Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Petitioners v. Barbara, et al.

Supreme Court briefFeb 26, 2026

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No. 25-365

In The

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL.,

Petitioners,

BARBARA, ET AL.,

Respondents.

On Writ Of Certiorari Before Judgment To

The United States Court Of Appeals

For The First Circuit

BRIEF OF THE SOCIETY FOR THE RULE OF

LAW INSTITUTE AND FORMER WHITE HOUSE

LAWYERS, SENIOR GOVERNMENT OFFICIALS,

FEDERAL JUDGES, GOVERNORS, AND

MEMBERS OF CONGRESS WHO WERE

APPOINTED OR NOMINATED BY REPUBLICAN

PRESIDENTS, OR ELECTED AS REPUBLICANS,

AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

HAROLD HONGJU KOH

BRUCE SWARTZ

SONIA MITTAL

MARGARET M. DONOVAN

Peter Gruber Rule of Law

Clinic

Yale Law School

127 Wall Street

P.O. Box 208215

New Haven, CT 06520

(203) 432-4932

harold.koh@ylsclinics.org

TADHG DOOLEY

Counsel of Record

ARMANDO GHINAGLIA

WIGGIN AND DANA LLP

265 Church Street

New Haven, CT 06510

(203) 498-4400

tdooley@wiggin.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 6

Executive Order 14,160 flagrantly contradicts

the settled meaning of the Fourteenth

Amendment. ...................................................... 6

Through the Fourteenth Amendment, the

American people adopted the jus soli rule. .. 7

The Supreme Court confirmed this

interpretation of the Fourteenth

Amendment in Wong Kim Ark. .................... 9

Congress codified Wong Kim Ark—twice. .. 12

D. The Executive Branch has respected

Wong Kim Ark for decades. ........................ 14

II. By issuing Executive Order 14,160, the

President violated his oath of office and

failed to faithfully execute the laws. .............. 17

Executive Order 14,160 constitutes

lawmaking, not execution of the laws. ....... 18

The Order’s language and structure

reinforce that it impermissibly seeks to

make new law. ............................................. 20

The process through which the Order was

issued also shows that it is not a faithful

execution of the laws. .................................. 22

III. Executive Order 14,160 violates the

separation of powers. ...................................... 24

The Order directly conflicts with the

express will of Congress. ............................. 25

The Order further undermines the

separation of powers by encroaching on

this Court’s authority to interpret the law. 28

Allowing the Order to stand would set a

dangerous precedent. .................................. 30

CONCLUSION .......................................................... 32

APPENDIX ............................................................... A1

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Afroyim v. Rusk,

387 U.S. 253 (1967) ............................................... 8

Agosto v. INS,

436 U.S. 748 (1978) ............................................. 10

Boyd v. Nebraska ex rel. Thayer,

143 U.S. 135 (1892) ............................................. 25

Chirac v. Lessee of Chirac,

15 U.S. (2 Wheat.) 259 (1817) ............................. 25

Clinton v. City of New York,

524 U.S. 417 (1998) ................................... 6, 19, 27

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857) ........................ 6, 7, 8

Evans v. United States,

504 U.S. 255 (1992) ............................................. 13

United States ex rel. Hintopoulos v.

Shaughnessy,

353 U.S. 72 (1957) ......................................... 10, 16

Hirabayashi v. United States,

320 U.S. 81 (1943) ............................................... 11

INS v. Errico,

385 U.S. 214 (1966) ....................................... 10, 18

INS v. Rios-Pineda,

471 U.S. 444 (1985) ................................... 2, 10, 16

Kendall v. United States ex rel. Stokes,

37 U.S. (12 Pet.) 524 (1838) .................................. 7

Learning Resources, Inc. v. Trump,

No. 24-1287 (U.S. Feb. 20, 2026) .................... 4, 21

Lorillard v. Pons,

434 U.S. 575 (1978) ............................................. 12

Mackenzie v. Hare,

239 U.S. 299 (1915) ............................................. 11

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803)..................... 5, 11, 24

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ....................... 28, 29

Morrison v. California,

291 U.S. 82 (1934) ............................................... 11

National Labor Relations Board v. Noel

Canning,

573 U.S. 513 (2014) ....................................... 28, 29

Perkins v. Elg,

307 U.S. 325 (1939) ............................................. 11

Rogers v. Bellei,

401 U.S. 815 (1971) ............................................. 10

State ex rel. Corbett v. Town of South

Norwalk,

77 Conn. 257 (1904) ............................................ 29

The Pocket Veto Case,

279 U.S. 655 (1929) ............................................. 28

The Schooner Exch. v. McFaddon,

11 U.S. (7 Cranch) 116 (1812)............................... 7

United States v. Rice,

17 U.S. (4 Wheat.) 246 (1819) ......................... 7, 20

United States v. Wong Kim Ark,

169 U.S. 649 (1898) ............ 2, 3, 6, 7, 9, 10, 11, 12,

13, 14, 15, 24, 25, 26, 28, 29

Utility Air Regulatory Group v.

Environmental Protection Agency,

573 U.S. 302 (2014) ................................... 6, 12, 35

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) .................. 4, 5, 19, 20, 21, 23,

26, 29, 31

Constitutional Provisions

U.S. Const. art. I, § 8. ........................................... 5, 24

U.S. Const. art. II, § 1 .............................................. 18

U.S. Const. art. II, § 3 .............................................. 18

U.S. Const. art. V........................................................ 6

U.S. Const. amend. XIV, § 1....................................... 8

U.S. Const. amend. XIV, § 5........................... 5, 24, 26

Statutes

Immigration and Nationality Act (INA),

66 Stat. 163 (1952) .................................... 3, 13, 14

Nationality Act of 1940, 54 Stat. 1137

(1940) ............................................................. 12, 13

8 U.S.C. § 1401(a) ............................... 3, 12, 13, 14, 26

8 U.S.C. § 1401(b) ............................................... 17, 25

8 U.S.C. § 1401(c) ..................................................... 14

8 U.S.C. § 1401(f) ...................................................... 14

8 U.S.C. § 1402 ......................................................... 25

8 U.S.C. § 1403 ......................................................... 25

8 U.S.C. § 1406 ......................................................... 25

8 U.S.C. § 1407 ......................................................... 25

Regulatory Provisions and Executive Orders

1 C.F.R. pt. 19 ........................................................... 22

1 C.F.R. § 19.2........................................................... 23

8 C.F.R. § 101.3......................................................... 15

8 C.F.R. § 1101.3....................................................... 15

22 C.F.R. § 79.137..................................................... 15

28 C.F.R. § 0.25(b) .................................................... 22

vii

Exec. Order No. 11,030, 3 C.F.R. 610

(1959–1963) ......................................................... 22

Exec. Order No. 14,160, 90 Fed. Reg. 8449

(Jan. 20, 2025) ................ 2, 4, 6, 10, 11, 16, 17, 18,

20, 22, 23, 26, 27, 28

Other Authorities

1 William Blackstone, Commentaries on

the Laws of England (1768) .................................. 7

Davis, Julie Hirschfeld, President

Wants to Use Executive Order to

End Birthright Citizenship, N.Y.

