On January 20, 2025, Donald J. Trump was sworn in as the 47th president of the U.S., making quick work of establishing his agenda through several written directives ordering the government to specific actions, also known as executive orders (EOs). One of these EOs was a directive to end birthright citizenship [1]. The move has faced immense legal pushback, prompting injunctions from four federal judges and being deemed “unconstitutional” by many. The EO to end birthright citizenship is an unprecedented executive action that sets the stage for a broader discussion on the interpretation of citizenship in the United States, as outlined in the Fourteenth Amendment. 

What is Birthright Citizenship?

Birthright citizenship, or jus soli (meaning “right of the soil” in Latin), is a constitutional principle that codifies the right to claim American citizenship upon birth in the United States [2]. This right is codified in the Fourteenth Amendment of the U.S. Constitution with what was once thought as very clear language: “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” [3]. 

The right of birthright citizenship was propelled through the unfortunate ruling made in Dred Scott v. Sanford. Dred Scott was an enslaved man from Missouri who moved to the free state of Wisconsin. Upon moving to the northern free state and then being urged to return to Missouri, Scott sued for his freedom, arguing that since slavery was prohibited in Wisconsin, he should be granted freedom. Scott’s case made its way up to the Supreme Court of the United States. In the infamous seven-to-two Supreme Court decision, the court ruled that enslaved peoples were not actually citizens of the U.S. and could never be citizens under the current Constitution, and could not, therefore, sue or expect protection from the government. This shameful ruling was overturned by the 13th and 14th Amendments of the U.S. Constitution, which protected the rights of individuals to be considered citizens of the United States [4]. Dred Scott v. Sanford highlights why birthright citizenship has been a valued cornerstone of American democracy, ensuring all Americans have equal rights and can claim rightful citizenship. Understanding the history behind the 14th Amendment solidifies the power of the protections it codifies and begs the question of why an executive would be used to erase its significance. 

The Executive Order to End Birthright Citizenship

President Trump’s executive order opens with the statement, “The privilege of United States citizenship is a priceless and profound gift.” This language, and the subsequent language used throughout the EO, creates a tone surrounding citizenship that insinuates an exclusive privilege, rather than a right that is given to those born on American soil. This EO calls for the government to prohibit granting citizenship to individuals born in the U.S. when the individual’s parents are undocumented immigrants, or the individual’s mother is lawfully present in the U.S., but temporarily, and the father is an undocumented immigrant. The effects of this order were intended to be immediate, restricting the status of citizenship to anyone born thirty days after January 20, 2025 [5].

 Importantly, the order seeks to reinterpret the Fourteenth Amendment and birthright citizenship by claiming that it was never intended to “extend citizenship universally to everyone born within the United States.” The notion that birthright citizenship is not universal comes from the clause in the amendment, “subject to the jurisdiction thereof.” This clause has been interpreted to include those born on U.S. soil, with an exception made for children of foreign diplomats. However, President Trump, through this EO, aims to reinterpret this clause to argue that undocumented immigrants are not fully under U.S. jurisdiction and, therefore, are not protected by the Fourteenth Amendment.

 However, it is important to consider that the notion that undocumented immigrants are not “subject to the jurisdiction” of the U.S. government may be contradictory to how illegal immigration is handled in the U.S. judicial system. The phrase in the 14th Amendment, “subject to the jurisdiction thereof,” has raised debate in legal scholarship but has been commonly accepted to include natural-born citizens. Although by the logic outlined in the EO, immigration policy would theoretically not apply to undocumented immigrants, broader immigration policies treat undocumented immigrants as fully subject to U.S. laws. For instance, existing immigration laws, including deportation proceedings, treat undocumented immigrants as fully subject to U.S. authority. This contradiction in treating undocumented immigrants as subject to U.S. jurisdiction while actively excluding them from the “subject to the jurisdiction thereof” clause of the 14th Amendment may undermine the very legal basis for this EO. 

