On Wednesday, April 1, the Supreme Court will hear oral arguments in one of its highest profile cases of 2026. Trump v. Barbara is a challenge to President Donald Trump’s Executive Order (EO) seeking to end birthright citizenship, the automatic granting of U.S. citizenship to people born in the United States.
The case is being framed as a constitutional question: Federal courts have concluded that the Executive Order is unconstitutional under the Fourteenth Amendment. The Trump administration disagrees. U.S. Department of Justice attorneys contend that lower court rulings are based on an incorrect interpretation of the Constitution.
On February 19, Congressional Democrats submitted a legal brief offering a second – “separate and independent” – reason why the Executive Order should be thrown out: The Trump order violates a U.S. law.
“It is not enough for the Administration to show that the Executive Order is consistent with the Constitution,” the 217 Congressional Democrats argue in their brief. They claim instead that the Trump Administration must also show that the order is “consistent with…the broader citizenship guarantee” provided in a 1940 law passed by Congress that grants citizenship upon birth in the United States [8 USC 1401].
“[T]he Fourteenth Amendment does not set out a ceiling,” the Members explain in their brief. “Congress is free to confer birthright citizenship more broadly, to people who do not have citizenship by virtue of the constitutional text.” The Constitution provides a floor, not a ceiling.
The Example of Puerto Rico
More than 80% of all Congressional Democrats, led by top House Judiciary Committee Representative Jamie Raskin (D-MD), point to the statutory citizenship of Puerto Ricans as a “key piece of evidence” that Congress can provide rights separately and independently from those included in the U.S. Constitution.
The brief, signed by every Democrat serving on the Judiciary Committee in both the U.S. House of Representatives and U.S. Senate, explains that when Congress passed its citizenship law in 1940, “the Constitution was not then understood to extend citizenship of its own force, to persons born in certain U.S. overseas territories, including Puerto Rico.”
The 1940 law, however, “conveyed statutory citizenship independently of any rights under the Fourteenth Amendment,” according to the legal brief. In passing the law, the Representatives and Senators explain, “Congress deliberately adopted a citizenship rule more generous than the constitutional floor: Persons born in Puerto Rico, after all, had no constitutional right to citizenship.”
Implications for all U.S. Births in Puerto Rico
This legal analysis highlights the vulnerability of U.S. citizenship based on birth in Puerto Rico. Statutory U.S. citizenship has been granted, but it can also be taken away if Congress were to pass another law. U.S. citizenship in Puerto Rico is “separate and independent” from constitutional citizenship, and, by association, constitutional safeguards and guarantees.
Notably, the vulnerability of Puerto Rican U.S. citizenship does not appear to be one that can be cured by simply taking a plane. Birth in Puerto Rico is straightforward. Moving to Florida, New York or any other state is not part of the legal analysis.
This point may be sobering to the roughly three million U.S. citizens living in Puerto Rico and the six million U.S. citizens of Puerto Rican heritage living stateside, but it also brings clarity, and with such clarity comes the potential for progress.
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