Felicia Ellsworth: Welcome to In the Public Interest, a podcast from WilmerHale. My name is Felicia Ellsworth.
Jekkie Kim: And I'm Jekkie Kim. Felicia and I are partners at WilmerHale, an international law firm that works at the intersection of government, innovation and business.
Felicia Ellsworth: Today's episode is the first installment of our 2026 Supreme Court miniseries, where we dive into the most hotly-contested decisions coming out of the Supreme Court this term and discuss the implications of the Court's rulings going forward. In this episode, we'll be discussing one of the term's most consequential constitutional cases, which addressed whether the 14th Amendment guarantees citizenship to children born in the United States to parents who are unlawfully or temporarily present in the country. My WilmerHale colleague and fellow appellate litigator, Daniel Volchok, sat down with Brian Boynton, who serves as the chair of the firm's Regulatory and Government Affairs Department and co-chair of the Government and Regulatory Litigation Group, to talk about the case. Without further ado, I will turn things over to Daniel and Brian.
Daniel Volchok: Hi everyone, and welcome back to In the Public Interest. I'm Daniel Volchok, I'm the vice chair of WilmerHale's Appellate and Supreme Court Litigation Group, and I'm delighted to be returning as a guest host for our annual Supreme Court miniseries. Today we'll be discussing Trump v. Barbara, which is the Supreme Court's decision from the very end of the term on birthright citizenship. And with me to discuss the case is Brian Boynton, a partner in WilmerHale's Washington DC office. Brian, thank you so much for joining us.
Brian Boynton: Thanks, Daniel. It's really great to be here.
Daniel Volchok: Okay, so this is your first time joining us. Before we dive into Trump v. Barbara, can you tell listeners a little bit about yourself and your practice?
Brian Boynton: Yes, I'm happy to. I've spent my entire career at either WilmerHale or at the Department of Justice here in Washington DC. I first joined WilmerHale in 2002, and then most recently I rejoined the firm in 2025 after serving as the head of the civil division at the Department of Justice for four years during the Biden administration.
Daniel Volchok: Terrific. Great to have you. And turning to our case for today, let's start with the basics. What was Trump v. Barbara about?
Brian Boynton: Great. At a high level, it was about whether the federal government can constitutionally deny citizenship to certain children born in the United States based on their parents' immigration status. The 14th Amendment to the Constitution, which was one of the Reconstruction amendments adopted after the Civil War, says, “all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” But when President Trump returned to the White House for his second term, he issued an executive order saying that children born in the United States are not US citizens if their parents were either in the country unlawfully or were here lawfully but only temporarily, such as on a work visa or a tourist visa. Several individuals sued to challenge the EO as unconstitutional, and the trial judge ruled in their favor and blocked enforcement of the order. The Supreme Court then agreed in what was a pretty unusual move to hear the case immediately rather than requiring the lower appellate courts to hear it first.
Daniel Volchok: Great, and I want to unpack some of that and get into the opinions and the oral argument, but some of our listeners might be thinking, gee, didn't the Supreme Court recently decide a case about the birthright citizenship executive order? The answer is yes, but Brian, can you explain the difference between that earlier case, which was called Trump v. CASA, and this case?
Brian Boynton: Yeah, you're exactly right. This is the second trip to the Supreme Court for this relatively new executive order. Last year, there were three different trial judges that each held that the executive order violated the 14th Amendment. And each one of those judges issued what's called a nationwide injunction that prohibited the Trump administration from enforcing the order against anyone in the country, not just the specific plaintiffs in the case. That's why it was called a nationwide injunction. The government asked the Supreme Court to review the propriety of the nationwide injunction, arguing that a federal court just doesn't have the power to issue an injunction that goes beyond the specific parties to a particular case. The government was careful, though. It specifically did not ask the Supreme Court to address the merits of the issue, the constitutionality of the EO. The Supreme Court agreed to this limited issue and took up the question of nationwide injunctions. Then a year ago, as you mentioned, in Trump v. CASA, the Supreme Court held by a 6-3 vote that nationwide injunctions are generally unlawful, at least where the Court has not actually certified in a class action a class of plaintiffs, and that had not happened in any of the three cases here. One thing that's worth noting and is interesting is that this all happened very quickly. Trump v. CASA made it from the filing of the complaints that started the lawsuit all the way to a ruling by the Supreme Court in about 5 months. That's really extraordinarily fast for a case to get all the way through our federal court system up to the Supreme Court.
Daniel Volchok: Indeed it is. Cases can sometimes take a year just at the Supreme Court, let alone the years that they usually have to spend in the lower courts. So back to Trump v. Barbara, the case from this most recent term. What did the Supreme Court ultimately hold about the constitutionality of the president's executive order on birthright citizenship?
