Fordham Law Professor Says Trump Is Right on Certain Aspects of Birthright Citizenship

The Supreme Court is poised to hear oral arguments in Trump v. Barbara, the possible landmark case that could fundamentally change how America approaches birthright citizenship. President Trump issued an executive order that limited birthright citizenship in early 2025. Since then, several lawsuits have been filed and judges have ruled against the executive order, prompting the Supreme Court to rule the efforts constitutional and to issue a smackdown of circuit court judges issuing nationwide injunctions.

In December, the Supreme Court agreed to hear the case in full. 

Now, the Trump administration is getting support from Fordham Law Professor Tom Lee, who says that the Trump administration is correct on the issue when it comes to temporary vistors.

Wow! On the eve of oral argument in the birthright case, Fordham Law Professor Tom Lee joins the fray — and argues that the Trump administration is RIGHT at least regarding temporary visitors. Looking forward to diving in. And to seeing the usual suspects pounce. Link:… pic.twitter.com/HXutsmy3iB

— Ilan Wurman (@ilan_wurman) March 30, 2026

The abstract of Lee’s paper reads:

The debate about President Trump’s January 20, 2025 Executive Order denying automatic American citizenship to children born in the United States to unlawfully or temporarily present foreign parents is divided into two polar-opposite camps asserting that it’s wholly constitutional or wholly unconstitutional. In a new academic paper, I make the case that the 1868 original meaning of the Fourteenth Amendment’s Citizenship Clause supports a middle position: a child born in the United States to alien parents is automatically a citizen if the parents reside in the United States, even if they entered unlawfully, but the child is not a citizen if the alien parents are in the United States as temporary sojourners, like tourists. This original, revisionist interpretation of the Citizenship Clause is faithful to the Clause’s text and original meaning and also consistent with the Constitutions other citizenship-related provisions, relevant Supreme Court decisions, and the larger, evolving context of domestic and international citizenship controversies the Clause was ratified to address, while recovering an original meaning that sensibly speaks to modern realities.

This, of course, won’t sway those who argue that the 14th Amendment only applied to the children of slaves and those subject to the jurisdiction of the United States. But it is a boost for at least part of President Trump’s argument against the 14th Amendment.

Earlier this month, we told you how Chinese nationals are traveling visa-free to the Mariana Islands, thanks to an Obama-era travel loophole. Birth tourism to the island is a lucrative business, and one Rep. Tom Tiffany, who is also running for Wisconsin Governor, hopes to put an end to with or without the Supreme Court ruling.

🚨On the eve of argument day, another entry into the Birthright Citizenship debate. Professor Tom Lee (not the former Utah Supreme Court Justice) argues that President Trump is right–as to “temporary sojourners”, like tourists (and Birth Tourists). An interesting entry! https://t.co/oaQJVPCSon

— Eric W. (@EWess92) March 30, 2026

It will make for a very interesting entry into the argument.

That’s not a minor difference. As someone who has casually read the arguments in this case, it seems to me that there is a plausible (not necessarily compelling) case for a sojourner exception, but none for an “illegal alien” exception (at least none that survives Wong Kim Ark).…

— Mike Stern (@mls1776) March 30, 2026

The question becomes if one can establish a domicile if they’re in a country illegally.

There’s almost no daylight between this paper and the SG’s position. The only difference is the SG argues one cannot
establish a domicile or a legal residence if in the jurisdiction unlawfully. https://t.co/Av9aMJl3W3

— Ilan Wurman (@ilan_wurman) March 30, 2026

The oral arguments are set for April 1, and we’re not sure how the Supreme Court will rule yet. But there is a wide range of opinions and the ruling will have far-reaching implications for both the Trump administration and beyond.

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