A recording from Gadfly City's live video. In this episode, Monica Cardenas and Billy O'Brien, founding editor of Gadfly City, discuss the Supreme Court case on birthright citizenship -- BARBARA V. TRUMP -- and the implications of the discussion for the final decision in the case.
In this Gadfly City live video, Monica Cardenas and Billy O'Brien, founding editor of Gadfly City, discuss the Supreme Court case on birthright citizenship -- BARBARA V. TRUMP -- and the implications of the discussion for the final decision in the case.
Watch the video here: https://www.gadflycity.com/p/reviewing-barbara-v-trump-supreme
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Music Credits: Albatross by Roie Shpigler & Human-Short Version by Rex Banner
Copyright 2026 Gadfly City
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be Barbara.
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And Billy is going to help us break it down and understand what happened,
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why it happened,
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and maybe what we can expect.
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So Billy, can you start with some description, case description for us?
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Who brought the case and why?
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Absolutely.
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And I think that for most people, hearing a
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When they started to hear about this case over the last week or two,
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as it came before the Supreme Court,
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they might have thought it was a little confusing because the question seemed
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pretty easily answered from the text of the Constitution.
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But this case was brought,
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it was brought on behalf of a class of people by the ACLU in response to Donald
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Trump's executive order.
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A little over a year ago, he signed,
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just January of 2025.
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And that EO, as it's known, is called Protecting the Meaning and Value of American Citizenship.
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And what it did was it limited citizenship and it tried to remove the birthright guarantee.
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And if you look at the language of the EO, it's a little, it's very interesting.
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It says that the 14th Amendment
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has always excluded from birthright citizenship persons who were born in the United
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States,
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but not subject to the jurisdiction thereof.
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And it went on to make two exceptions to a rule that everyone thought was pretty plain.
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The first one was that children born here from mothers who were unlawfully here are
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excluded from citizenship.
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And number two,
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And mothers that were here lawfully but temporarily are also denied citizenship,
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even though they're born here.
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And in both situations, the father is not here legally.
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And the ACLU, on behalf of the people that were targeted in this EO, brought the case.
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They filed their action a little bit
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in between the fall and winter of last year and um it went immediately to the
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federal district court most courts that saw it shot it down some even called it
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blatantly unconstitutional and and these are people who had babies in 2025 right so
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what's the
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uh status of those children now while we're waiting to have a decision from the
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supreme court right so that's a very important question and before that one thing
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to think about too is that this is prospective right everything before the eo does
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not implicate at all but a lot of people don't know and that's a lot of the case uh
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a lot of the frustration over the people that are
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arguing against this eo and challenging it is that it really puts in jeopardy and
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puts a lot of scrutiny over people in that class yeah what about this term um the
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subject to the jurisdiction thereof because i'll be honest i don't really
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understand what that means and that's kind of the part that's the question
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All persons born or naturalized in the U.S.
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and subject to the jurisdiction thereof are citizens of the United States.
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So what does that clause mean?
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So,
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and this is a big component of the argument of the people arguing for this EO,
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largely from the conservative Republican side backing Donald Trump.
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They look at the 14th Amendment, which has, you know, four or five sections, and they say that
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That phrase,
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subject to the jurisdiction thereof,
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limits the preceding phrase,
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all persons born or naturalized in the United States are citizens.
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And if you listen to their arguments in the Supreme Court,
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they take this phrase to mean that people that are not domiciled here or have
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allegiance to this country aren't subject to the jurisdiction thereof,
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especially those that are here illegally.
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And because of that, they
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make the connection that their children should be denied citizenship.
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And it really calls into question the meaning of the 14th Amendment and the history
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of it,
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which we can get into.
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So the jurisdiction there,
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that has to do with the allegiance or where they choose to live in the world.
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Is that accurate?
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Yes, it does.
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It also gets to the idea of sovereignty.
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authority of a sovereign country.
