On August 7, 2026, an executive order was issued that challenges the current understanding of birthright citizenship under the Citizenship Clause of the Fourteenth Amendment to the United States Constitution. The order identifies and prescribes actions concerning certain categories of children born to alien parents who do not fall within the Supreme Court's announced rule on birthright citizenship.

The Citizenship Clause extends citizenship to children born in the United States "for whom no extraterritorial fiction applie[s]," according to recent Supreme Court decisions cited in the order. However, the order further denies citizenship to individuals born in U.S. territories or territorial waters where citizenship is not conferred by federal statute. It remains unclear if any such jurisdictions exist where citizenship is granted by executive order rather than statute.

Legal scholars, including Randy Barnett, have engaged with related cases such as Landor, described as a sleeper case of the year, and are preparing updated casebook editions to reflect these developments. The debates surrounding the interpretation of "extraterritorial fiction" and exemptions to birthright citizenship continue to provoke discussion, with no clear majority settled on the issue.

This executive order effectively calls into question the Supreme Court's current stance on birthright citizenship, prompting speculation about how Justice Barrett and the Court will respond.

Sources