Birthright citizenship

Should the US change its birthright citizenship policy? Viewpoints from multiple sides.

Jan 25, 2025

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What’s happening

President Donald Trump this week signed an executive order aimed at ending birthright citizenship for certain populations in the US including the children of undocumented immigrants. The US currently gives jus soli (birthplace-based) citizenship to anyone born in the US or its territories with certain exceptions such as the children of foreign diplomats or of members of an invading enemy power during wartime.

The order: Trump’s order would require at least one of the following for a newborn to be considered a US citizen going forward: a) The mother is lawfully present in the US on a permanent basis; b) The father is a US citizen or lawful permanent resident. It would not award citizenship to children born in the US where both parents are undocumented immigrants or on temporary visas.

The response: Shortly after the order, a number of interest groups filed lawsuits against it, including 22 states, the American Civil Liberties Union (ACLU), and a group of pregnant mothers. In response to those lawsuits, a federal judge paused the order for 14 days and will hear arguments starting Feb 6 on whether to issue a longer injunction.

Executive orders are not definitive, and there are limits to presidential authority in overriding certain laws. The lawsuits are the beginning of what is expected to be a lengthy legal fight against the order, with observers noting a change to existing birthright citizenship rights would likely require alternative legal pathways.

What is birthright citizenship: Existing jus soli birthright citizenship rights stem from Section 1 (the “Citizenship Clause”) of the 14th Amendment, ratified in 1868. It states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

A landmark Supreme Court case – US v. Wong Kim Ark (1898) – cited the language of the 14th Amendment in holding that a child of Chinese immigrants – who were living legally in the US at the time – was a US citizen. Since that ruling, the 14th Amendment has been interpreted by courts to provide jus soli citizenship rights to a variety of populations including the children of undocumented immigrants.

Fitting within Trump’s broader agenda aimed at reeling in immigration, the executive order has surfaced a variety of arguments around birthright citizenship in the US. See the notable viewpoints below and let us know what you think.

Notable viewpoints

More supportive of universal birthright citizenship:

Birthright citizenship for children of undocumented immigrants is protected by the Constitution and Supreme Court precedent.

The text of the Supreme Court ruling in US v. Wong Kim Ark (1898) said that the right to citizenship “includes children born, within the territory of the United States, of all other persons, of whatever race or color,” establishing precedent that children born even of undocumented immigrants would have citizenship rights. Such precedent has been reinforced by court interpretations in the years since.
The phrase “subject to the jurisdiction [of the United States]” within the 14th Amendment has been understood to equate to the ability to be prosecuted in the US, which would not apply to foreign diplomats and their children (the existing exceptions to birthright citizenship) but would apply to children of undocumented immigrants.
Conservative legal scholars and professionals, themselves, echo the fact that the 14th Amendment protects birthright citizenship for children born in the US. For example, Trump-appointed judge to the Fifth Circuit US Court of Appeals wrote in 2015 that “Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most US-born children of aliens, including illegal aliens.”
Some opponents argue that the 14th Amendment only protects birthright citizenship rights for people with no allegiances to other countries, but dual citizenship – which is legal in the US – already allows for allegiance to another country in addition to the US. Moreover, many children of undocumented immigrants likely feel more allegiance to the US than the country their parents come from.

The US benefits from existing jus soli birthright citizenship.

Birthright citizenship for children of undocumented immigrants helps assimilate people from different backgrounds into the political and social life of America quickly, and strengthens the fabric of the country.
Ending birthright citizenship would create a “self-perpetuating” class of individuals socially excluded for generations through the cycle of reproduction. A 2010 Migration Policy Institute Study found that ending birthright citizenship for undocumented immigrants would increase the unauthorized population by 4.7M by 2050.
Arguments that the availability of birthright citizenship significantly increases its exploitation by immigrants are exaggerated. Undocumented immigrants that are parents of a US citizen aren’t immune from being deported and their child can’t sponsor them for green cards until that child turns 21 and can support their parents financially.

Birthright citizenship for the children of undocumented immigrants is a bedrock principle of the country.

“[Birthright citizenship] is one of the finest aspects of American exceptionalism that American citizenship is extended to all who enter the world within America’s borders…That isn’t a ‘ridiculous’ policy but a sublime one, and it would be a grievous error to overturn it.” (Jeff Jacoby, Boston Globe.)
“There’s also a moral case for leaving birthright citizenship in place, including for the offspring of undocumented parents, and it’s similar to the case that Mr. Trump has made for accommodating the Dreamers. Why punish children for the sins of their parents?” (Wall Street Journal Editorial Board.)