Times (Oct. 30, 2018),

https://www.nytimes.com/2018/10/30/

us/politics/trump-birthrightcitizenship.html ................................................... 17

Dellinger, Walter, Legislation Denying

Citizenship at Birth to Certain

Children Born in the United States,

19 Op. O.L.C. 340 (1995) ..................... 3, 15, 16, 23

Goldsmith, Jack & Bob Bauer, The

Trump Executive Orders as “Radical

Constitutionalism,” American

Enterprise Institute (Feb. 3, 2025),

https://www.aei.org/op-eds/thetrump-executive-orders-as-radicalconstitutionalism/................................................ 23

viii

House Committee on Immigration and

Naturalization, 76th Cong., Report

Proposing A Revision and

Codification of the Nationality Laws

of the United States, Part One:

Proposed Code With Explanatory

Comments (Comm. Print 1939) .......................... 13

House of Representatives Report No. 821365 (1952) .......................................................... 14

Kent, Andrew, Ethan J. Leib & Jed

Handelsman Shugerman, Faithful

Execution and Article II, 132 Harv.

L. Rev. 2111 (2019).............................................. 18

Manheim, Lisa & Kathryn A. Watts,

Reviewing Presidential Orders, 86 U.

Chi. L. Rev. 1743 (2019) ...................................... 18

Nelson, Caleb, Special Feature: Must

Administrative Officers Serve at the

President’s Pleasure?, NYU Law

Democracy Project (Sep. 29, 2025),

https://democracyproject.org/posts/

must-administrative-officers-serveat-the-presidents-pleasure .................................. 30

Rudalevige, Andrew The Contemporary

Presidency: Executive Orders and

Presidential Unilateralism, 42

Presidential Stud. Q. 138 (2012) ....................... 22

Scalia, Antonin & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) ............................................... 12

Savage, Charlie, Trump Sidelines

Justice Dept. Legal Office, Eroding

Another Check on His Power, N.Y.

Times (Apr. 4, 2025),

https://www.nytimes.com/2025/04/04/

us/politics/trump-office-of-legalcounsel-doj.html .................................................. 23

INTEREST OF AMICI CURIAE1

Originally founded in 2018 by lawyers and

jurists who served at the highest levels of government

in previous Republican Administrations, amicus

Society for the Rule of Law Institute is a nonpartisan,

nonprofit organization dedicated to bringing a

traditionally conservative legal perspective to the

defense of the Constitution and the rule of law.

Individual amici are former White House

lawyers, senior government officials, federal judges,

governors, and members of Congress who were

appointed or nominated by Republican presidents, or

who were elected as Republicans. Amici include senior

officials who served in one or more of the

Administrations of Presidents Nixon, Ford, Reagan,

George H.W. Bush, George W. Bush, and Trump, in

positions that included Counsel to the President and

other Executive Office of the President lawyers,

Department of Justice leaders, Executive Branch

agency heads and senior appointees, and independent

agency officials. Amici also include retired federal

judges appointed by Republican presidents, as well as

former governors and members of Congress elected as

Republicans.

The full list of amici is set forth in the Appendix

to this brief. No counsel for a party to this case

authored this brief in whole or in part, no party or

counsel for a party contributed money that was

intended to fund preparing or submitting this brief,

and no person other than amici or their counsel

contributed money that was intended to fund the

preparation or submission of this brief.

Collectively, amici have decades of government

experience spanning the last fifty years. Their interest

in this case lies in properly construing and preserving

core principles of our Constitution that guided amici’s

government service, including the Take Care Clause

and the separation of powers.

SUMMARY OF ARGUMENT

Executive Order 14,160 rewrites settled law in

defiance of the Fourteenth Amendment, this Court’s

prior rulings, the enactments of Congress, and prior

executive practice. The Order is a brazen attempt by

the President to assert power that the Constitution

denies him and instead entrusts to the other two

branches. While Presidents have become increasingly

powerful Executives, the Constitution still does not

permit them to remake settled law by personal diktat.

1. This Order does not fill an interpretive gap.

Nor could it, for there is no gap to fill. As this Court

held 128 years ago in United States v. Wong Kim Ark,

169 U.S. 649, 693 (1898), the Fourteenth Amendment

“affirms the ancient and fundamental rule of

citizenship by birth within the territory” with only

“the exceptions or qualifications (as old as the rule

itself)” pertaining to the children of foreign diplomats

and enemies, and the “single additional exception”

relating to Indian tribes. This Court has repeatedly

reaffirmed that settled legal principle, including as to

the specific populations at issue here. See, e.g., INS v.

Rios-Pineda, 471 U.S. 444, 446 (1985) (noting that the

U.S.-born child of aliens who illegally entered the

United States “was a citizen of this country”).

Congress also has repeatedly codified this

understanding of the Fourteenth Amendment, most

recently in the Immigration and Nationality Act

(INA), ch. 477, § 301(a), 66 Stat. 163, 235–36 (1952)

(codified as amended at 8 U.S.C. § 1401(a)). In

enacting § 1401(a), Congress unambiguously adopted

the reasoning of Wong Kim Ark. Read as a whole,

moreover, the INA establishes a statutory scheme that

rests upon the principle of birthright citizenship. The

Order here thus defies the Constitution itself, this

Court’s prior rulings, and Congress’s statutory

enactments.

The Order also radically breaks with prior

executive

practice.

For

example,

executive

immigration regulations and guidance have long made

clear that children born in the United States are

birthright citizens, regardless of their parents’

immigration status. Likewise, in appearances before

this Court, prior Solicitors General have repeatedly

conceded the citizenship of U.S.-born children of aliens

illegally or temporarily present in the United States.

And the Office of Legal Counsel (OLC) has concluded

that “apart from . . . extremely limited exceptions,

there can be no question that children born in the

United States of aliens are subject to the full

jurisdiction of the United States.” Legislation Denying

Citizenship at Birth to Certain Children Born in the

United States, 19 Op. O.L.C. 340, 342 (1995)

(hereinafter Dellinger Opinion). As stated in that OLC

opinion by Assistant Attorney General Dellinger,

proposed congressional legislation that “purports to

deny citizenship by birth to persons within the

jurisdiction of this country is unconstitutional on its

face.” Id. at 341. So too is the Executive Order here.

2. This is not, then, a case in which the

President exercises his “authority and responsibility”

to answer “questions left open by Congress that arise

during [a] law’s administration.” Util. Air Regul.

Group v. EPA, 573 U.S. 302, 327 (2014). Rather than

filling an interpretive gap, Executive Order 14,160

makes new law. But this is a power denied to the

President by our Constitution. By attempting to make

law, rather than interpret it, the President disregards

his duty to “take Care that the Laws be faithfully

executed” and violates his oath to uphold the

Constitution. U.S. Const. art. II, §§ 1, 3. “In the

framework of our Constitution, the President’s power

to see that the laws are faithfully executed refutes the

idea that he is to be a lawmaker.” Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).

That the President has acted as a “lawmaker”

here is shown by his disregard for existing law. It is

also shown by the language and structure of the Order

itself, which—like the order at issue in Youngstown—

bears features “like that many of many statutes.” Id.

at 588. By “direct[ing] that a presidential policy be

executed in a manner prescribed by the President,” id.,

the Order reads like an exercise of “unchecked

Presidential policymaking.” Learning Resources, Inc.

v. Trump, No. 24-1287, slip op. at 10 (U.S. Feb. 20,

2026) (Roberts, C.J.). In issuing the Order, moreover,

the President did not follow any of the internal

executive order review processes in place since 1933.

It is therefore unsurprising that the Order did not so

much as mention, much less seek to distinguish, any

of the unbroken authorities that it contravened. This

is not simply a procedural default: it reflects that the

Order neither engages with nor faithfully executes the

law, but is instead the President’s ipse dixit

promulgation of new law.

3. Issuance of this Order not only exceeds the

President’s own powers: it also violates the

Constitution’s separation of powers twice over by

encroaching upon the authority of Congress and of this

Court. Congress—not the President—possesses the

exclusive power “[t]o establish an uniform Rule of

Naturalization.” U.S. Const. art. I, § 8, cl. 4. Further,

Section 5 of the Fourteenth Amendment declares that

Congress—not the President—“shall have power to

enforce, by appropriate legislation, the provisions of

this article,” including the Citizenship Clause. U.S.