Legal and Constitutional Challenges

President Trump’s order, however, is problematic due to the legal consequences it creates. Most importantly, the constitutionality of this EO has been challenged due to the protection of birthright citizenship by the Fourteenth Amendment. The Supreme Court has upheld birthright citizenship before, as seen in the famous case of U.S. v Wong Kim Ark. Wong Kim Ark was a natural-born citizen, born in San Francisco, California. However, Ark’s parents were Chinese citizens residing in China. Ark, after taking a trip to China to visit his parents, was denied entry upon returning on the basis that he was not a citizen. Ark’s case made it to the Supreme Court, where the court upheld that Wong Kim Ark was indeed a citizen of the United States under the Fourteenth Amendment. The court stated that he was a citizen by birth, being born in the U.S., and that since his parents were not government officials in China, he could rightfully claim citizenship [6]. The precedent set by U.S. v. Wong Kim Ark shows the broad and universal implications of the Fourteenth Amendment, solidifying that those born on American soil are deemed automatic citizens. 

Given these legal challenges, the attorneys general of twenty-two states have challenged Trump’s executive order through federal lawsuits [7]. In fact, New Jersey’s Attorney General Matt Platkin has made a powerful statement regarding the executive order, stating, “The president cannot, with a stroke of a pen, write the 14th Amendment out of existence, period” [8]. Attorney General Phil Weiser of Colorado made a similar statement, stating, “President Trump may believe that he is above the law, but today’s preliminary injunction sends a clear message: He is not a king, and he cannot rewrite the Constitution with the stroke of a pen” [9]. 

As of now, four federal judges have issued temporary injunctions on the EO. These injunctions serve to block the effects of the EO, allowing for the practice of birthright citizenship to continue until lawsuits can proceed to determine and verify the Constitutionality of this action. 

The statements made by the attorneys general and the injunctions issued by federal judges depict the hurdles that President Trump’s EO is facing. The pushback has concerning implications, suggesting that fundamental liberties that are protected by the Constitution and have been upheld by Supreme Court precedent for 150 years can be quickly undermined. At the same time, the judicial branch of government is demonstrating the limits of President Trump’s power and ensuring that the constitutional separation of powers remains intact. 

Broader Implications

If President Trump’s executive order is allowed to take effect, which would happen if the Supreme Court rules it constitutional, this could undermine the rights encoded in the Constitution by creating a dangerous precedent that allows for presidents to take away fundamental rights through one order, despite significant legal pushback. Questions will arise over who defines citizenship and how far executive power can extend.

Moreover, the citizenship benefits that undocumented families can earn through birthright citizenship may no longer be enjoyed. For instance, undocumented families can gain indirect access to welfare, such as food assistance or Medicaid, through their U.S.-born children [10]. In fact, forty percent of undocumented families receive federal welfare, highlighting the devastating impact that ending birthright citizenship may have on these families. Further, the ending of birthright citizenship may limit legal pathways to citizenship and even create a basis for deportation. For example, natural-born citizens, upon turning eighteen, can sponsor family members, including their parents, siblings, an overseas spouse, or even their children if they are unmarried [11]. If birthright citizenship is ended, then not only are American-born children no longer citizens, but they no longer have the opportunity to extend citizenship to their families. If American-born children are now classified as undocumented, they can become subject to deportation, along with their families, whom they can no longer sponsor. 

Overall, it is important to consider that this action may redefine the status of many Americans already living in the U.S. as birthright citizens their whole lives. Although the order is not retroactive, meaning that it will not revoke the status of current natural-born citizens, the order raises concerns about how future birthright citizenship cases may be handled. For instance, if another case like Wong Kim Ark were to arise, would this EO change the court’s ruling? Redefining birthright citizenship may have a profound social and legal impact on the meaning of American citizenship. 

What’s Next?

Given the nature of the situation, this issue is likely to reach the Supreme Court. Precedent cases, like U.S. v. Wong Kim Ark, are likely to play a major role in the Justices’ final decision, where the Supreme Court will have to consider the history and implications of their decision. So far, the judicial branch of government has taken some action in shaping the outcome of President Trump’s birthright citizenship EO through the issuance of temporary injunctions. However, as the lawsuits play out, the legislative branch may get involved in imposing checks on President Trump’s executive power, potentially through congressional action. 

Ultimately, the decision regarding the termination of birthright citizenship is an unprecedented constitutional battle that has the potential to significantly alter the nature of American citizenship and redefine the protections codified in the Fourteenth Amendment.  Decisions made outside of the executive branch, especially in the judicial branch, will be paramount for determining whether birthright citizenship will remain an American tradition or be terminated.