Does the so-called statutory off-ramp need emergency road work?
Trump v. Barbara and the 1927 Virgin Islands citizenship statute
In their brief to the Supreme Court, respondents in Trump v. Barbara argued not only that Executive Order 14160’s1 interpretation of the Constitution’s Citizenship Clause2 “cannot be squared with the Clause’s text or historical context, nor with this Court’s precedent,”3 but also contended that statutory provisions passed in 1940 and 1952 provide “an independent basis” to rule in their favor.4 While a three-judge panel of the United States Court of Appeals for the First Circuit endorsed this statutory argument in other litigation last fall, the panel took the 1930s and the genesis of the Nationality Act of 1940 as the starting point for its survey of “subject to the jurisdiction” as a statutory term.5
In evaluating the statutory argument against the executive order, how should the Supreme Court deal with Section 1995 of the Revised Statutes6 and a 1927 provision specific to the Virgin Islands,7 the two pre-1940 citizenship statutes that used the phrase “subject to the jurisdiction of the United States?”
Both provisions remained on the statute books when the Roosevelt administration got to work on its revision project in the 1930s and neither provision was repealed by the Nationality Act of 1940.8 (The Nationality Act of 1940 did repeal a different section of the 1927 Virgin Islands citizenship law.)9
A House Committee report on the Nationality Act of 1940 listed the 1927 Virgin Islands law among the existing provisions the legislation subsumed under Section 201(a),10 the general citizenship citizenship statute—now classified at 8 U.S.C. § 1401(a) (2024 ed.)—which has provided for citizenship from birth for “a person born in the United States, and subject to the jurisdiction thereof” since 1940.11 (For purposes of the Nationality Act of 1940, being born in the United States meant being born in “the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States.”)12
The general citizenship statute was not the only provision of the Nationality Act of 1940 to use “subject to the jurisdiction,” as Section 202 read:
All persons born in Puerto Rico on or after April 11, 1899, subject to the jurisdiction of the United States, residing on the effective date of this Act in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are hereby declared to be citizens of the United States.13
According to the 193814 report from Roosevelt’s cabinet secretaries, Section 202 put “Puerto Rico on a par with the Virgin Islands:”
In other words, this section will in effect apply the rule of jus soli to Puerto Rico as of the date of its annexation to the United States, treating Puerto Rico for such purpose as an incorporated territory of the United States. It places Puerto Rico on a par with the Virgin Islands with regard to the effect of birth therein since its annexation to the United States.15
In 1952, Congress incorporated the 1927 Virgin Islands provision into the Immigration and Nationality Act:
All persons born in the Virgin Islands of the United States on or after January 17, 1917, and prior to February 25, 1927, and subject to the jurisdiction of the United States are declared to be citizens of the United States as of February 25, 1927; and all persons born in those islands on or after February 25,1927, and subject to the jurisdiction of the United States, are declared to be citizens of the United States at birth.16
In 1926 and 1927, Senate and House committee reports invoked the Citizenship Clause in identical terms:
Section 3 provides for persons hereafter born in the Virgin Islands of the United States. The rule of citizenship already provided in the fourteenth amendment to the Constitution of the United States.17
In litigation over the executive order, the only Statutes at Large citation for the 1927 law seems to be in a Supreme Court amicus brief from Citizenship Law Scholars.18
Should courts have asked litigants advancing the statutory argument against the executive order whether “subject to the jurisdiction” had the same meaning in the 1927, 1940, and 1952 provisions for citizenship on account of birth in the Virgin Islands and, if so, why their statutory argument skipped past the 1927 statute?
U.S. Const., Amend. XIV, § 1, 15 stat. 709 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”).
Doe et al. v. Trump et al., Nos. 25-1169 and 25-1170, slip op. at 47-53 (1st Cir. Oct. 3, 2025) (reported at 157 F. 4th 36).
1 Revised Statutes 351, § 1995 (1875) (“All persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States on the 18th May, 1872, are citizens in the same manner as if born elsewhere in the United States.”). See also Act of May 18, 1872, ch. 172, § 3, 17 stat. 122, 134.
Act of Feb. 25, 1927, ch. 192, § 3, 44 stat. 1234, 1235. (“All persons born in the Virgin Islands of the United States on or after January 17, 1917 (whether before or after the effective date of this Act), and subject to the jurisdiction of the United States, are hereby declared to be citizens of the United States.”).
Pub. L. 76-853, Oct. 14, 1940, title 1, ch. 5, § 504, 54 stat. 1137, 1172-1174 (Nationality Act of 1940).
Nationality Act of 1940, title 1, ch. 1, § 101(d), 54 stat. 1137, 1137 (“The term “United States” when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States.”). Compare Immigration and Nationality Act, title 1, § 101(a)(38), 66 stat. 163, 171, as amended by Pub. L. 110–229, May 8, 2008, title VII, § 702(j)(3), 122 stat. 754, 866, classified at 8 U.S.C. § 1101(a)(38) (2024 ed.).
Correction, 4/12/2026: as initially published, this article incorrectly indicated that the report had been submitted in 1939.
Nationality Laws of the United States: Message from the President of the United States Transmitting a Report Proposing a Revision and Codification of the Nationality Laws of the United States, Prepared at the Request of the President of the United States, by the Secretary of State, the Attorney General, and the Secretary of Labor, Part One: Proposed Code with Explanatory Comments, 76th Cong., 1st Sess. at 14 (Comm. Print 1939).
Brief of Citizenship Law Scholars as Amici Curiae Supporting Respondents, Trump v. Barbara, No. 25-365 at 9 n. 4 (S. Ct. Feb. 18, 2026) (“This Court had suggested that the Citizenship Clause did not extend to the unincorporated territories. Downes v. Bidwell, 182 U.S. 244, 249-251 (1901) (Brown, J., opinion). While Congress first extended birthright citizenship to the U.S. Virgin Islands in 1927, see Act of Feb. 25, 1927, Pub. L. No. 69-640, §3, 44 Stat. 1234, 1235, extending the general birthright citizenship rule codified in section 201(a) to Puerto Rico was new.”).