What will Justice Barrett do?
I am, steadily making headway through the closing days of the October 2025 term. I have already shared my analyses on Wolford and Hemani. I have just completed an essay on Slaughter and Cook, which should appear in Law & Liberty next week. I also authored a piece addressing Mullin v. Doe and Mullin v. Al Otra Lado, slated for publication subsequently. Randy Barnett and I contributed an essay on Landor, which proved to be the sleeper among the year’s cases. SCOTUSBlog is also carrying my series on Court reform; thus far, a measure of consensus has emerged, though future installments may diverge.
To date, I have not yet published anything on Trump v. Barbara. That isn’t due to a lack of thoughts. I have a lot. Indeed, Randy and I spent much of July deliberating how best to present the case for the Fifth Edition of our casebook, which should be available for adoption in December 2026.
Barbara could rank among the most consequential rulings the Supreme Court has ever issued. In the end, I share Justice Thomas’s view that the Chief Justice’s opinion is not a landmark. I already dread teaching this case. A recurring exercise I give is to condense the holding of the decision into a single sentence. Try it. How would you state Roberts’s rule of order? What standard governs citizenship for a person born on U.S. soil? It is more challenging than it might appear. Whatever your answer, it should engage with the notion of an “extraterritorial fiction.” Trust me, paging through the debates in the Congressional Globe reveals no reference to such a term. This phrase may be among the slipperiest blue plate specials the Chief Justice has ever offered.
In the Chief’s view, the best rule is not to issue a precise rule at all. But surely the Chief anticipated how Trump would react to this decision. Justice Kavanaugh clearly understood that the President would not surrender.
The President has issued a new executive order on birthright citizenship. The order outlines what Trump v. Barbara purportedly held, and what room remains to deny citizenship to the children of certain aliens:
On June 30, 2026, the Supreme Court decided in Trump v. Barbara, 609 U.S. ___, 146 S. Ct. 2438, 2449 (2026), that the Citizenship Clause of the Fourteenth Amendment to the United States Constitution extends the privilege of citizenship to children born to parents in the United States “for whom no extraterritorial fiction applie[s].” This order identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court.
Did Trump v. Barbara provide a “closed set” of exemptions to the rule in Calvin’s Case or was the list “exhaustive”? I don’t think the majority settled this issue, so the roster is “non-exhaustive.”
The order explains that the child of an alien enemy is not a citizen at birth. I welcome a lawsuit from the ACLU demanding citizenship for the children of members of Foreign Terrorist Organizations.
The order also excludes the child of a parent engaged in birth tourism. I think the argument here is that there is an “extraterritorial fiction” for this group, as the birth is the product of “fraudulent activity.”
The order further provides that citizenship is denied to a “person . . . born in a territory or territorial waters of the United States where citizenship is not conferred by Federal statute.” I am not certain if there are any such jurisdictions where citizenship is conferred by executive order and not statute. But here is a test to the Insular Cases.
What will the Chief do? What will Justice Barrett do?
Stay tuned.