Const. amend. XIV, § 5. Finally, it is the province of

this Court—not the President—“to say what the law

is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803).

Youngstown established that, even in matters

of national security, executive power reaches “its

lowest ebb” when the President acts in direct conflict

with the express or implied will of Congress. 343 U.S.

at 637 (Jackson, J., concurring). But in this Order, that

power strikes rock bottom. Here, the President has

acted not only without any constitutional authority of

his own, but also in direct conflict with the express will

of Congress and the rulings of this Court. This case

thus asks whether the President can arrogate to

himself both the legislative power to make the law and

the judicial power to interpret the law. Thus, the

danger to our Republic lies not just in the result here,

but in the method by which it was achieved. The Order

provides a blueprint by which any President may

purport to “reinterpret”—but really rewrite—any

constitutional provision or statute by Executive Order,

no matter how this Court had previously interpreted

the law. Having imposed his will by fiat, the President

can then dare this Court or Congress to try to catch up

with, and seek to limit, the new law he has made.

That is what happened here. Executive Order

14,160 purports to establish a new rule of American

citizenship. But amid the ashes of the Civil War and

in the wake of Dred Scott v. Sandford, 60 U.S. (19

How.) 393 (1857), the Framers of the Fourteenth

Amendment proposed—and the American people

ratified—a contrary precept: the “ancient and

fundamental rule of citizenship by birth within the

territory” that has since formed a cornerstone of our

constitutional order. Wong Kim Ark, 169 U.S. at 693.

single

official

may

rewrite

the

Constitution—not even the President. See U.S. Const.

art. V. Nor may he rewrite a statute. See Clinton v.

City of New York, 524 U.S. 417, 438 (1998). This Court

should reaffirm these fundamental principles by

rejecting the President’s lawless claim to sweeping

authority to rewrite our Constitution and our laws.

ARGUMENT

I. Executive Order 14,160 flagrantly contradicts

the settled meaning of the Fourteenth

Amendment.

Executive Order 14,160 conflicts with the text

of the Citizenship Clause of the Fourteenth

Amendment, this Court’s prior rulings regarding that

Clause, Congress’s subsequent enactments, and the

actions of all prior Executives in compliance with those

rulings and enactments. For more than a century, this

Court, Congress, and presidents of both parties have

understood and agreed that American citizenship

depends on birth, not blood. The Order accordingly

does not “fill gaps” in existing law because there are

no gaps to fill. Neither the Court, nor Congress, nor

prior Executives have “left open” the meaning of the

Citizenship Clause. Util. Air Regul. Grp., 573 U.S. at

327. The consistent practice of all three branches

demonstrates that, in this case, both constitutional

and statutory law foreclose “the exercise of any

discretion” by the President: “all that is shut out by the

direct and positive command of the law.” Kendall v.

United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 614

(1838) (emphasis added).

A. Through the Fourteenth Amendment,

the American people adopted the jus soli

rule.

English common law treated all people born

within the territory of the sovereign as natural-born

citizens. See 1 William Blackstone, Commentaries on

the Laws of England (1768) at *354; see also id. at

*361–62 (“The children of aliens, born here in

England, are, generally speaking, natural-born

subjects, and entitled to all the privileges of such.”).

The common-law rule carried with it only limited

exceptions, which covered circumstances like the

children of foreign diplomats and children born to

enemy forces during hostile occupation. See Wong Kim

Ark, 169 U.S. at 682–86; see also The Schooner Exch.

v. McFaddon, 11 U.S. (7 Cranch) 116, 136–47 (1812)

(Marshall, C.J.); United States v. Rice, 17 U.S. (4

Wheat.) 246, 254–55 (1819) (Story, J.).

Far from disrupting the jus soli rule, the

Reconstruction

Congress’s

passage—and

the

American people’s ratification—of the Fourteenth

Amendment enshrined that rule to repudiate Dred

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

Deviating from the (even by then) long-settled

American rule of birthright citizenship, Dred Scott

infamously denied the citizenship of free Black people

born in the United States. In dissent, Justice Curtis

pointed out the departure from jus soli, stating:

At the Declaration of Independence, and

ever since, the received general doctrine

has been, in conformity with the common

law, that free persons born within either

of the colonies were subjects of the King;

that by the Declaration of Independence,

and the consequent acquisition of

sovereignty by the several States, all

such persons ceased to be subjects, and

became citizens of the several States . . . .

Id. at 576 (emphasis added).

The American people rejected Dred Scott on the

battlefields of the Civil War, in the halls of the

Reconstruction Congress, and across the states that

ratified the Fourteenth Amendment. The resulting

Citizenship Clause thus unambiguously settled that

“[a]ll persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States.” U.S. Const. amend. XIV, § 1, cl. 1.

The Framers of the Amendment sought “to put

citizenship beyond the power of any governmental

unit to destroy.” Afroyim v. Rusk, 387 U.S. 253, 263

(1967) (emphasis added). They unequivocally achieved

this objective, making clear that all children born

within the United States become American citizens—

with only the limited exceptions previously recognized

at common law. The President’s unilateral attempt to

redefine citizenship by Executive Order thus plainly

defies the Fourteenth Amendment.

B. The Supreme Court confirmed this

interpretation

the

Fourteenth

Amendment in Wong Kim Ark.

In Wong Kim Ark, this Court confirmed that the

Fourteenth Amendment “affirms the ancient and

fundamental rule of citizenship by birth within the

territory” with only the “exceptions or qualifications

(as old as the rule itself)” for children of foreign

diplomats and occupying enemies and the “single

additional exception” relating to Indian Tribes. 169

U.S. at 693. The Court found the evidence supporting

this construction of “subject to the jurisdiction thereof”

to be “irresistibl[e],” including Secretary of State

Daniel Webster’s description of the United States’s

jurisdiction:

[I]ndependently of a residence with

intention to continue such residence;

independently of any domiciliation;

independently of the taking of any oath

of allegiance or of renouncing any former

allegiance, it is well known that, by the

public law, an alien, or a stranger born,

for so long a time as he continues within

the dominions of a foreign government,

owes obedience to the laws of that

government, and may be punished for

treason, or other crimes, as a native-born

subject might be . . . .

Id. at 693–94 (quoting H.R. Exec. Doc. No. 32-10, at 4

(1851)).

Chief Justice Fuller’s dissent reinforces that

Wong Kim Ark rejected exactly the radical

reinterpretation of the Citizenship Clause that

Executive Order 14,160 seeks to impose. Fuller

criticized the majority for applying the English

common-law rule, under which “allegiance sprang

from the place of birth regardless of parentage and

supervened at the moment of birth, [so] the inquiry

whether the parents were permanently or only

temporarily within the realm was wholly immaterial.”

Id. at 718 (Fuller, C.J., dissenting) (emphasis added).

By holding, over Fuller’s dissent, that the Fourteenth

Amendment affirmed this “ancient and fundamental”

common-law rule, the six-justice Wong Kim Ark

majority long ago made clear that an Order like the

one at issue here would be, and is, unconstitutional.

