When Secretary of State Marco Rubio made headlines on August 18, 2025, it wasn’t for a new policy or a diplomatic breakthrough, but rather for a legal argument he’d penned nearly a decade earlier—one that now sits in direct contrast to a core plank of President Donald Trump’s immigration agenda. As reported by The New York Times and Latin Times, Rubio’s 2016 federal court filing, submitted while he was a Republican senator running for president, unequivocally defended the constitutional right to birthright citizenship for nearly all children born on U.S. soil, regardless of their parents’ immigration status.
The timing of this resurfaced argument is hardly coincidental. Earlier this year, President Trump issued an executive order aiming to restrict birthright citizenship, declaring that children born in the United States would not automatically become citizens if their mothers were unlawfully present or only in the country on a temporary basis, and if their fathers were neither U.S. citizens nor lawful permanent residents. The order, as both Raw Story and Latin Times noted, has been blocked in lower courts, but the administration has asked the Supreme Court to take up the issue this fall.
Rubio’s legal brief, however, tells a different story—one rooted in the longstanding interpretation of the 14th Amendment. The brief was filed in response to a lawsuit from independent presidential candidate David Librace, who challenged Rubio’s eligibility to run for president based on the fact that Rubio was born in 1971 to Cuban immigrants who didn’t become U.S. citizens until four years after his birth. The suit, filed in Arkansas, claimed Rubio was not a "natural born citizen." The court dismissed the case, but Rubio’s arguments went much further than necessary, addressing not just the presidential eligibility clause but also the broader question of birthright citizenship.
According to The New York Times, Rubio’s filing stated that the 14th Amendment was designed to ensure that “all persons born in the United States, regardless of race, ancestry, previous servitude, etc., were citizens of the United States.” He went on to assert, “the amendment, the common law on which it was based and the leading Supreme Court precedent all confirmed 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 argument, according to Peter J. Spiro, a citizenship law expert at Temple University, remains highly relevant today. Spiro told The New York Times, “There’s no reason why the argument he put to work in 2016 couldn’t be put to work today against the Trump executive order.” He described Rubio’s brief as “a powerful, succinct statement of why the 14th Amendment has been interpreted to cover almost all children born in the United States, regardless of parental immigration status.”
The contrast between Rubio’s past legal reasoning and the current administration’s position is stark. Trump’s executive order contends that children born to parents who are in the U.S. temporarily or unlawfully are not automatically granted citizenship because they are not “subject to the jurisdiction” of the United States. Spiro, for his part, criticized the administration’s attempt to distinguish among legally present noncitizens. “Particularly weak is the administration’s attempt to distinguish among legally present noncitizens,” he said. “By trying to exclude the children of so-called nonimmigrants—including student visa holders and temporary workers—the administration loses the argument that it’s only targeting those who are here in violation of the law.”
Despite the legal and historical weight behind Rubio’s 2016 arguments, the State Department has sought to downplay their significance. Tommy Pigott, a State Department spokesman, dismissed the focus on Rubio’s past filing, telling Latin Times that Rubio is “100 percent aligned with President Trump’s agenda,” and adding, “it’s absurd the NYT is even wasting time digging around for decade-old made-up stories.” Pigott’s comments echoed similar statements made to Raw Story, where he again insisted that the secretary of state remains fully in step with the president.
This isn’t the first time Rubio has faced scrutiny for shifting positions on issues affecting immigrants, particularly those from Latin America. In May 2025, the advocacy group Keep Them Honest erected signs accusing Rubio of betraying Venezuelans after he supported ending Temporary Protected Status (TPS) for certain migrants—a designation he once championed. Rubio has since argued that TPS is now harmful to U.S. interests and has linked it to potential security threats, a move that has drawn criticism from immigrant rights groups and some within his own party.
The legal and political drama around birthright citizenship has a long and complex history in the United States. The 14th Amendment, ratified in 1868 in the aftermath of the Civil War, was intended to guarantee citizenship to formerly enslaved people and their descendants. Over time, courts have interpreted its “subject to the jurisdiction thereof” language to mean that nearly everyone born on U.S. soil—save for children of diplomats or hostile occupying forces—is entitled to citizenship. This interpretation has been reaffirmed by Supreme Court precedent, most notably in the 1898 case United States v. Wong Kim Ark, which held that the U.S.-born child of Chinese immigrants was indeed a citizen, even though his parents were not.
For decades, this settled understanding has been accepted by both major political parties, though calls to revisit or restrict birthright citizenship have surfaced periodically, especially during times of heightened debate over immigration. What makes the current moment unique is the direct clash between a sitting secretary of state’s earlier legal arguments and the administration’s active policy efforts to overturn them.
Rubio’s 2016 brief, while written in the context of a personal eligibility challenge, laid out a defense of birthright citizenship that many legal scholars believe could be decisive if the Supreme Court takes up the Trump administration’s executive order this fall. As Spiro observed, “there’s no reason why the argument he put to work in 2016 couldn’t be put to work today.” The question now is whether the nation’s highest court will be persuaded by the same logic that Rubio once championed—or whether the political winds have shifted too far for that precedent to hold.
Meanwhile, Rubio’s evolving positions have left some immigrant communities and former allies feeling betrayed. The signs put up by Keep Them Honest in May are just one example of the backlash he’s faced for supporting policies that many see as at odds with his own family’s immigrant story—and with the legal principles he once so vigorously defended. Still, his office maintains that he is firmly behind the president, even as his words from the past continue to echo in the present debate.
As the Supreme Court prepares to consider the Trump administration’s appeal, the fate of birthright citizenship—and the millions who rely on it—hangs in the balance. The arguments laid out by Rubio in 2016 may yet have a role to play in shaping America’s future, even if their author now finds himself on the other side of the political divide.