Courting Change: Rubio’s 2016 Defense of Birthright Citizenship Reexamined

(UNITED STATES) Marco Rubio’s past defense of birthright citizenship is colliding with his present job enforcing President Trump’s 2025 directive to narrow who becomes a citizen at birth. On January 2025, President Trump signed an order titled “Protecting the Meaning and Value of American Citizenship,” directing agencies to deny automatic citizenship to children born in the U.S. if their mothers were “unlawfully present” or only temporarily in the country and their fathers were neither citizens nor lawful permanent residents. Civil rights groups swiftly sued in federal court in a case captioned OCA v. Rubio, naming both the president and Rubio, now Secretary of State, as defendants. Lower courts have blocked the order, and the Supreme Court is expected to hear arguments this fall, with a ruling likely in late 2025 or early 2026.

Policy flashpoint and legal stakes

Trump’s Executive Order challenges more than a century of law tied to the 14th Amendment’s Citizenship Clause, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” are citizens. The leading case, Wong Kim Ark (1898), affirmed that nearly all children born on U.S. soil are citizens at birth, except the children of foreign diplomats or hostile occupying forces.

Legal scholars note the order’s focus on parents’ status—undocumented or temporarily present—directly contradicts that precedent. Peter J. Spiro of Temple University and others point out that Rubio’s own 2016 court filing aligns with the traditional rule and could be cited against the administration’s position.

Rubio’s 2016 brief, filed when he was a senator and presidential candidate, stated that “persons born in the United States to foreign parents (who were not diplomats or hostile, occupying enemies) were citizens of the United States by virtue of their birth.” That clear statement, rooted in longstanding case law, sits uneasily with his current role. A State Department spokesperson says Rubio is “100 percent aligned with President Trump’s agenda,” brushing aside his past legal stance. The secretary has also faced blowback for supporting moves to end certain Temporary Protected Status designations, adding to criticism from immigrant advocates and some Republican colleagues.

If the Supreme Court upholds Trump’s Executive Order, the effects would be immediate and far-reaching:

• Babies born in U.S. hospitals could leave without a path to a U.S. birth certificate or passport if their mothers lack status and their fathers are neither citizens nor green card holders.
• Families could face years of uncertain legal identity.
• Some newborns might be at risk of statelessness if no other country recognizes them as citizens.

If the Court blocks the order, the current rule remains: nearly all children born in the United States are citizens at birth under the 14th Amendment, with the narrow diplomatic and wartime exceptions.

According to analysis by VisaVerge.com, the order faces steep constitutional hurdles because it attempts to rewrite a bright-line rule that courts have upheld for generations. Still, the outcome is not guaranteed. The administration argues it is protecting the value of citizenship and deterring illegal immigration. Opponents say the order violates the Constitution and would harm thousands of U.S.-born children and their families.

Key legal question: Does the executive branch have authority to narrow birthright citizenship established by the 14th Amendment and interpreted by longstanding precedent such as Wong Kim Ark?

Political crosscurrents and legislative attempts

Congress is also testing the boundaries. The Birthright Citizenship Act of 2025, H.R.569, introduced in January by Rep. Brian Babin (R-TX), would redefine “subject to the jurisdiction” so that only babies with at least one:

• U.S. citizen,
• Lawful permanent resident, or
• Certain non-citizen military parent

would gain citizenship at birth. The bill would not apply retroactively. As of August 21, 2025, it sits in committee without a floor vote. Even if it advances, any statute would likely face the same constitutional questions now before the Court.

The lawsuit OCA v. Rubio, brought by Advancing Justice – AAJC, WLC, and OCA, is the main test case. With lower-court injunctions in place, the government has sought review, and oral arguments are expected in the fall. The Supreme Court’s decision could either:

1. Reaffirm the traditional reading of the Citizenship Clause, or
2. Mark the first major change to birthright citizenship in more than a century.

For affected families, timing is critical. Hospital discharge, state vital records, and federal passport issuance all hinge on whether a child qualifies as a U.S. citizen at birth. Courts’ temporary blocks keep current practices in place for now.

What people should keep in mind

• The order is blocked; existing rules remain. Babies born in the U.S. still receive recognition consistent with current law pending the Supreme Court’s decision.
• If the Court upholds the order, agencies would move quickly to apply the new standard. That could mean denials of passports and questions at state vital records offices.
• If the Court strikes the order, the 14th Amendment rule continues unchanged, consistent with Wong Kim Ark and later cases.

Rubio’s journey—from author of a forceful 2016 defense to steward of a policy trying to narrow that rule—has become a central theme in the broader legal and political battle. Supporters of restriction say the current rule invites misuse and strains public systems. Opponents warn that changing a clear constitutional promise would:

• Sow confusion,
• Separate families, and
• Undermine a bedrock of American civic life.

While the administration frames its move as protecting the integrity of citizenship, civil rights groups say Trump’s Executive Order is unconstitutional and would harm U.S.-born children who have done nothing wrong.

Real-world consequences

Consider this hypothetical: a child born in a U.S. city to a mother on an expired visa and a father without status. Under the order’s terms, that child would not be a citizen. If neither parent can pass on another nationality, the child may be stuck in legal limbo—no passport, no recognized country, and barriers to basic services later in life.

Even when another nationality is possible, parents could face a maze of consular rules and travel they cannot afford. Advocates argue these real-world impacts are why the 14th Amendment’s simple rule has endured.

Resources and next steps

Government resources remain a first stop for families seeking updates. For general information on citizenship and current policy, see the U.S. government’s official guidance at: https://www.uscis.gov/citizenship.

Congress will continue to post updates on H.R.569, and the Supreme Court docket will list argument dates and filings as the case moves forward. The decisive moment will come with the Court’s opinion.

For now: the injunctions stand, the briefing continues, and the country waits for the justices to speak. The coming months will test how the nation reads a promise—written after the Civil War and reaffirmed in 1898—that birth on U.S. soil, not the paperwork of a parent, makes a child a citizen.