The U.S. Supreme Court is currently reviewing the legality of an executive order issued by former President Donald Trump that aims to alter the interpretation of birthright citizenship under the 14th Amendment. The order seeks to deny U.S. citizenship to children born in the United States under specific conditions related to their parents' immigration status.
This case presents a significant legal challenge to a long-standing understanding of U.S. citizenship and has been blocked by lower courts since its signing.
Executive Order Details
Former President Trump signed the executive order, titled "Protecting the Meaning and Value of American Citizenship," on January 20, 2025, the first day of his second term. The directive proposes to deny U.S. citizenship to children born in the country if:
- The mother is present unlawfully and the father is not a U.S. citizen or lawful permanent resident.
- The mother has lawful temporary status (such as a student or work visa) and the father is not a U.S. citizen or lawful permanent resident.
The order asserts that the 14th Amendment's Citizenship Clause does not universally extend citizenship to everyone born in the U.S., specifically excluding those not "subject to the jurisdiction thereof." It directs federal agencies to withhold documents recognizing U.S. citizenship for children born under these circumstances.
The policy is intended to be prospective, applying to babies born more than 30 days after its effective date, and was presented as a measure to disrupt "chain migration" and address issues like "birth tourism."
Constitutional and Historical Context
Birthright citizenship in the U.S. is primarily rooted in the 14th Amendment, adopted after the Civil War. The Citizenship Clause states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States." This clause was enacted partly to ensure citizenship for former slaves and has since been codified in federal law. Traditionally, this clause has been interpreted to grant citizenship to nearly all individuals born on U.S. soil, reflecting the legal principle of jus soli, or "right of soil."
A key precedent is the 1898 Supreme Court case United States v. Wong Kim Ark. In a 6-2 decision, the Court affirmed that the amendment grants citizenship to most individuals born in the U.S., including children of foreign nationals with "permanent domicil and residence," with exceptions for children of foreign diplomats, invading enemies, and Native American tribes (the latter two exceptions no longer apply).
Legal Arguments for the Executive Order
Solicitor General D. John Sauer, representing the administration, argues that the 14th Amendment primarily intended to grant citizenship to freed slaves and their descendants, not to children of undocumented or temporary residents. Key points of the administration's argument include:
- Citizenship is guaranteed only to those "completely subject" to the nation’s political jurisdiction, owing "direct and immediate allegiance" to the U.S.
- Children of parents with temporary status lack sufficient ties, and undocumented immigrants, by defying the law, are inconsistent with establishing allegiance.
- The 1898 Wong Kim Ark decision has been "misread" since the mid-20th Century, leading to citizenship being granted to individuals who do not qualify.
- This alleged misinterpretation has "powerfully incentivized illegal entry" and encouraged "birth tourism," which the administration states "degrades the meaning and value of American citizenship."
- Republicans supporting the order contend that "subject to the jurisdiction thereof" does not apply to undocumented immigrants, as they owe allegiance to another country.
- The administration maintains that the scope of federal immigration law depends on the actual meaning of the Citizenship Clause, not Congress's previous understanding.
Legal Arguments Against the Executive Order
Lawyers for the American Civil Liberties Union (ACLU) and other plaintiffs argue that the 14th Amendment guarantees citizenship by birth, irrespective of parents' immigration status, nationality, or domicile, with only narrow exceptions. Their arguments include:
- The English common law established citizenship by birth without a domicile requirement for children of foreign nationals.
- The phrase "subject to the jurisdiction" means being subject to U.S. law.
- They cite the 1844 New York Court of Chancery decision in Lynch v. Clarke and the 1898 Supreme Court decision in Wong Kim Ark, both affirming birthright citizenship.
- The ACLU states the Trump administration is seeking to overturn a 128-year-old precedent without sufficient justification and is attempting to rewrite settled law.
Opponents warn that accepting the administration's arguments would "cast a shadow over the citizenship of millions upon millions of Americans, going back generations" and could initiate a "constitutional revolution." They suggest that if birthright citizenship is to be changed, it should be done through a constitutional amendment.