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And arguing in front of the Supreme Court,
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the Solicitor General representing our government argued that if citizens,
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you know,
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just traveling through here don't really have any allegiance or if they're
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illegally here,
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we don't really have jurisdiction over them,
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right?
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And the complementary, the corollary to that
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is that they shouldn't get citizenship, right?
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If they're illegally just traveling through,
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they don't have allegiance,
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they're not really domiciled here,
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then they shouldn't get citizenship,
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and now they're sure they're children,
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unlike what the plain text reading of the 14th Amendment says.
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Yeah,
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that sounds questionable just to me,
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who is not a lawyer,
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but how can you make those judgments about an infant
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yeah because that's who we're talking about we don't know where they live or how
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long they they'll want to live in the united states in the course of their lives so
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right right and it really draws the rights of one from from the actions of another
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and typically constitutional rights don't do that and it does lead into a lot of
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the specious claims made by the solicitor general and the conservative side in
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general which we can talk about
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Yeah, what were some of the other arguments the solicitor made?
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A couple of key points to their argument in front of the Supreme Court.
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And the first one was historical.
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He said that the 14th Amendment and birthright citizenship in general was meant for
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freed slaves and their families.
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And after that, they started to make, as we talked about earlier,
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a very legalistic textual argument of,
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you know,
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going astride from the plain text meeting to looking at the clause next door to it
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and saying,
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well,
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you know,
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this is limited because they're not subject to our jurisdiction,
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you know,
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through,
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if they're traveling through,
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if they're here illegally.
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So that was another point they made.
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And then going on from that, they tried to bring in congressional discussion around
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the act around the amendment and that's important to really hone in on because the
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14th amendment was enacted in 1868 just directly responding to the Dred Scott
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decision which did not give birthright citizenship to slaves and this was meant to
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undo that and finally they
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They tried to talk about policy and they said that if this,
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if birthright citizenship was allowed for people here just traveling through,
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here legally,
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here without the government having any jurisdiction over them.
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And this would encourage birth tourism.
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People would come here and just start having children to get citizenship for them
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in this country.
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And most of these points were directly contradicted by the liberal side,
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the side arguing against this.
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But what did you think about those points?
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Did you have any federal reaction?
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Yeah,
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I mean,
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first of all,
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I guess it seems to me maybe,
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I struggle to say this,
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but it seems to me maybe a valid argument to say that this law was in place
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to be sure that slaves received citizenship, so to overturn Dred Scott.
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That makes sense to me because that was the reason.
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But when it was written, it didn't say it applied only to former slaves, right?
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They didn't go the length to say it didn't apply to anybody else.
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And I suppose, I mean, wouldn't that, that would call into question the citizenship status of
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millions of Americans who, I guess it's not retroactive, but that's how all of us got here.
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Yeah.
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So.
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And you're right.
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It's like we're just Trump and,
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and you know,
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the,
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this executive order just once is changing their minds about how America is
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populated.
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Yeah.
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And we, it definitely does.
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And it, this was, this issue was raised at the court and
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several justices commented on how how are we going to enforce this right and are
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people going to have to show papers right after they're born mothers under you know
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that are just getting out of pregnancy are they going to have to get their wits
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about them and march down to some government building and you know yeah that and
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especially since the government the solicitor tried to make the argument that they
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should do this after the fact they should be
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have to prove that they should get citizenship right it's it's a little uh it's a
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little unwieldy and i think yeah i i noticed that that um argument in the piece
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that you wrote for gadfly city on um this case and i really got hung up on it on
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that responsibility for the mother in the aftermath of giving birth um it seems
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like an insane thing to ask of them but
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it wasn't at all surprising, right?
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Because it seems to me that women and especially mothers are always subject to new
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complications and layers of bureaucracy.
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And it called to mind for me, women who are raped and go on to have children.
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If they seek government assistance down the road, they're often required to identify a father.
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which they probably have not had any contact with.
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They don't want to have any contact with.
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And then it raises all sorts of questions about custody.