Brian Boynton: So this time the Court was split a little bit differently. It was a 5-4 vote. And the Court held that the executive order violates the 14th Amendment because all children born in the United States who are subject to the jurisdiction of the United States are US citizens at birth, even if their parents were in the country unlawfully or only temporarily. In practical terms, this means the executive order cannot be enforced to deny citizenship to any of those children. Chief Justice Roberts wrote the majority opinion. He assigned it to himself, which is his prerogative as the Chief Justice. And this opinion was joined by four other justices: Justices Sotomayor, Kagan, Jackson and Barrett. Then there were several separate opinions that we can also talk about. But the majority concluded that from its review of the 14th Amendment's text, as well as its consideration of the relevant history, that all children born on US soil are US citizens, unless they fall within a few narrow and well-recognized exceptions, such as the children of foreign diplomats who were born here in the United States.
Daniel Volchok: Okay, and I do want to talk about the separate opinions and about the oral argument. There was a prior Supreme Court case that actually figured prominently in the opinions and in the party's briefing and at oral argument. Can you tell us a little bit about that case, which was called United States v. Wong Kim Ark?
Brian Boynton: Yes, so Wong Kim Ark is a case from way back in 1898. In that case, the Supreme Court held that a child who was born in San Francisco to Chinese parents was a US citizen at birth, despite the fact that his parents were not US citizens. The case has long been understood as the leading precedent supporting a robust understanding of the birthright citizenship that's protected by the 14th Amendment. In Trump v. Barbara, the most recent case, the government argued that Wong Kim Ark turned on the fact that the child's parents were lawfully, “domiciled” in the United States at the time he was born. That means that they were living in the United States with an intent to stay there for the long term. Under this view, the child is, “subject to the jurisdiction of the United States,” the key language from the 14th Amendment, only if the child's parents were lawfully domiciled in the US. The Supreme Court, however, rejected that reading of Wong Kim Ark in the recent Barbara case.
Daniel Volchok: Okay, and as I said, Wong Kim Ark was discussed quite a bit at the oral argument, as in the brief. Was there anything particularly notable about the argument?
Brian Boynton: This was a really interesting oral argument in a number of ways, but there are three that I wanted to flag. First, this case marks the only time, at least as far as we're aware, that a sitting president of the United States attended an oral argument in the Supreme Court's building. President Trump was there to hear the case, and that was really unusual and notable. Second, this was the argument in which Chief Justice Roberts made a comment that got some attention from the mainstream media, as well as it drew some laughter in the courtroom at the time. At one point during the argument, the government's attorney suggested that the government should prevail in part because he said we're in a new world where eight billion people are one plane ride away from having a child who's a US citizen. In response, the Chief Justice said, well, it's a new world, it's the same Constitution. That view eventually carried the day with the majority of the justices. And then the final observation is that many people came away from the argument thinking that Justice Gorsuch seems skeptical of the government's position, but then ultimately he ended up dissenting and voting with the government in the case. So that was an unusual, seemingly flip of his position.
Daniel Volchok: And just to your first point about President Trump being the first sitting president we know about to attend, of course, we can't count William Howard Taft. He was the president and then later Chief Justice. But of course, by the time he became Chief Justice, he was no longer a sitting president. All right. You mentioned the opinions in the case other than the majority opinion. Can you give us a quick summary of who wrote separate opinions? And then we can talk about them in a bit more detail.