This Court has repeatedly followed Wong Kim

Ark, building a substantial body of precedent on which

all three branches have relied. See, e.g., United States

ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 73

(1957) (noting that a U.S.-born child of aliens who

exceeded their “limited lawful stay” was “of course, an

American citizen by birth”); INS v. Rios-Pineda, 471

U.S. 444, 446 (1985) (noting that a U.S.-born child of

aliens who illegally entered the United States “was a

citizen of this country”).2 The Court has thus

See also, e.g., Agosto v. INS, 436 U.S. 748, 759–

60 (1978) (holding that a petitioner who claimed birth

in the United States to Italian parents had adequately

stated a claim to United States citizenship in spite of

“confusion and uncertainty surrounding” his

parentage); Rogers v. Bellei, 401 U.S. 815, 817 (1971)

(noting that a plaintiff’s mother was “born in

Philadelphia . . . and thus [she] was a nativeborn United States citizen” without any reference to

her parentage); INS v. Errico, 385 U.S. 214, 215 (1966)

(noting that a child born in the United States to aliens

repeatedly exercised its “emphatic[] . . . province and

duty . . . to say what the law is.” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803). Executive Order

14,160 unconstitutionally invades that province,

casting aside 128 years of precedents without so much

as a suggestion that they even exist.3

admitted based on false representations “acquired

United States citizenship at birth”); Hirabayashi v.

United States, 320 U.S. 81, 96 (1943) (explaining that

“approximately two-thirds” of the persons of Japanese

descent in the western United States during World

War II were “citizens because born in the United

States” (emphasis added)); Perkins v. Elg, 307 U.S.

325, 328 (1939) (describing Wong Kim Ark as holding

that “a child born here of alien parentage becomes a

citizen of the United States” and applying that rule);

Morrison v. People of State of California, 291 U.S. 82,

85 (1934) (“A person of the Japanese race is a citizen

of the United States if he was born within the United

States.”); Mackenzie v. Hare, 239 U.S. 299, 306 (1915)

(explaining that the fact that “under the Constitution

of the United States every person born in the United

States is a citizen thereof . . . must be conceded”).

The Order defies this Court’s precedents in

another respect as well. The Government seeks to

justify the Order—after the fact—by asserting a novel

distinction between “political jurisdiction”—which the

Government claims temporarily-present aliens do not

fall within—and other forms of jurisdiction, including

criminal jurisdiction—to which the Government

claims such aliens are nonetheless subject. Pet’r. Br.

at 14–15. But this would require the phrase “subject

to the jurisdiction thereof” to bear two distinct

meanings that the Constitution nowhere expresses.

C. Congress codified Wong Kim Ark—twice.

Congressional enactments separately foreclose

the President’s purported new exclusions from

birthright citizenship. Congress has adopted the Wong

Kim Ark Court’s interpretation of the Fourteenth

Amendment twice: first in the Nationality Act of 1940

and then in the 1952 INA, which amended and

reorganized other provisions of federal immigration

and citizenship law. Both statutes declared, in

identical language, that “[t]he following shall be

nationals and citizens of the United States at

birth: . . . a person born in the United States, and

subject to the jurisdiction thereof,” unmistakably

following the Citizenship Clause. Immigration and

Nationality Act § 301(a) (emphasis added) (codified at

8 U.S.C. § 1401(a)); Nationality Act of 1940 § 201(a).

The Court has long presumed that Congress

intends to incorporate prior Supreme Court

interpretations of the language it later enacts. See

Lorillard v. Pons, 434 U.S. 575, 580–81 (1978); see also

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 322 (2012) (“If a statute

uses words or phrases that have already received

authoritative construction by the jurisdiction’s court of

last resort . . . they are to be understood according to

that construction.”). In addition, a “statutory term is

generally presumed to have its common-law meaning,”

Evans v. United States, 504 U.S. 255, 259 (1992)

Even more critically, it rests on a reading of those

words contrary to all prior decisions of this Court that

have found “political” and “criminal” jurisdiction to be

inextricably linked. See Wong Kim Ark, 169 U.S. at

682-86.

(citation omitted). And here, “subject to the

jurisdiction thereof” had a clear “common-law

meaning,” as set out in Wong Kim Ark and other

decisions of this Court.

The statutory backgrounds of both enactments

confirm that Congress intended to adopt Wong Kim

Ark and reaffirm jus soli. The Nationality Act of 1940

enacted into law draft legislation proposed by an

interagency committee convened by President

Roosevelt. See H. Comm. on Immigration and

Naturalization, 76th Cong., Report Proposing A

Revision and Codification of the Nationality Laws of

the United States, Part One: Proposed Code With

Explanatory Comments, at iii (Comm. Print 1939).

The report recommended the language that later

became 8 U.S.C. § 1401(a), explaining it as “in effect a

statement of the common-law rule, which has been in

effect in the United States from the beginning of its

existence as a sovereign state.” Id. at 7. The report

then explained that this “accords with the provision in

the [F]ourteenth [A]mendment,” as interpreted in

Wong Kim Ark. Id. Finally, the report noted that

although Wong Kim Ark’s parents were “domiciled in

the United States . . . the same rule [of birthright

citizenship] is also applicable to a child born in the

United States of parents residing therein

temporarily.” Id. (emphasis added).

The 1952 INA—which reenacted the 1940 Act’s

citizenship provision without alteration—expressed

the same understanding. The House Judiciary

Committee’s report on the bill, for example, once again

explicitly endorsed both Wong Kim Ark and jus soli.

See H.R. Rep. No. 82-1365, at 25 (1952); see also Br.

Amici Curiae of Citizenship Law Scholars at 22–24.

Likewise, the language and structure of the

nationality provisions of the INA make clear that

Congress understood and built upon jus soli as the

fundamental principle of U.S. citizenship. Thus, for

instance, the INA does not automatically confer U.S.

citizenship on all children born abroad of an American

citizen parent. 8 U.S.C. § 1401(c)–(e), (g)–(h). In

contrast, the INA does grant citizenship to “a person

of unknown parentage found in the United States

while under the age of five years, until shown, prior to

his attaining the age of twenty-one years, not to have

been born in the United States.” 8 U.S.C. § 1401(f).

The INA thus incorporates the reasoning of Wong Kim

Ark and the principle of jus soli . The President’s Order

is therefore doubly illegal—it violates not only the

Constitution, but also Congress’s considered decision

to provide for jus soli by statute.

D. The Executive Branch has respected

Wong Kim Ark for decades.

The Executive Branch has consistently

accepted and enforced Wong Kim Ark’s interpretation

of “subject to the jurisdiction thereof.” Indeed, as

shown above, by proposing the language that became

§ 1401(a), the Executive expressly adopted the Court’s

ruling on the meaning of the Citizenship Clause. See

supra Part I.C. And the Department of State has

issued passports based on jus soli since 1896—long

before § 1401 and even before Wong Kim Ark. See U.S.

Dep’t of State, Regulations Prescribed for the Use of

the Consular Service, ¶ 137 (1896); U.S. Dep’t of State,

Regulations Governing the Consular Service of the

United States, ¶ 137 (1926); 22 C.F.R. § 79.137 (1938);

see also Br. Amici Curiae of Citizenship Law Scholars

at 10–11.

Similarly,

immigration

regulations

and

Executive Branch guidance—under Presidents of both

parties—have long recognized the citizenship of

children born in the United States regardless of their

parents’ immigration status. For example, State

Department regulations explicitly state that a “child

born in the United States is born subject to the

jurisdiction of the United States and is a United States

citizen if the parent is not a ‘foreign diplomatic

officer.’” 8 C.F.R. § 1101.3 (1982) (emphasis added);

see also 8 C.F.R. § 101.3(b) (stating the same as a

regulation of the Department of Homeland Security).

The Foreign Affairs Manual (FAM)—the basic

organizational directive of the State Department—has

also explicitly embraced the Wong Kim Ark Court’s

reading of the Fourteenth Amendment. See 8 FAM

301.1-1

(“Pursuant

[Wong

Kim

Ark] . . . [a]cquisition of U.S. citizenship generally is

not affected by the fact that the parents may be in the

United States temporarily or illegally.”); see also Br.