Plaintiffs also contend the executive order violates federal immigration law, as Congress in 1940 and 1952 understood "subject to the jurisdiction thereof" to incorporate the common-law rule of citizenship by birth.
Procedural History
The executive order's legality was challenged soon after its signing and has been consistently blocked by lower courts. Three consolidated cases previously focused on the scope of nationwide injunctions, with the Supreme Court agreeing to curtail judges' ability to issue them in that instance. Following this, the ACLU and other groups filed a class-action lawsuit on behalf of children at risk of being denied citizenship.
U.S. District Judge Joseph Laplante in New Hampshire provisionally certified the class and blocked the administration from enforcing the order against them, ruling that the order "likely violates" both the Constitution and federal law. No lower court that has considered challenges to the order has supported the Trump administration's interpretation of the 14th Amendment. The Trump administration appealed this decision directly to the Supreme Court, which agreed in December to review the directive's legality.
Global Comparisons
Approximately three dozen countries, predominantly in the Americas, grant citizenship to children born within their borders based on jus soli. Most other nations adhere to the principle of jus sanguinis, or "right of blood," where a child's citizenship is determined by that of their parents, regardless of birthplace. For example:
- None of the 27 European Union member states provide automatic, unconditional citizenship to children born on their territory to foreign citizens.
- Australia abolished automatic birthright citizenship in 1986, requiring at least one parent to be an Australian citizen or permanent resident.
- Germany modified its citizenship laws in 2024 to grant automatic citizenship to children born in Germany to non-German parents if one parent has legally resided in the country for over five years with unlimited residency status.
- The UK abolished automatic birthright citizenship in 1983 through an Act of Parliament, not an executive order. The UK's Windrush scandal, where Caribbean immigrants struggled to prove citizenship, has been cited as a cautionary example of potential bureaucratic challenges.
Potential Implications and Concerns
Estimates from the Migration Policy Institute and Pennsylvania State University’s Population Research Institute suggest that over 250,000 babies born annually could be affected by the executive order. The restrictions would apply not only to individuals present illegally but also to those legally in the United States on temporary visas or applying for green cards.
If the Supreme Court rules in favor of the Trump administration:
- The administration has stated the executive order is prospective, applying to babies born more than 30 days after it takes effect. U.S. Citizenship and Immigration Services and the Social Security Administration issued guidance in July on how the order would apply, despite the directive remaining blocked.
- The ACLU and a group of over 200 Democratic members of Congress warn that such a decision could lead to "millions of Americans" losing their citizenship, impacting rights such as voting and obtaining passports.
- Concerns have been raised regarding the practical implementation of such a policy, including how federal officials would determine citizenship without birth certificates and the potential impact on hospitals and state governments.
Critics predict a "tidal wave of legal confusion and chaos."
- The U.S. Conference of Catholic Bishops has expressed concerns about the humanitarian issues that could arise from generations of potentially stateless children.
- Population experts suggest that repealing birthright citizenship could lead to an increase of 2.7 million people living illegally in the U.S. by 2045, as these individuals would no longer qualify for citizenship.
Economic and Social Context
Arguments against ending birthright citizenship often highlight the economic contributions of undocumented immigrants, who reportedly paid an estimated $90 billion in federal, state, and local taxes and held nearly $300 billion in spending power in 2023. Many use individual tax identification numbers (ITINs) to pay taxes without gaining legal immigration status or access to public benefits.
It is argued that using birthright citizenship for "chain migration" is impractical, as a U.S. citizen typically can only petition for parents after turning 21, implying decades of living under the constant risk of deportation and without access to most public benefits or jobs.
Supreme Court Proceedings
Former President Trump was present for a portion of the arguments, an unusual appearance for a former president. During oral arguments, some Supreme Court justices expressed skepticism regarding the administration's case. Chief Justice John Roberts questioned the Solicitor General's reference to "birth tourism" and the idea of a "new world," stating, "It's the same Constitution."
The Supreme Court previously addressed a technical issue concerning lower courts' ability to issue nationwide injunctions against presidential directives, limiting their scope. This week, the court directly debated the legality of the executive order itself. A decision from the Supreme Court is anticipated by late June or early July.