Birthright Citizenship Analysis Ahead of Supreme Court Decision

Mark Krikorian; Richard Epstein

By Mark Krikorian and Richard Epstein on May 21, 2026

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Summary

As the nation awaits a potentially landmark Supreme Court decision on birthright citizenship, the latest episode of Parsing Immigration Policy features renowned legal scholar Richard Epstein for an in-depth discussion of the constitutional, historical, and legal arguments surrounding the issue.

Epstein, a law professor at New York University and the University of Chicago and a senior fellow at the Civitas Institute at the University of Texas at Austin, is author of the upcoming book, The Myth of Birthright Citizenship. He also filed an amicus brief in the Supreme Court case Trump v. Barbara, which the Supreme Court is expected to rule on this summer. In the book and the brief, Epstein argues that the Citizenship Clause of the 14th Amendment does not automatically confer citizenship on children born in the United States to illegal aliens or tourists.

During the conversation, Epstein explains that understanding the issue requires careful textual and historical analysis of the 14th Amendment, particularly the phrase “subject to the jurisdiction thereof.”

According to Epstein, the clause requires more than mere physical presence or birth within the United States. He argues that individuals born owing allegiance to a foreign sovereign, or whose parents are not under the complete jurisdiction of the United States, are excluded from automatic citizenship.

Drawing on centuries of legal history, Epstein discusses the overlooked Naturalization Acts from 1790 to 1870, the writings of influential thinkers including William Blackstone and Emer de Vattel, and American legal practices before and after the Civil War. He argues that citizenship historically required allegiance and mutual obligations between citizen and sovereign – not mere birth within territorial boundaries.

In his closing commentary, podcast host Mark Krikorian discusses the ongoing legislative battle over funding for CBP and ICE through 2029. Republicans are advancing a budget reconciliation package that could reach the House floor as early as this week or next. Because reconciliation bills can pass with a simple majority, the legislation would bypass the Senate’s traditional 60-vote filibuster threshold. Krikorian highlights that the Democratic Party has embraced positions hostile to the existence of immigration enforcement agencies, creating potential political consequences in upcoming debates and elections.

Host

Mark Krikorian is the Executive Director of the Center for Immigration Studies.

Guest

Richard Epstein is Emeritus Professor at the New York University School of Law and the University of Chicago Law School and Senior Fellow at the Civitas Institute at the University of Texas at Austin.