Amici Curiae of Citizenship Law Scholars at 14 & n.8

(discussing State Department opinions on individual

citizenship issues).

The Department of Justice has long taken the

same position. The Office of Legal Counsel, for

instance, maintained in a public opinion that “apart

from . . . extremely limited exceptions, there can be no

question that children born in the United States of

aliens are subject to the full jurisdiction of the United

States.” Legislation Denying Citizenship at Birth to

Certain Children Born in the United States, 19 Op.

O.L.C. 340, 342 (1995) (“Dellinger Opinion”). That

opinion was issued in response to draft legislation

that, like Executive Order 14,160, would have denied

birthright citizenship to children born of parents who

were not citizens or lawful permanent residents. Id. at

341. The opinion concluded that such legislation would

be “unconstitutional on its face” and remarked that it

would “flatly contradict our constitutional history and

our constitutional traditions.” Id. The opinion has

never been publicly rescinded by any of the

Administrations of both parties that have followed,

and even now remains available on the Department of

Justice website. See Dellinger Opinion, available at

https://www.justice.gov/olc/opinion/legislationdenying-citizenship-birth-certain-children-bornunited-states (last visited Feb. 25, 2026). Its

conclusions apply with equal force here: the Order is

“unconstitutional on its face.”

Further, in numerous submissions to this

Court, prior Solicitors General—under both

Republican and Democratic Administrations—have

repeatedly conceded the citizenship of children born in

the United States to illegally or temporarily present

aliens. See, e.g., Brief for the Respondent, U.S. ex rel.

Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957), 1957

WL 87025, at *7 (recognizing the birthright

citizenship of a U.S.-born child of alien seamen); Brief

for the Petitioner, INS v. Errico, 385 U.S. 214 (1966),

1966 WL 100686, at *5–6 (acknowledging the

citizenship of a child born to aliens admitted through

misrepresentation); Brief for the Petitioner, INS v.

Rios-Pineda, 471 U.S. 444 (1985), 1985 WL 669850, at

*4–5 (accepting the birthright citizenship of a child

born to alien parents who entered the United States

without inspection).4 Even the first Trump

administration ultimately declined to violate the

sacrosanct command of the Citizenship Clause—

despite President Trump stating, on the eve of the

2018 midterm elections, that he would issue an

executive order ending birthright citizenship. Julie

Hirschfeld Davis, President Wants to Use Executive

Order to End Birthright Citizenship, N.Y. Times (Oct.

30,

2018),

https://www.nytimes.com/2018/10/30/us/politics/trum

p-birthright-citizenship.html.

II. By issuing Executive Order 14,160, the

President violated his oath of office and failed to

faithfully execute the laws.

As shown above, Executive Order 14,160 defies

the plain text of the Fourteenth Amendment, this

Court’s authoritative interpretation of that text,

subsequent congressional codifications of that

interpretation, and prior executive precedents and

regulations. By so doing, this Order not only violates

entrenched constitutional and statutory rights, but

also represents an unconstitutional—and dangerous—

arrogation of power that exceeds the President’s

authority and breaches his constitutional duties.

The exception to constitutional birthright

citizenship for Indian tribes has been filled by statute.

See 8 U.S.C. § 1401(b).

A. Executive Order 14,160 constitutes

lawmaking, not execution of the laws.

On January 20, 2025, President Trump swore—

for the second time—an oath to “faithfully execute the

Office of the President” and to “preserve, protect and

defend the Constitution.” U.S. Const. art. II, § 1, cl. 8.

By taking that Oath, the President took on a duty to

faithfully execute the laws of the United States—a

duty so foundational to our system of government that

the Framers saw fit to repeat it in constitutional text.

See U.S. Const. art. II, § 1, cl. 8 (“[H]e shall take the

following Oath . . . I will faithfully execute the Office

of the President”); id. at art. II, § 3 (“[H]e shall take

Care that the Laws be faithfully executed.”). The

President’s duty to “take Care” entails “limitation,

subordination, and proscription.” Andrew Kent, Ethan

J. Leib & Jed Handelsman Shugerman, Faithful

Execution and Article II, 132 Harv. L. Rev. 2111,

2182–83 (2019). The Take Care Clause both defines

and limits presidential power. It constrains the

President’s discretion and requires him to respect “any

applicable statutory or constitutional limits.” Lisa

Manheim & Kathryn A. Watts, Reviewing

Presidential Orders, 86 U. Chi. L. Rev. 1743, 1763

(2019). In brief, the Oath and Take Care Clause make

clear that the President is constrained by law, not just

his “own morality.”

As shown above, Executive Order 14,160

attempts to jettison the longstanding rule—enshrined

in the Fourteenth Amendment—that persons born on

U.S. soil are birthright citizens. The Order purports to

replace that constitutional rule of jus soli with a new

one devised by the President. The “policy of the United

States,” the Order claims, is now to deny citizenship to

persons born of unlawfully present or temporarily

resident aliens. Exec. Order No. 14,160, 90 Fed. Reg.

at 8449.

In essence, the Order attempts to seize for the

President the power to decide who is a citizen of the

United States. The Order cites “the authority vested

in [the President] by the Constitution and the laws of

the United States of America.” Id. But beyond this rote

language, neither the Order nor the President’s

submissions before this Court furnish any authority—

whether from the Constitution or federal statutes—

granting the power the Order claims. Neither the

Constitution nor the laws of the United States grant

the President the interpretive power he seeks to

exercise. Congress, after all, “makes policy” for the

United States by legislating. The Constitution

requires President Trump to follow such policy

faithfully. It does not allow him to alter it by fiat.

To be sure, the President’s duty to execute the

laws entails an “authority and responsibility” to

answer “questions left open by Congress that arise

during the law’s administration.” Util. Air Regul. Grp.

v. EPA, 573 U.S. 302, 327 (2014). But as shown above,

there are no questions regarding birthright citizenship

“left open” by the Fourteenth Amendment, this Court’s

rulings, and Congress’s enactments regarding

birthright citizenship. Moreover, even where the Take

Care Clause requires such gap filling, “it does not

include a power to revise clear statutory terms” or

rewrite the Constitution. Id.

As this Court held in Youngstown Sheet & Tube

Co. v. Sawyer, “[i]n the framework of our Constitution,

the President’s power to see that the laws are

faithfully executed refutes the idea that he is to be a

lawmaker.” 343 U.S. 579, 587 (1952). This Court has

reaffirmed time and again that “there is no provision

in the Constitution that authorizes the President to

enact, to amend, or to repeal statutes.” Clinton v. City

of New York, 524 U.S. 417, 438 (1998). Needless to say,

the Constitution no more permits the President to

amend or repeal its own provisions.

The Order thus violates the Take Care Clause

in multiple respects. Far from filling gaps in existing

law, it seeks to make new law—which the Order calls

“policy.” And the law it attempts to make directly

offends the Fourteenth Amendment, this Court’s prior

rulings regarding that Amendment, and Congress’s

separate enactments.

B. The Order’s language and structure

reinforce that it impermissibly seeks to

make new law.

Setting aside its outright defiance of all prior

law, the Order’s language and structure themselves

demonstrate that the President seeks to act as a

“lawmaker,” thereby usurping Congress’s exclusive

authority. Youngstown, 343 U.S. at 587–88.

As was the case in Youngstown, the first section

of the Order, “like that of many statutes, sets out

reasons why the President believes certain policies

should be adopted.” Id. at 588. It explains that “United

States citizenship is a priceless and profound gift”

that, in the President’s view, “does not automatically

extend” to certain U.S.-born persons. Exec. Order No.