More opposed to universal birthright citizenship:

The 14th Amendment does not explicitly protect birthright citizenship for children of undocumented immigrants.

The Supreme Court ruling in US v. Wong Kim Ark (1898) simply held that children born to legal immigrants were citizens of the US. It did not explicitly rule that children of undocumented immigrants are included and such an interpretation is a misreading of the Court’s intent.
The condition in the 14th Amendment’s Citizenship Clause that says “subject to the jurisdiction [of the United States]” was meant to prevent individuals that had a weak relationship with the US or an allegiance to another country from being automatically granted citizenship. The courts interpreted the ruling that way for decades after its initial ratification during a time where illegal immigration was not a common concept.
The Civil Rights Act of 1866 first solidified citizenship to newly freed slaves, employing the language “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” While advocates of universal birthright citizenship say the 14th Amendment’s Citizenship Clause – ratified two years later in 1868 – was meant to override the Civil Rights Act’s language with its “subject to the jurisdiction [of the United States]” phrasing, the amendment was more likely meant to cement the same rights into the Constitution, which would mean that “subject to the jurisdiction [of the United States]” should be interpreted as “not…subject to a foreign power.”
The US v. Wong Kim Ark (1898) ruling cited by proponents of universal birthright citizenship was a close, 5-4 decision in which dissenting Chief Justice Melville Fuller contended the 14th Amendment does not protect birthright citizenship for anyone born within the territorial boundaries of the US, underscoring how such a broad interpretation cited by proponents of universal birthright citizenship was not definitive at the time.

Universal birthright citizenship encourages illegal immigration and contributes to challenges at the border.

Universal birthright citizenship allows the children of foreign-born criminals to have citizenship and can enable foreign adversaries to establish roots in the US.
Birthright citizenship encourages “birth tourism,” with examples of people emigrating to the US in misleading ways and having their babies within its borders to give their children US citizenship, taking advantage of the country’s laws.
“‘Birthright citizenship’ may sound benign, but thanks to an overreaching Supreme Court decision 126 years ago, it’s the biggest legal hole in our border.” (Daniel McCarthy, New York Post.)
“Birthright citizenship is the policy whereby the children of illegal aliens born within the geographical limits of the US are entitled to American citizenship — and, as Trump says, it is a great magnet for illegal immigration.” (Edward Erler, National Review.)

Ending universal birthright citizenship would not increase the undocumented immigrant population.

Arguments that ending universal birthright citizenship would balloon the population of undocumented immigrants are misleading and based on an assumption that existing undocumented immigrants aren’t sent back to their country of origin. Paired with tighter immigration enforcement, illegal immigration numbers would not increase.

Other viewpoints:

Trump’s repeated statements that the United States is the “only” country to provide birthright citizenship are inaccurate and misleading. More than 30 countries, including Mexico and Canada, award a form of universal birthright citizenship, with some variation in their laws. The UK did choose to end its birthright citizenship policy.
Congress enacted a statute in 1951 – Section 1401 – that codified the 14th amendment into statutory law and signaled Congress’s intent to use its authority to define citizenship, making it unlikely a president has the power to change citizenship definitions by executive order as opposed to an act of Congress.
It’s possible Trump is starting off with an executive order against universal birthright citizenship knowing that it is legally flimsy in order to shore up support for other anti-immigration policies that will have more legal grounding.

From the source

Snippets

The Pentagon is sending 1,500 additional active duty troops to the southern border to support President Trump’s plans for tightening immigration. They will initially aid in constructing barriers and fly helicopters to support Border Patrol agents.
Congress passed the Laken Riley Act, which will require Immigration and Customs Enforcement (ICE) to detain undocumented immigrants convicted of theft. The bill goes to President Trump’s desk as the first bill for him to sign into law.
Israel launched a military ground attack in the West Bank in what it described as a counterterrorism operation. The offensive reportedly killed at least 9 Palestinians and wounded at least 40.
Former President Biden preemptively pardoned 5 members of his family and high-ranking former officials including Dr. Anthony Fauci, General Mark Milley, and former Representative Liz Cheney. He said the pardons were not in response to any wrongdoing by the recipients but rather to protect them from politically-motivated retribution.
President Trump issued an executive order to delay the TikTok ban for 75 days, giving it more time to find an acceptable workaround. TikTok was available to users after going “dark” for one day but was not available on app stores. (See our previous coverage on arguments for and against the ban.)

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