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And this whole case reminded me of that burden,
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that we set these laws and rules that someone somewhere thinks makes sense.
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But in practice, all it is is it puts women in danger.
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And I could imagine that there could be women giving birth
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That maybe they're not a citizen of the United States,
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but the father was,
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but maybe they are abusive and the woman wants to escape from him,
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but she can't because in order for her child to have citizenship,
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she needs to prove that that's the father.
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I mean, how would this work?
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And the other thing to think about too is what if the mother doesn't know the father?
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Right.
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Are we going to have to bring in 23 and me and do a paternity test?
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What court?
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uh would really enforce that you know it's is a state court federal court a lot of
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questions unanswered and um you know kind of implicating judicial activism and
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that's what a lot of the aclu and people opposing this eo had to mention if you
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want to talk about this people opposing this executive order in front of the
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supreme court you know primarily liberal um
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organizations but you know their main main thrust of their argument is read the
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amendment it says all people born here right and um putting aside the sort of
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ridiculousness of plain text textualists uh typically conservatives uh sort of
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jumping over to judicial activist approach um you know
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The ACLU went on to say that in the biggest case that squarely dealt with this
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matter,
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wonky in early 1900,
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it ruled in favor of their side.
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And then laws passed subsequently in the 40s and 50s did so as well.
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You know, they brought up policy things, policy complaints to to make their point.
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Who's going to enforce this?
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Why should they have to do it after the fact?
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What you know, what are they going to have to show?
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um it really calls into question not just this eo but what they're trying to do in
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general you know what what the real motivations are you know yeah i want to go back
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to that textualist point because yeah it does say in black and white that people
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born here are citizens right so yeah
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I know most conservative justices on the court and a lot of conservatives in
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general will say that what the Constitution says goes and it's it should be that
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simple.
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But in this case, it seems they're making the opposite argument.
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So how have they squared that?
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Yeah, I'm thinking mostly of the Second Amendment.
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The argument is always says the right to bear arms, right?
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There's no arguing it from their point of view.
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So why can you argue it in this case?
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Yeah,
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and not just that,
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but if you listen a little further,
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and I encourage people to do,
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they can find the whole argument.
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It's about two hours on YouTube.
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And it's fairly interesting to see the justices shoot back at the people arguing their side.
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And at one point, the solicitor general even kind of doubted
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the uh the idea of separation of powers and i don't remember what justice it was
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but uh they said that you know that's not a recommendation that's a mandate in this
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country um and you know just kind of you're right they are
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flip-flopping and going back and forth on the rubric they use to analyze
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constitutional amendments and you know people that historically don't want to bring
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in congressional testimony or policy considerations are right not only that but if
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you listen they start mentioning old english common law from several hundred years
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ago uh european laws from thousands of years ago to make their point trying to do
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everything
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but read the constitution.
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You know what I mean?
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It's,
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it's throwing,
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it's throwing a lot of money at the wall and it,
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it does make something that's rather straightforward,
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very confusing.
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Right.
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Yeah.
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Yeah.
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What,
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um,
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I guess what I've always learned is if,
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since I,
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um,
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would like restrictions on gun access,
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um,
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going back to the second amendment example,
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the argument I've always,
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um,
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been given in return is that if we want to change gun rights,
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we need to amend the Constitution,
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right?
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I guess get rid of the Second Amendment.
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So if we carry that forward to the 14th, what would the process be?
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Would then Congress need to introduce a different law?
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And then if that's the case, why didn't we just go that route from the first place?
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Trump instead did the executive order.
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Right.
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So, I mean, amending the Constitution is supposed to be really difficult, right?
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You need to go to a state level.
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You need to go to the federal level.
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That's why it takes a while.
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That's why these laws were passed several years after the Civil War ended.
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It does take a long time to organize states to pass these things and then get it
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done at the federal level.
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It's supposed to be difficult.
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It's also, in general, they're not supposed to be rewritten.
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in the Supreme Court, you know, just like laws.
