WASHINGTON - s4story -- Experts Suggest Split Ruling in Birthright Case
Perhaps It Applies Only to Mothers in U.S. Legally

WASHINGTON, D.C. (April 2, 2026) -  Although many commentators are predicting, based upon the oral arguments, that all parts of President Trump's executive order limiting birthright citizenship will be struck down, some have suggested that there might be a compromise split decision, especially if some justices feel inclined to protect the president from a total and arguably humiliating loss.

For example, Amy Swearer, a senior legal fellow at Advancing American Freedom, said, "I do think there's a path forward for a Trump victory, though it would likely be narrow and partial. . .   I wouldn't be shocked to see some sort of plurality of opinions splitting the baby somewhere."

Swearer speculated that possible routes the court could take include differentiating between illegal immigrants and temporary visa holders, delivering a partial victory for the administration.

Similarly the Heritage Foundation's Roger Severin also suggested a similar compromise split decision in an interview on Fox News.

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Also, public interest law professor John Banzhaf wrote that the questioning suggested that the justices might still issue a split decision - upholding birthright citizenship if the mother was lawfully in the U.S. at the time of birth (e.g., on a temporary visa), but denying it if she entered illegally so that she was arguably not subject in any practical manner to U.S. jurisdiction ("the jurisdiction thereof"), especially if she and the child might still be subject to the laws of another country (e.g. to perform military service).

Professor Banzhaf, who has won several Supreme Court cases, notes that some justices suggested that distinctions might be drawn between women who were lawfully but temporarily in the U.S. at the time of birth, and those who were here illegally, and whose presence and whereabouts might be unknown to any government agency (and thus not realistically subject to governmental jurisdiction).

Banzhaf's legal analysis, which a majority might still adopt, suggests that this distinction would permit withholding birthright citizenship to children born after the effective date if the mother was an illegal alien, but not if she was here legally (e.g., on a student, work, tourist, or visa-waiver visa) at the time.

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A Possible Compromise in the Birthright Citizenship Case (http://prsync.com/george-washington-university/a-possible-compromise-in-the-birthright-citizenship-case----children-become-citizens-only-if-mother-was-in-the-us-lawfully-5180031/)
Children Become Citizens Only If Mother Was in the U.S. Lawfully (http://prsync.com/george-washington-university/...)

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School
"The Man Behind The Ban on Cigarette Commercials"
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Creator of the "Banzhaf Index"
Founder, Action on Smoking and Health (ASH),
(703) 527-8418
http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf