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 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 Independence
Congress extended U.S. citizenship to Puerto Rico by passing a law. If Puerto Rico were to become a new country, Congress would revisit this law. Before the current relationship is even severed. In the course of granting independence, Congress would pass a new law. This law would cover matters related to immigration and U.S. citizenship.
As a political and policy matter, Congress cannot allow for people in a new nation of Puerto Rico to remain U.S. citizens. There are policy reasons a mile long why ongoing U.S. citizenship in a new foreign country of three million people would be problematic, beginning with but not limited to matters of national security and foreign policy.
In a new country of Puerto Rico, Congress can – and would – easily establish a new mandate that birth in Puerto Rico will no longer be a basis for granting U.S. citizenship. The fate of current U.S. citizenship in this new nation of Puerto Rico would be very much on the table.
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.