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And it is rather interesting to see some conservatives who have typically decried
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this type of activism,
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give it a little bit of leeway and crack the door for it.
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You know,
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it's kind of one of my biggest observations about this case is the sort of bending
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over backwards.
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And it does get to their their
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original motivations, I think.
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Yeah, yeah.
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Were there particular justices that seemed like they might be amenable to the
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solicitor's arguments?
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Honestly, right, I think Alito had seemed kind of sympathetic.
(00:20:40):
Most liberal center, left of center justices were rather combative over the idea, even some
(00:20:49):
that you might consider right-leaning or center-right-leaning were very skeptical.
(00:20:55):
I think most observers kind of summarize that the justices seem like they vote
(00:21:03):
against it and rule against it.
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And there's a lot of observations from any particular,
(00:21:10):
from anyone watching,
(00:21:11):
reading,
(00:21:12):
listening,
(00:21:13):
they might come to.
(00:21:15):
One of the biggest things that's very interesting about this case that's never
(00:21:19):
happened before is that a president showed up for it.
(00:21:24):
Right.
(00:21:24):
I wanted to ask you about that.
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He was there for the arguments.
(00:21:30):
You can go and watch, but you know, no president ever has.
(00:21:34):
And I think out of respect for separation of powers, most haven't.
(00:21:42):
Or for some other reason, Trump tends to
(00:21:45):
make his own rules.
(00:21:46):
And it's hard to ignore him sitting front and center on a case that it isn't some
(00:21:52):
type of political intimidation.
(00:21:55):
And when you have a solicitor general arguing on the government's behalf,
(00:22:00):
hired,
(00:22:00):
you know,
(00:22:01):
put in there by Trump,
(00:22:03):
kind of intimating that separation of powers is not a Mac,
(00:22:08):
you know,
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it's just,
(00:22:10):
it's a soft rule,
(00:22:11):
right?
(00:22:11):
We follow it if we need to.
(00:22:13):
With the president right behind him,
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It becomes more of a shot across the bow at the judicial branch of government.
(00:22:22):
And it's a little,
(00:22:23):
that combined with they're asking the Supreme Court to rewrite the constitution.
(00:22:28):
It raises a lot of questions, but I mean, there's so many.
(00:22:34):
I think it's important that,
(00:22:37):
I think it's fair,
(00:22:39):
if I'm being fair-minded here,
(00:22:41):
that Trump would want to listen to the arguments perhaps.
(00:22:46):
but i mean anybody could from anywhere on the internet so it wasn't necessary for
(00:22:52):
him to be in the room and i have to assume that it was an intimidation technique
(00:22:59):
you know i think that this whole eo seems like intimidation right it seems targeted
(00:23:05):
towards a class of people and this isn't this isn't the first time that this has
(00:23:11):
happened but um
(00:23:14):
you know, very clearly, it seems targeted toward illegal immigrants.
(00:23:18):
And if you look back, this is one of the biggest reasons why Trump won the election.
(00:23:25):
He came in with a man with a promise of cracking down on illegal immigration.
(00:23:31):
But it doesn't mean the children, you know.
(00:23:33):
No,
(00:23:35):
I mean,
(00:23:35):
like so much else that he's done to crack down on immigration,
(00:23:40):
it's not what people voted for.
(00:23:44):
um it is deport he's deporting innocent people people who are here illegally and
(00:23:50):
people who you know babies who until his executive order would have been citizens
(00:23:58):
yeah you know by extension we're saying that these little children newborns are
(00:24:03):
illegal immigrants and that that will stamp them for life and this country has
(00:24:07):
tried to do that over the last couple hundred years nativism has sprung up
(00:24:13):
at various points and to large degrees.
(00:24:16):
In the middle of the 1800s,
(00:24:18):
there was a know-nothing party who didn't really do much either targeting the
(00:24:22):
Irish.
(00:24:23):
And then there was a prolonged campaign against the Chinese.