14,160, 90 Fed. Reg. at 8449. Section 2 of the Order

directs executive agencies to apply this new

presidential policy definition when administering

federal law. In doing so, it “proclaims th[is] polic[y] as

rules of conduct to be followed.” Youngstown, 343 U.S.

at 588. Section 3 then mimics a statute by authorizing

senior executive officials, including the Secretary of

State, the Attorney General, and the Secretary of

Homeland Security, to “take all appropriate

measures” to conform departmental regulations and

policies with the Order. Exec. Order No. 14,160, 90

Fed. Reg. at 8449–50. In other words, it directs

executive branch officials to execute the law as

provided by the President, not Congress.

Similarly, like legislation that makes

prospective law, section 2(b) of the Order announces

an effective date—it applies only to children born

thirty days after the date of the Order. See id. But

announcements of longstanding constitutional

principles are not typically subject to implementation

periods stated in the language of legislation. If the

Order solely interpreted and executed existing law, it

would apply immediately. But because it changes the

law, to reflect a “policy” unilaterally determined by the

President, the Order delays its effects for thirty days.

In short, the Order adopts new presidential

policy that rejects existing law in favor of a prospective

rule of conduct mandating compliance; it then

authorizes “a government official to promulgate

additional rules and regulations consistent with the

policy proclaimed.” Youngstown, 343 U.S. at 588.

These

collective

characteristics,

Youngstown

instructs, are evidence of an unconstitutional

usurpation of Congress’s legislative function. A

President acts unconstitutionally when he issues a

presidential order that “does not direct that a

congressional policy be executed in a manner

prescribed by Congress” but instead “directs that a

presidential policy be executed in a manner prescribed

by the President.” Id.; see also Learning Resources Inc.

v. Trump, No. 24-1287, slip op. at 10 (U.S. Feb. 20,

2026) (Roberts, C.J.) (declining to read a statute to

replace

“longstanding

executive-legislative

collaboration over [] policy with unchecked

Presidential policymaking”).

C. The process through which the Order

was issued also shows that it is not a

faithful execution of the laws.

Beyond its text and structure, the procedure by

which the Order was issued illustrates that the

President failed to uphold his oath and duty to

faithfully execute the laws. Since 1933, Presidents

have followed an internal review process for preparing

and issuing executive orders. See Andrew Rudalevige,

The Contemporary Presidency: Executive Orders and

Presidential Unilateralism, 42 Presidential Stud. Q.

138, 148–49 (2012). The most recent update to the

executive-order process, issued in 1962, has guided

both Democratic and Republican Administrations

alike. See Exec. Order No. 11,030, 3 C.F.R. 610 (1959–

1963); see also 1 C.F.R. pt. 19 (2023). Under this

standard process, the Director of the Office of

Management and Budget (OMB) first reviews a draft

order, including an explanation of its nature, purpose,

background, and effect, and its relationship to any

other laws. 1 C.F.R. § 19.2(a). If the OMB Director

approves the proposed order, the Attorney General

and the Office of Legal Counsel (OLC) review the

order’s form and legality. 1 C.F.R. § 19.2(b); 28 C.F.R.

§ 0.25(b). This longstanding, two-layered review helps

to ensure that executive action faithfully executes the

laws enacted by Congress and abides by the

Constitution that the President has sworn to uphold.

Publicly available information confirms what

the timing of the Order itself suggests: the Trump

Administration

ignored

these

longstanding

procedures when issuing Executive Order 14,160. The

New York Times has reported that President Trump’s

transition team omitted Department of Justice vetting

of day-one executive orders—including Executive

Order 14,160. Charlie Savage, Trump Sidelines

Justice Dept. Legal Office, Eroding Another Check on

His Power, N.Y. Times (Apr. 4, 2025),

https://www.nytimes.com/2025/04/04/us/politics/trum

p-office-of-legal-counsel-doj.html. And, as shown

above, the Order directly contradicts a previous OLC

opinion without explanation, suggesting OLC could

not have reviewed it for form or legality. Jack

Goldsmith & Bob Bauer, The Trump Executive Orders

as “Radical Constitutionalism,” Am. Enterprise Inst.

(Feb. 3, 2025), https://www.aei.org/op-eds/the-trumpexecutive-orders-as-radical-constitutionalism/;

cf.

Dellinger Opinion, 19 Op. O.L.C. at 342.

Generations of Presidents and their closest

legal advisors designed the standard executive-order

review process to identify and assess existing Supreme

Court decisions, congressional enactments, and

executive practices that might run counter to a

proposed order. Plainly, that vetting process did not

occur here. The President’s decision to abrogate this

nearly century-long norm of internal legal review

confirms that, in issuing the Order, the President

sought to change, or ignore, the law, not to faithfully

execute it.

III.

Executive Order 14,160

separation of powers.

violates

the

In issuing the Order, the President has not only

exceeded his own constitutional powers: he has also

violated the separation of powers twice over by

encroaching upon the constitutional powers of both

Congress and this Court. Youngstown established

that, even in matters of national security, executive

power reaches “its lowest ebb” when the president acts

in direct conflict with the express or implied will of

Congress. 343 U.S. at 637 (Jackson, J., concurring).

But in this Order, that power hits rock bottom: for

here, the President has acted both without any

constitutional authority of his own and in direct

conflict with the express will of Congress and the

rulings of this Court.

While Congress cannot, of course, contravene

the Fourteenth Amendment’s establishment of

birthright citizenship, the Constitution grants

Congress—not the President—exclusive power “[t]o

establish an uniform Rule of Naturalization.” U.S.

Const. art. I, § 8, cl. 4. Section 5 of the Fourteenth

Amendment declares that Congress—not the

President—“shall have power to enforce, by

appropriate legislation, the provisions of this article.”

U.S. Const. amend. XIV, § 5. And it is the province of

this Court, not the President, “to say what the law is.”

Marbury, 5 U.S. (1 Cranch) at 177. The Order ignores,

and doubly offends, this careful allocation of power

under the Constitution.

A. The Order directly conflicts with the

express will of Congress.

The Citizenship Clause sets the constitutional

baseline for birthright citizenship without abrogating

Congress’s Article I power over the naturalization of

those not entitled to birthright citizenship. It declared

“existing rights and affirm[ed] . . . existing law . . . as

to everything relating to the acquisition of citizenship

by facts occurring within the limits of the United

States.” Wong Kim Ark, 169 U.S. at 688. At the same

time, it left naturalization “to be regulated, as it had

always been, by [C]ongress in the exercise of the power

conferred by the [C]onstitution.” Id. Longstanding

precedent affirms that the Constitution vested

Congress alone with the power to set the terms of

naturalization. More than two hundred years ago, this

Court declared: “That the power of naturalization is

exclusively in [C]ongress does not seem to be, and

certainly ought not to be, controverted . . . .” Chirac v.

Lessee of Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817).

After Wong Kim Ark, this Court reasserted that “[t]he

[C]onstitution has conferred on [C]ongress the right to

establish a uniform rule of naturalization, and this

right is evidently exclusive, and has always been held

by this [C]ourt to be so.” Boyd v. Nebraska ex rel.

Thayer, 143 U.S. 135, 160 (1892).

The Fourteenth Amendment also expressly

gives Congress alone the “power to enforce” its

protections—including the Citizenship Clause—“by

appropriate legislation.” U.S. Const. amend. XIV, § 5.

This confirms the legislative branch’s exclusive

province over the “policy” governing United States

citizenship beyond the constitutional floor. And

Congress has repeatedly exercised its authority to

extend citizenship to groups not understood to be

covered by the Citizenship Clause. See, e.g., 8 U.S.C.

