Shortly after the Supreme Court announced in April that it would review the nationwide injunction blocking President Donald Trump’s executive order ending birthright citizenship, Trump spoke confidently with reporters in the Oval Office.
The former president expressed that he was “very happy” the justices were addressing the citizenship issue, which he claimed had been “very misunderstood.” Trump argued that the 14th Amendment — traditionally understood to grant citizenship to anyone born on U.S. soil — actually “deals with slavery.”
“It’s not about tourists coming and touching a piece of sand and suddenly having citizenship,” Trump said, adding, “It’s all about slavery.”
For more than a century, most scholars and courts have agreed that although the 14th Amendment was added after the Civil War, it was not solely about slavery. Instead, courts have held that the amendment extended citizenship not only to children of former slaves but also to all babies born within the United States.
The notion that the amendment might not guarantee birthright citizenship was once considered an unorthodox legal theory, championed by California law professor John Eastman and his colleagues at the conservative Claremont Institute. Eastman later provided legal arguments used by Trump to contest the 2020 presidential election results.
The progression of this theory from academic margins to the Oval Office and now the Supreme Court reveals how Trump has mainstreamed legal ideas previously deemed radical to support his immigration policies.
“They’ve been pushing this for decades,” said John Yoo, a law professor at the University of California, Berkeley, and a prominent jurist during the George W. Bush administration. “It was once thought to be a crazy notion only political philosophers would entertain. Now they finally have a president who agrees.”
The White House declined to comment on the issue.
Trump first promoted this theory during his initial campaign but did not act on it until his second term. On his first day in office, he signed an executive order aiming to end birthright citizenship for children of undocumented immigrants and some temporary foreign residents.
Legal challenges swiftly followed. Opponents pointed to the 14th Amendment’s text, which states: “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.”
Advocates for birthright citizenship emphasize it as a fundamental principle of American identity — reflecting the nation’s spirit as an inclusive place regardless of faith, color, or creed. Among the world’s 20 most developed nations, only Canada and the United States grant automatic citizenship to children born within their borders.
In a brief submitted to the Supreme Court, an immigrant advocacy group argued that “birthright citizenship lies at the core of our nation’s foundational principle that all persons born on our soil are created equal, regardless of their ancestry.”
State attorneys general opposing the policy filed a brief noting that the Supreme Court settled the matter in the landmark 1898 case United States v. Wong Kim Ark, where the Court held that a man born in San Francisco to Chinese parents was a U.S. citizen.
So far, courts have concurred. Judges in Washington, Massachusetts, and Maryland quickly issued nationwide injunctions blocking Trump’s policy.
During oral arguments this week, justices will mainly consider whether federal courts have the authority to issue these nationwide injunctions. However, the broader question of birthright citizenship remains central.
In an interview, Eastman said he developed his views on birthright citizenship after the September 11, 2001 terrorist attacks.
At that time, Eastman, a former clerk for Justice Clarence Thomas, was a law professor at Chapman University in Orange County, California, and director of the Constitutional Jurisprudence Center at the Claremont Institute.
In late November 2001, Yaser Esam Hamdi was detained by U.S. forces in Afghanistan and transferred to the U.S. military prison at Guantánamo Bay.
Authorities learned that Hamdi was a U.S. citizen, born in Baton Rouge, Louisiana, to a Saudi mother while his father worked as a chemical engineer.
Because Hamdi was a citizen, officials concluded they could no longer hold him as an “enemy combatant” at Guantánamo, a facility considered outside the full legal protections of federal courts. He was moved to a naval brig in Norfolk, Virginia.
In a 2004 amicus brief for the Supreme Court case, Eastman argued that the widely accepted interpretation that all children born on U.S. soil automatically receive citizenship was a “generally accepted but mistaken” reading of the 14th Amendment — one he believed was incorrect based on textual, historical, and political analysis.
Eastman’s theory drew on the work of Edward J. Erler, a political science professor at California State University, San Bernardino, affiliated with the Claremont Institute, who had published similar views in 1997 and 2003.
Erler, who did not respond to requests for comment, maintained that children born to people in the country illegally or temporarily do not automatically qualify as citizens.
While the concept that children born in the U.S. automatically gain citizenship has deep roots in common law, it was not codified in the Constitution until 1868 as part of the 14th Amendment. This amendment overturned the Dred Scott decision of 1857, which had upheld slavery and helped spark the Civil War.
Eastman contended that lawmakers never intended to include temporary visitors in the scope of the 14th Amendment during its drafting.
Judges, however, rejected this view, affirming that constitutional due process protections applied to Hamdi.
Over the years, Eastman and Yoo publicly debated the issue, with Eastman asserting that birthright citizenship is not constitutionally guaranteed, and Yoo defending its constitutional basis.
For much of that time, the debate seemed largely theoretical and of interest primarily to legal scholars.
“Never has an abstract idea had such enormous political consequences,” Yoo said. “It’s like it jumped from law review articles to the White House.”
This leap occurred when Trump entered the 2015 presidential race.
In an August 2015 interview with Fox News host Bill O’Reilly, Trump outlined his plans to overhaul immigration. O’Reilly initially expressed skepticism, growing increasingly frustrated.
O’Reilly cited the 14th Amendment as a barrier to Trump’s plan, but Trump responded, “I think you’re wrong about the 14th Amendment.”
“I can quote it… do you want me to quote the amendment to you?” O’Reilly asked emphatically. “If you’re born here, you’re a citizen, period! Period!”
“But many lawyers, many lawyers say it’s not that way,” Trump replied.
Eastman said Trump was probably referring to him and other scholars who had published on the subject, though he was unsure how the candidate first encountered these ideas.
Trump did not pursue ending birthright citizenship during his first term. Eastman said he met with Attorney General William P. Barr in 2019 to discuss a possible executive order on the issue, but no action followed. Barr did not respond to comment requests.
Eastman said he was “very happy” when Trump announced he would end birthright citizenship on his first day in office.
By then, Eastman and Trump had developed a close relationship. Eastman helped devise a plan to submit false slates of electors favorable to Trump in states won by Joseph R. Biden Jr. and urged Vice President Mike Pence to accept them during the 2020 election certification.
A California judge has recommended disbarment for Eastman over this episode. He plans to appeal, though his California law license is currently inactive. He is also facing criminal charges progressing slowly in an Arizona state court. (A case against him and others in Georgia appears unlikely to proceed.)
Eastman said Trump did not consult him directly about the birthright citizenship order, but several unnamed associates were involved. “They knew my scholarship was somewhat at the forefront of this,” he said.
Trump’s executive order reignited interest in scrutinizing the foundations of birthright citizenship, said Ilan Wurman, a law professor at the University of Minnesota and author of a book on the 14th Amendment.
“President Trump has a peculiar ability to shift Overton windows: issues people thought were off the table are now on the table,” Wurman said.
Wurman argues that a close reading of the 1898 case and historical records reveals the Supreme Court has never definitively ruled that children born to undocumented immigrants are citizens.
A flood of amicus briefs have presented these ideas to the Supreme Court justices, including one authored by Eastman.
In a brief submitted in late April, Eastman contended that although the Court agreed to hear arguments only on the nationwide injunction, it should also decide the underlying issue and end birthright citizenship.
“There are many people in this country awaiting resolution of this question,” he wrote. “Is the executive order valid or not? The longer we wait, the more distress it causes.”
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