(00:24:26):
We had an act,
(00:24:27):
the Chinese Exclusion Act,
(00:24:29):
and codifying sort of nativism into law and internment camps and in the 40s and
(00:24:37):
other circumstances and events which mirror this
(00:24:43):
right and it's it's not typically you know what americans do and it's not typically
(00:24:51):
how we read the constitution and the other yeah i mean those are shameful parts of
(00:24:56):
our history that you would think are recent enough that we remember and should know
(00:25:04):
better than to be repeating now but it seems that's what what trump's trying to do
(00:25:10):
we're not you know this historically
(00:25:13):
a country that says bring us your poor little messes you know i don't i don't think
(00:25:19):
that i don't think that's living up to that creed but you know we don't have to go
(00:25:24):
back to history to think about the ram the negative ramifications of this executive
(00:25:32):
order right we had ice running around minnesota and chicago and oregon all over
(00:25:39):
raising a lot of havoc you know are they going to be the ones
(00:25:43):
going through hospitals,
(00:25:45):
checking mother's papers who are still under medication because they just came out
(00:25:50):
of a pregnancy.
(00:25:52):
Is that what people want?
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It seems like we're creating the laws.
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They're trying to create laws to give their federal agencies cause to go around and
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targeting a very vulnerable class of people.
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And I think that if this were a real concern, it might have been raised by the legislature.
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But I think there are a lot of constituents that remember how their family got into America.
(00:26:31):
And trying to treat others as we want ourselves treated,
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I don't think that this would have been floated.
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And I think that's why
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Trump went this legal route to get what he wanted done.
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And it's unfortunate that for conservatives who typically decry,
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you know,
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judicial activism and they,
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they don't want,
(00:26:55):
they don't want anything beyond the four corners of the law or the,
(00:27:00):
you know,
(00:27:00):
the regulation or the constitutional amendment analyzed.
(00:27:03):
Um, it does seem like they are operating on politics.
(00:27:08):
Yeah.
(00:27:08):
It's just another example.
(00:27:09):
I think of how, um,
(00:27:11):
many republicans have just laid down their their ethics their priorities in favor
(00:27:20):
of whatever trump wants to do if you had to oh sorry this is politics by bullying
(00:27:29):
right if you and speaking of bullying going back to trump being in the room during
(00:27:35):
the arguments uh for this case
(00:27:39):
If you had to guess at what the Supreme Court decision would be,
(00:27:44):
what,
(00:27:45):
first of all,
(00:27:45):
can you tell us when we should expect a decision and what would you guess it is?
(00:27:50):
So Supreme Court hears cases in spring and they typically start rolling out opinions June, July.
(00:27:57):
So we shouldn't expect a decision around then.
(00:28:00):
Getting to the question of how they're going to rule, that's kind of like,
(00:28:06):
trying to decide where nine cats are going to end up at the end of the night, right?
(00:28:10):
You know,
(00:28:12):
a lot of people speculate that they'll rule against this for the reasons we talked
(00:28:16):
about.
(00:28:16):
You're asking a conservative court to be judicially active,
(00:28:21):
to go against the threads that they have like wound their jurisprudence over for a
(00:28:31):
long time.
(00:28:31):
So I don't think this will get passed.
(00:28:35):
I do think it's rather disturbing that such a fuss was made over it,
(00:28:41):
you know,
(00:28:42):
as in a shameless plug,
(00:28:44):
read the promise of America on Gavfly City.
(00:28:47):
And you respond to my article and see what you think.
(00:28:49):
But with so many other issues out there.
(00:28:53):
Right.
(00:28:54):
One wonders why we're spending so much time on this.
(00:28:58):
Right.
(00:28:59):
Yeah, absolutely.
(00:29:00):
It's another distraction, I'd say.
(00:29:05):
All right.
(00:29:06):
All right.
(00:29:07):
Thanks for having me on.
(00:29:08):
Thanks, Billy.
(00:29:09):
All right, cool.
(00:29:11):
Take care.
(00:29:12):
Bye.