What the Justice Department overlooks in its historical argument to end birthright citizenship

SCOTUSblog

by César Cuauhtémoc García Hernández

February 19, 2026

AI-Generated Deep Dive Summary

The Justice Department’s argument to end birthright citizenship through an executive order has been criticized for selectively interpreting historical legal texts. In its defense, the DOJ cites examples from 1885 where children born in the U.S. to temporary residents were denied passports, referencing *A Digest of the International Law of the United States* by Francis Wharton. However, Wharton’s own work contradicts this stance, as he noted that under common law, individuals born in the U.S.—except diplomats—could be considered citizens. This internal inconsistency undermines the DOJ’s case, raising questions about the reliability of its historical evidence. The executive order, signed by President Trump, seeks to deny citizenship to children born to mothers with temporary visas or unauthorized status. A lawsuit challenging this order, *Trump v. Barbara*, is pending before the Supreme Court. The DOJ’s argument hinges on outdated practices and selective interpretation of 19th-century law, which conflicts with established precedents like the 1898 *United States v. Wong Kim Ark* decision, which extended citizenship to all U.S.-born individuals except diplomats, Native Americans, and invading forces. This legal inconsistency highlights the DOJ’s flawed approach to rewriting citizenship rights. The debate over birthright citizenship is deeply significant for legal and political reasons. It challenges the long-standing interpretation of the 14th Amendment, which guarantees citizenship to anyone born in the U.S., regardless of their parents’ status. Critics argue that the DOJ’s position aligns with anti-immigrant rhetoric rather than constitutional principles. This issue not only impacts immigration policy but also raises broader questions about national identity and legal precedent.

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Originally published on SCOTUSblog on 2/19/2026