Brian Boynton: Yeah, there were five separate opinions and in total, the Court's decision spanned 194 pages, so there was a lot going on in this case. The first separate opinion was by Justice Jackson. She filed what's called a concurring opinion. She joined the majority opinion in full, but she wrote separately because she wanted to respond to Justice Thomas's dissent. And one thing that's interesting is that she used some pretty pointed language in her concurrence. This was the latest example of those two justices, Justice Thomas and Justice Jackson, engaging directly with one another in separate opinions. It's something we've seen in a number of cases now. It will be interesting to see if it continues. All right, so then the second opinion was from Justice Kavanaugh. He wrote a partial concurrence in the judgment and a partial dissent. It means he agreed in part and he disagreed in part with what the majority had done. He agreed with the bottom-line results that the Court reached, which was blocking enforcement of the executive order, but he disagreed with the majority with respect to its constitutional ruling, that the executive order is unconstitutional. In his view, Congress could pass a statute that limits birthright citizenship in the way that the executive order did. But Congress just hadn't done that. Congress decades ago passed a statute that, in his view, adopted the Wong Kim Ark interpretation, that all children born in the US are citizens subject to just narrow exceptions. So in Justice Kavanaugh's view, the executive order didn't violate the Constitution, but it violated Congress' statute. And because statutes take precedent over executive orders, Justice Kavanaugh reached the same bottom line as the majority, which is that the EO is unenforceable. One thing I'll mention is that Justice Kavanaugh's concurrence caused some back and forth among Supreme Court watchers about how the media covered the decision. A lot of the media outlets reported the decision initially as 6-3, counting Justice Kavanaugh as being with the majority because of his bottom-line view that the executive order was unlawful. Some Supreme Court commentators took issue with that reporting. They argued that the proper count was really 5-4 because only five justices concluded that the executive order violated the Constitution. Other commentators defended the initial reporting. Of course, the real truth is that both 5-4 or 6-3 is correct, it just depends what you're counting. In addition to these two opinions we talked about, there were three separate dissenting opinions. One was by Justice Thomas, one by Justice Alito, and one by Justice Gorsuch. They each basically agreed with the government's position that the 14th Amendment reflects a narrower conception of birthright citizenship. Justice Thomas argued that the Court's decision, “devalued US citizenship.” And Justice Alito wrote to the Court, “has made a mistake that will seriously affect the country's future.” So these were pretty impassioned dissents.
Daniel Volchok: All right, Brian, stepping back a little bit, this was an enormously consequential decision, but it was one of only scores that the Supreme Court decided in this term. How do you think the Trump v. Barbara decision fits into the bigger picture of the court's October 2025 term?
Brian Boynton: Yeah, that's a good question. Overall, the term was one in which the Supreme Court sided with the federal government, with the Trump administration in a lot of cases, particularly on what's called the shadow docket, where cases come up to the Supreme Court very quickly after usually an injunction has been entered by a lower court. But the Supreme Court also sided with the federal government in a lot of high-profile cases on the merits docket, including cases about the Voting Rights Act and about the president's power to remove senior executive officials at will without any particular cause. At the same time, there were definitely some big exceptions to that general trend, including the Court's decision invalidating the Trump administration's imposition of tariffs under the statute called IEEPA, and then including this case as well.
Daniel Volchok: Sometimes presidents win and sometimes presidents lose in the Supreme Court. And I think we've seen that across administrations. Now, Brian, this case was obviously an important case for the administration litigated by the Justice Department. You talked at the beginning about your own experience at DOJ. Can you tell us a little bit in light of your experience how a case like this looks from the perspective of a government litigator? When the government is defending a policy that raises significant constitutional questions like this one, how does DOJ go about evaluating the various considerations involved in forming its litigation position?
Brian Boynton: A case like this would be a really interesting and challenging one for the federal government. Generally, the Department of Justice is going to defend an act of Congress or an executive order as long as there are reasonable, good faith arguments to be made to defend it. But this one was challenging because there was a Supreme Court precedent, albeit an old one, that seemed to be squarely contrary to what the president had done. It's not unheard of for the federal government to change its position on an important legal issue. But when it does, the decision is generally one that's been very carefully considered and vetted. Typically, a decision like that would be made by the Solicitor General, who's the head lawyer at DOJ appearing in the Supreme Court. And it usually follows a really long process of gathering input from all the affected federal agencies and from different DOJ components, like the Civil Division where I was for four years. And in this case, that process obviously couldn't happen in the usual way because the executive order was issued by President Trump on his very first day in office. Now, we have to assume that this important legal issue was carefully considered during the presidential transition after the election before the inauguration. But it's notable that the government took an action seemingly contrary to settled Supreme Court precedent on day one of the administration.
Daniel Volchok: So we will certainly be keeping an eye on how this decision plays out in the lower courts and in the political branches. Brian, thanks so much for joining us and helping us unpack one of the most consequential decisions of the OT 25 term.
Brian Boynton: Thanks, Daniel. I very much enjoyed the conversation. Thanks for doing it.
Felicia Ellsworth: And thank you to our listeners. If you enjoy this podcast, please take a minute to share with a friend and subscribe, rate, and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please e-mail them to us at [email protected].
Jekkie Kim: For our WilmerHale alumni in the audience, if you haven't already, please join our alumni center at alumni.wilmerhale.com so we can stay better connected. Special thank you to the producers of this episode, Isabel Saunders and Eugena Liu. Sound engineering and editing by Bryan Benenati, marketing by Allison Khan and Alexandra Thimble, all under the leadership of executive producers Jake Brownell, Kaylene Khosla, and Arpi Youssoufian. Thank you for listening.
Felicia Ellsworth: See you next time on In the Public Interest.