§ 1401(b) (providing citizenship to members of Indian

tribes); 8 U.S.C. § 1402 (providing citizenship to

persons born in Puerto Rico).5

Because the Constitution assigns Congress the

sole authority to set the terms of naturalization and to

extend (but not limit) the Citizenship Clause’s

baseline of birthright citizenship, the President may

not impose alternative requirements for either form of

citizenship. Just as the President possesses no

concurrent power to establish rules of naturalization,

he lacks unilateral authority to alter the statutory

meaning of citizenship.

Congress enacted § 1401(a) in order to codify

the understanding of birthright citizenship articulated

in Wong Kim Ark. But even putting Congress’s intent

to the side, the language and structure of § 1401 as a

whole establish jus soli as the central principle of

American citizenship. See supra Part I.C. The

President’s Order seeks not to execute § 1401’s settled

statutory definition but to unilaterally supplant it.

But when his power is at its lowest ebb—or, as here,

nonexistent—the President can neither unilaterally

impose citizenship standards incompatible with

Congress’s settled definition nor seize Congress’s

exclusive power to define citizenship for himself.

Executive Order 14,160 reflects an even more

aggressive form of presidential overreach than the

Congress has also provided statutory birthright

citizenship to certain persons born in the Canal Zone,

8 U.S.C. § 1403(a), the Republic of Panama, id. at

§ 1403(b), the U.S. Virgin Islands, id. at § 1406, and

Guam, id. at § 1407.

Court rejected in Youngstown. Unlike President

Truman’s steel-seizure order, this Order does not

operate at the margins of statutory silence or

expressly delegated emergency authority. It attempts

to override a settled statutory rule enacted under an

exclusively legislative power.

Justice Jackson warned in Youngstown that a

“[p]residential claim to a power at once so conclusive

and preclusive must be scrutinized with caution, for

what is at stake is the equilibrium established by our

constitutional system.” 343 U.S. at 638 (Jackson, J.,

concurring). Even in the context of a national

emergency prompted by world war, the Youngstown

Court refused to allow the President to displace clear

congressional will. Then, as now, the President was

required to act “under the law,” not in violation of it.

Id. at 655.

Jackson’s warning applies with special force

today. Executive Order 14,160 seeks to override

Congress’s law to redefine the bounds of the most

fundamental aspect of American personhood:

citizenship. But the President cannot simply dictate a

different rule because he disagrees with the one

Congress enacted. Sustaining such executive

usurpation would effectively disable Congress from

exercising its express constitutional authority over

citizenship and permit the President to vest himself

with legislative authority at will.

The President has no legislative power to

override or modify the plain meaning of a statute. See

Clinton, 524 U.S. at 438. In seeking to deny citizenship

to children born in the United States and subject to

the jurisdiction thereof—that is, to Americans—the

Order unconstitutionally conflicts with clear

congressional will.

B. The Order further undermines the

separation of powers by encroaching on

this Court’s authority to interpret the

law.

The President acts here in defiance of the

express will of Congress and the express decisions of

this Court. By doing so, the Order poses more than an

ordinary interpretive dispute. Indeed, the Order does

not even acknowledge this Court’s prior controlling

decisions, far less seek to distinguish them. Instead,

the Order seeks sub silentio to override the authority

of this Court no less than that of Congress.

It is fundamental law that when constitutional

text, precedent, statute, and historical practice clearly

align, as they do here, an incompatible exercise of

executive power must yield. Chief Justice Marshall

long ago recognized that where constitutional

interpretation concerns the allocation of authority

amongst the political branches, longstanding

government practice carries substantial interpretive

weight. In considering “doubtful question[s]” involving

“the respective powers of those who are equally the

representatives of the people,” constitutional

interpreters “ought to receive a considerable

impression from” the “practice of the government.”

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401

(1819). The settled practice here all runs in one

direction. For more than a century, this Court has

upheld Wong Kim Ark’s understanding of birthright

citizenship; Congress has legislated against that

backdrop; and the Executive has faithfully executed

that law out of constitutionally mandated respect for

both. Executive Order 14,160 stands alone in

attempting to shatter this entrenched interbranch

consensus.

This Court directed in NLRB v. Noel Canning,

573 U.S. 513, 524 (2014), that “‘long settled and

established practice is a consideration of great weight

in a proper interpretation of constitutional provisions’

regulating the relationship between Congress and the

President.” (quoting The Pocket Veto Case, 279 U.S.

655, 689 (1929)).6 Where, as here, Congress has

repeatedly legislated on a particular understanding of

the Constitution and the Executive has consistently

administered the law in accordance with that

understanding, courts must apply the settled

constitutional meaning. “An exposition of the

Constitution, deliberately established by legislative

acts, on the faith of which an immense property has

been advanced, ought not to be lightly disregarded.”

McCulloch, 17 U.S. (4 Wheat.) at 401. This President’s

attempted unilateral revision cannot withstand

Youngstown and longstanding historical practice.

Justice Jackson, writing in Youngstown,

recognized the interpretive value of long-established

practice. “While the Constitution diffuses power the

Even a practice as new as “twenty years [old]

‘on the part of the executive department, acquiesced in

by the legislative department, . . . is entitled to great

regard in determining the true construction of a

constitutional provision the phraseology of which is in

any respect of doubtful meaning.’” Noel Canning, 573

U.S. at 524 (quoting State v. South Norwalk, 77 Conn.

257, 264 (1904)). That logic applies a fortiori to the

executive practice of adhering to Wong Kim Ark’s

definition of citizenship, which is more than a century

old. See supra Part I.D.

better to secure liberty, it also contemplates that

practice will integrate the dispersed powers into a

workable government.” 343 U.S. at 635 (Jackson, J.,

concurring). Justice Frankfurter’s Youngstown

concurrence likewise argued that “systematic,

unbroken, executive practice, long pursued to the

knowledge of the Congress and never before

questioned” acts as a “gloss” on Article II executive

power, shaping its meaning beyond mere text. Id. at

610–11 (Frankfurter, J., concurring). Here, that gloss

confirms that the President acted in disregard of all

prior executive practice and in defiance of this Court

and Congress.

C. Allowing the Order to stand would set a

dangerous precedent.

Justice Jackson presciently urged the Court not

to “confound[] the permanent executive office with its

temporary occupant.” Id. at 634 (Jackson, J.,

concurring). This Court should not “lose sight of

enduring consequences upon the balanced power

structure of our Republic” to allow a single Executive

to sidestep the Constitution, the judiciary, Congress,

and the considered judgment of past presidents to

serve short-term political aims. Id.

This is no ordinary Executive Order. It makes

law—and does so in direct defiance of the

Constitution, Congress, this Court, and prior

Executives. If allowed to stand, it will provide a

blueprint for all future presidents. Every president

could hastily issue Executive Orders that claim to

“interpret” the law—even where the Constitution has

assigned exclusive authority to Congress and even

where the Court has already construed the provision—

in open defiance of clear legislative and judicial

commands.7 Then, they can dare the Court and

Congress to catch up. Executives will always win this

game, even though it is contrary to our most

fundamental constitutional principles. As Justice

Jackson warned in Youngstown:

The essence of our free Government is

“leave to live by no man’s leave,

underneath the law”—to be governed by

those impersonal forces which we call

law. Our Government is fashioned to

fulfill this concept so far as humanly

possible. The Executive, except for

recommendation and veto, has no

legislative power. The executive action

we have here originates in the individual

will of the President and represents an

exercise of authority without law. No one,

perhaps not even the President, knows

the limits of the power he may seek to

exert in this instance and the parties

affected cannot learn the limit of their

rights. . . . With all its defects, delays and

inconveniences, men have discovered no

technique for long preserving free

government except that the Executive be

No version of unitary executive theory allows a

president to ignore constitutional structure. See Caleb

Nelson, Special Feature: Must Administrative Officers

Serve at the President’s Pleasure?, N.Y.U. L.

