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President Trump Trump has signed an executive order attempting to end birthright citizenship in the U.S. — a guaranteed by the Fourteenth Amendment to the U.S. Constitution, affirmed by the Supreme Court for over 100 years, and codified in Federal regulations.
The Fourteenth Amendment
The Fourteenth Amendment to the U.S. Constitution states that “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.”
The Fourteenth Amendment was ratified in 1868 in the wake of the Civil War. The war had been sparked in part by a tragically wrong Supreme Court decision, Dred Scott v. Sandford, which held that persons of African descent born in the U.S.–whether free or slaves–were not citizens. The Amendment was meant to overturn Dred Scott.
Apart from that, the Amendment was made to constitutionalize the existing common law on citizenship. The common law followed the principle of jus soli, meaning “‘right of soil.” It is the principle that anyone born in the territory is a citizen. The common law included exceptions for children that the country had no jurisdiction over: children born to foreign diplomats or to hostile occupying forces.
The Executive Order Order
Trump’s executive order claims that:
“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
The order is not retroactive. It applies “only to persons who are born within the United States after 30 days from the date of this order.”
Currently, the citizenship of babies born in the United States is documented in a two-step process.
First, the state or territorial government will issue a birth certificate confirming where and when the birth took place. The birth certificate does not include any information about the immigration status of the baby’s parents.
Second, when that baby (or the parents, on the child’s behalf) applies for a passport, the birth certificate showing that the baby was born on U.S. soil is enough to prove citizenship. No other documentation is required.
But the order indicates that in 30 days (i.e., by Feb. 17, 2025), all federal agencies will be required to confirm the immigration status of the parents before determining the child is a U.S. citizen. That responsibility will fall to the State Department before issuing a passport and to the Department of Homeland Security before issuing a certificate of citizenship. The Commissioner of Social Security, Department of Agriculture, and the Centers for Medicare and Medicaid Services will also have to make such determinations.
What Status Will Children Deprived of Birthright Citizenship Have?
The executive order makes no legal argument justifying why the Fourteenth Amendment does not provide birthright citizenship to the categories of children listed in the order.
Nor does the order explain what immigration status these children will have.
For sake of comparison, children born in the U.S. to accredited foreign diplomats may register for permanent resident status or apply within the United States for a diplomatic (A, C-2, C-3, G, or NATO) visa, under 22 C.F.R. § 41.111(b)(2).
In contrast, the children born in the United States to nonimmigrants in other categories are not eligible to apply for within the United States for visas to accompany their parents. The administration could promulgate such rules. In the absence of such rules, the children–if deprived of birthright citizenship–would need to leave the country to apply for a U.S. visa abroad.
A potential danger is that under the current statute such children—if denied birthright citizenship—would be considered unlawfully present in the country according to statute: “an alien is deemed to be unlawfully present in the United States [if] present in the United Staters without being admitted or paroled.” INA § 212(a)(9)(B)(ii). That could give the administration the power to deport them rather than issue a visa within the United States.
I’m left with the feeling that it’s not just an oversight that the order fails to explain its interpretation of the Fourteenth Amendment and what immigration status the children deprived of birthright citizenship will have. Instead, uncertainty, chaos, and spreading fear seem to be the point of the executive order.
Ignoring Federal Regulations
The executive order ignores Department of Homeland Security regulations interpreting the Fourteenth Amendment, which state: “A child born in the United States is born subject to the jurisdiction of the United States and is a United States citizen if the parent is not a ‘foreign diplomatic officer’.” 8 C.F.R. 101.3(b).
Can the president through an executive order require federal agencies to ignore their own regulations? Not according to the Congressional Research Service.
Ignoring a Century of Supreme Court Precedent
The executive order’s claim that birthright citizenship doesn’t cover the children of certain undocumented immigrants and legal nonimmigrants ignores a century of contrary Supreme Court precedent.
To be “subject to the jurisdiction” of the U.S. is simply to be subject to the authority of the U.S. government. The federal government clearly has jurisdiction over U.S. born children of undocumented immigrants. For example, the federal government would not hesitate to charge an undocumented immigrant with a crime if they disobey U.S. law.
Most notably, the Supreme Court in 1898 in the case of United States v. Wong Kim Ark, ruled that a child born in San Francisco to Chinese parents was a U.S. citizen and therefore could not be barred from returning to the U.S. after a trip abroad:
“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
The Supreme Court’s decision in Wong Kim Ark did not specifically discuss the citizenship status of children of unauthorized immigrants. That issue was, however, addressed in 1982, in Plyler v. Doe, when the court ruled that undocumented children were entitled to free public education. The court relied on another part of the Fourteenth Amendment, its equal protection clause, and it interpreted language similar to that in the citizenship clause. The Plyler court noted that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
The Executive Order is Bad Policy
President Trump styles himself as a conservative supporter of the strict constructionist or originalist view of constitutional interpretation. It is hypocrisy for him to ignore the plain meaning of the Fourteenth Amendment in order to issue the proposed executive order. Since birthright citizenship is the law of the Constitution, it cannot be changed through executive order or even legislation, but only through amending the Constitution.
Finally, if one day we do debate amending the Constitution to change the Fourteenth Amendment as a way to combat unauthorized immigration, consider what we could lose. Because of birthright citizenship, in America each person is born equal. Nobody is born into a low caste, and nobody with exalted status. All who have the fortune to be born in this land inherit the right to its freedoms and protections. Must we sacrifice this American value as the price of combatting unauthorized immigration?
Challenges to the Executive Order
Lawsuits have been filed to challenge the order, including but not limited to:
- New Hampshire Indonesian Community Support v. Trump (Case No. 1:25-cv-38): This case was filed by a coalition of civil rights and civil liberties groups led by the ACLU. It was filed with the U.S. District Court for New Hampshire.
- Casa, Inc. v. Trump (Case No. 8:25-cv-00201): This case has been filed with the U.S. District Court for Maryland.
- State of New Jersey v. Trump (Case No. 1:25-cv-10139): This case was filed by some 18 states with the U.S. District Court in Massachusetts.
- State of Washington v. Trump (Case No. 2:25-cv-00127-JCC): Plaintiffs are the states of Washington, Oregon, Arizona, and Illinois. The case was filed with the U.S. District Court for the Western District of Washington.
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