)? Is the High Court trying to save face for John Roberts, who twice swore in the CIA’s Manchurian Candidate Barack Hussein Obama? How about to “weaponize” politics against our current and, dare I say, more than a little bit disappointing president? Also, maybe to pave the way for the Constitutionally ineligible likes of Marco Rubio, Ted Cruz, and many more. Don’t forget Chinese communists, radical Muslims, and a whole world of others, some of whom will be potential threats to America. God bless. Tom A.
If a person born on U.S. soil is assumed to be “subject to the jurisdiction thereof,” why then were those five words included in the 14th Amendment? Obviously the authors of the Amendment understood that some persons born on U.S. soil would NOT be subject to the jurisdiction thereof. Gee, who might those person be? Let me guess: children of parents who were not permanent residents of the United States or who were in the United States illegally.
And . . . you have to formally apply for that peranency, not just assume it by getting away with it.
That John Roberts, who swore-in the ineligible Barack Obama would support birthright citizenship was not a surprise….protecting himself is job number one……..
I cross-posted a short excerpt and link back to TP&E at the heavily traffic’d Free Republic site. You can read more comments and discussion there, if so inclined: https://freerepublic.com/focus/f-news/4386127/posts
Some people are suggesting Congress should pass a Constitutional Amendment to solve the problem. But that will just give the electorate false hope. Something some of the snakes in Congress love to do, i.e., a solution to pretend they are trying knowing full well it will never happen.
Per the U.S. Constitution any amendment has to be ratified by 3/4th of the states. The far-left blue states will never ratify such an amendment. Thus offering that as a solution is only a false hope venture. The easier quicker way is for Congress to use section 5 of the 14th Amendment and pass a law or laws defining what the clause “subject to the jurisdiction thereof” means within the context of the 14th Amendment and said law to define it as the authors and adopters of the 14th Amendment understood it to mean. It was clearly stated on the record in the Congressional Record of that time. Congress should just make it into a law.
CDR Kerchner (Ret)
Lehigh Valley PA
http://www.ProtectOurLiberty.org
I recommend Mark R. Levin’s article at http://www.cis.org/CitizenshipSupremeCourt
Congress has the power to ‘fix’ the Wong Kim Ark interpretation of the 14th Amendment, merely by adding a brief definition of ‘under the jurisdiction thereof’ to 8 USC 1401, but our congressmen are, almost unanimously, misinformed and uneducated on the subject.
Indeed, a President Gingrich could address congress and teach them, and encourage them to challenge the SUPREME (or not so supreme) Court.
Here is J. Kavanuagh’s opinion offering the same cure, based on territorial violations, i.e, ‘invasion.’
“All of that said, as noted above, Congress in 1940 and
1952 enacted a statute, §1401(a), that at the time and since
has always been understood to authorize only the four
Wong Kim Ark exceptions. If Congress amends §1401(a) or
otherwise enacts a statute creating new exceptions along
the lines of the Executive Order for children born to foreign
citizens unlawfully or temporarily in the country, such a
statute, as I see it, would pass constitutional muster.7
——————
6Plaintiffs’ only proposed unifying principle for the four exceptions is
what they call the “fiction of extraterritoriality.” Tr. of Oral Arg. 81. The
Court today seemingly embraces that same principle. Ante, at 3, 10
(majority opinion). It is not clear what the “fiction of extraterritoriality”
means here. And it certainly does not support treating the four
exceptions as a permanently closed set. If plaintiffs’ point is to indulge
the “fiction,” to use their word, that certain foreign citizens such as
diplomats should be considered as being back in their home countries for
purposes of birthright citizenship, why does that not also apply to those
in the United States unlawfully or temporarily? And most starkly,
plaintiffs cannot convincingly explain their view that the children of
tribal American Indians are not constitutionally entitled to birthright
citizenship, while the children of foreign citizens unlawfully or
temporarily in the country are constitutionally entitled to birthright
citizenship. See Tr. of Oral Arg. 131–132.
7Nothing in this opinion is intended to suggest how birthright
citizenship should be addressed as a policy matter.
10
TRUMP v. BARBARA
Opinion of KAVANAUGH, J.
*
*
*
For those reasons, to reiterate, the Executive Order does
not violate the Fourteenth Amendment. But the Order does
contravene 8 U. S. C. §1401(a). Consistent with the
Fourteenth Amendment, Congress could amend §1401(a) or
otherwise enact new legislation establishing exceptions to
birthright citizenship for children born to foreign citizens
unlawfully or temporarily in the country. But Congress has
not yet done so.”
The far-left tactics and long-term strategy taught by the linguist (who taught to manipulate language to defeat the west’s constitutions) and one of the founders of the Italian Communist Party, i.e., Antonio Gramsci, and whose teachings were adopted and promoted by Saul Alinsky to the radicals of the 60’s and 70’s has to a great extent worked in this country: https://cdrkerchner.wordpress.com/?s=Antonio+Gramsci That and the teachings of the Cloward-Piven Strategy, i.e., overload the system and collapse it (the massive illegal immigration with its primary, secondary, and tertiary effects is one example of that strategy) to enable a socialist takeover as the solution are blossoming in full view and SCOTUS and Congress are letting it happen. See this link for more on the Cloward-Piven Strategy: https://cdrkerchner.wordpress.com/2011/07/26/the-cloward-piven-strategy-the-progressive-lefts-plan-long-term-is-now-collapsing-our-economy-cdr-kerchners-blog/
The Chief Justice John Roberts led U.S. Supreme Court’s decisions are leading the country to ruin.
There does not need to be an amendment. The framers of the Constitution no where did they indicate that they wanted anyone that could make it to our shores would become citizens of the United States.
Through misinterpreted and misrepresentation that is what we have today
Thomas and Alito Fume Over Birthright Citizenship Ruling in Blistering Dissents: https://www.thegatewaypundit.com/2026/06/thomas-alito-fume-birthright-citizenship-ruling-blistering-dissents/
A weak, split decision. It’s now up to Congress to resolve this. But as usual the Congress will likely duck the issue too and not do what is right for the country to stem the tide of the abusive tourism birthright citizenship scam and the magnet for illegal immigration the current status quo creates.