Democracy

Project

(Sep.

29,

2025),

https://democracyproject.org/posts/mustadministrative-officers-serve-at-the-presidentspleasure.

under the law, and that the law be made

by parliamentary deliberations.

Such institutions may be destined to pass

away. But it is the duty of the Court to be

last, not first, to give them up.

343 U.S. at 654–55 (Jackson, J., concurring) (emphasis

added).

CONCLUSION

For all the foregoing reasons, amici respectfully

urge the Court to affirm the judgment below.

Respectfully submitted,

TADHG DOOLEY

Counsel of Record

ARMANDO GHINAGLIA

WIGGIN AND DANA LLP

265 Church Street

New Haven, CT 06510

(203) 498-4400

tdooley@wiggin.com

HAROLD HONGJU KOH

BRUCE SWARTZ

SONIA MITTAL

MARGARET M. DONOVAN

Peter Gruber Rule of Law

Clinic

Yale Law School

127 Wall Street

P.O. Box 208215

New Haven, CT 06520

(203) 432-4932

harold.koh@ylsclinics.org

Counsel for Amici Curiae

February 26, 2026

APPENDIX

TABLE OF CONTENTS

List of Amici Curiae ................................................. A1

APPENDIX — LIST OF AMICI CURIAE

Donald Ayer

Deputy Attorney General (1989–1990)

Principal Deputy Solicitor General (1986–1988)

United States Attorney, Eastern District of California

(1982–1986)

Board Member, Society for the Rule of Law

Bradford Berenson

Associate Counsel to the President (George W. Bush)

(2001–2003)

Phillip Brady

Deputy Counsel to the President (Reagan) (1988–

1989)

Acting Assistant Attorney General (1984–1985)

Associate Attorney General (1983–1984)

Charter Member, Society for the Rule of Law

Ty Cobb

Special Counsel to the President (Trump) (2017–2018)

Assistant U.S. Attorney (1980–1986)

Member, Society for the Rule of Law

Benedict S. Cohen

General Counsel, Department of the Army (2006–

2009)

Deputy General Counsel, Department of Defense

(2001–2005)

Associate Counsel to the President (Reagan) (1986–

1989)

Member, Society for the Rule of Law

Barbara Comstock

Member, U.S. House of Representatives (R-VA, 2015–

2019)

Chief Counsel, House of Representatives Government

Reform and Oversight Committee

Board Member, Society for the Rule of Law

Hon. Mickey Edwards

Member, U.S. House of Representatives (R-OK, 1977–

1993)

Member of the House Republican Leadership (Chair of

House Republican Policy Committee)

Charter Member, Society for the Rule of Law

Stuart M. Gerson

Acting Attorney General (1993)

Assistant Attorney General (Civil) (1989–1993)

Assistant United States Attorney for the District of

Columbia (1972–1975)

Board Treasurer, Society for the Rule of Law

John Giraudo

Legal Adviser, Office of Legal Counsel, U.S. Dept. of

Justice (1986–1988)

Charter Member, Society for the Rule of Law

Peter Keisler

Acting Attorney General (2007)

Assistant Attorney General (Civil) (2003–2007)

Secretary, Society for the Rule of Law

Robert M. Kruger

Assistant Attorney General for Legislative Affairs

(2007–2009)

Associate Counsel to the President (Reagan) (1986–

1989)

Philip Allen Lacovara

Deputy Solicitor General (1972–1973)

Counsel to the Watergate Special Prosecutor (1973–

1974)

President’s Representative (Reagan)

District of Columbia Judicial Nomination Commission

(1981–1986)

Hon. J. Michael Luttig

U.S. Circuit Judge, Court of Appeals for the Fourth

Circuit (nominated by George H.W. Bush) (1991–

2006)

Assistant Attorney General, Office of Legal Counsel

and Counselor to the Attorney General (1990–1991)

Assistant Counsel to the President (Reagan) (1981–

1982)

Board Member, Society for the Rule of Law

Gregg Nunziata

Former Chief Nominations Counsel to the Senate

Judiciary Committee; Judiciary and Homeland

Security Policy Counsel to the Senate Republican

Policy Committee; and General Counsel to U.S.

Senator Marco Rubio

Executive Director of the Society for the Rule of Law

Nuala O’Connor

Member, President’s Board on Safeguarding

Americans’ Civil Liberties (George W. Bush) (2004–

2005)

Chief Privacy Officer, Department of Homeland

Security (2003–2005)

Chief Counsel, Technology Administration and Chief

Privacy Officer, Department of Commerce (2002–

2003)

Deputy Director, Policy & Strategic Planning,

Department of Commerce (2001–2002)

Advisory Council Member, Society for the Rule of Law

Carter G. Phillips

Assistant to the Solicitor General (1981–1984)

Charter Member, Society for the Rule of Law

Trevor Potter

President, Campaign Legal Center

Federal Election Commissioner (1991–1995) and

Chairman (1994)

Office of Legal Policy at the Department of Justice

(1982–1984)

Charter Member, Society for the Rule of Law

Alan Charles Raul

Associate Counsel to the President (Reagan) (1986–

1988)

General Counsel, Office of Management and Budget

(Reagan, George H.W. Bush) (1988–1989)

Vice Chairman of the Privacy and Civil Liberties

Oversight Board (George W. Bush) (2006–2008)

President, Society for the Rule of Law

Paul Rozensweig

Deputy Assistant Secretary for Policy, Department of

Homeland Security (2005–2009)

Charter Member, Society for the Rule of Law

Nicholas Rostow

General Counsel and Senior Policy Adviser to the U.S.

Permanent Representative to the United Nations

(2001–05)

Special Assistant to the President for National

Security Affairs and Legal Adviser, National Security

Council (1987–93)

Charter Member, Society for the Rule of Law

Robert B. Shanks

Deputy Assistant Attorney General, Office of Legal

Counsel (1981–1984)

General Counsel, Overseas Private Investment

Corporation (1985–1987)

General Counsel, Peace Corps (2017–2020)

Charter Member, Society for the Rule of Law

Hon. Christopher Shays

Member, U.S House of Representatives (R-CT, 1987–

2009)

Chairman, Subcommittee on the Federal Workforce

and Agency Organization (2003–2007)

J. Michael Shepherd

Associate Counsel to the President (Reagan) (1986–

1987)

Deputy Assistant Attorney General (1984–1986)

Advisory Council Member, Society for the Rule of Law

Stan Twardy, Jr.

United States Attorney, District of Connecticut (1985–

1991)

Charter Member, Society for the Rule of Law

David Barclay Waller

Senior Associate Counsel to the President (Reagan)

(1981–1986)

Assistant Secretary of Energy, International Affairs

and Energy Emergencies (1986–1989)

Peter J. Wallison

Counsel to the President (Reagan) (1986–1987)

General Counsel, U.S. Department of the Treasury

(1981–1985)

Counsel to the Vice President (Ford/Rockefeller)

(1975–1976)

Hon. Christine Todd Whitman

Governor of New Jersey (R-NJ, 1994–2001)

Administrator, Environmental Protection Agency

(2001–2003)

Wendell L. Willkie II

Associate Counsel to the President (Reagan) (1984–

1985)

General Counsel, U.S. Department of Education

(1985–1988

General Counsel, U.S. Department of Commerce

(1989–1993)

Acting Deputy Secretary of Commerce (1992–1993)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.