Can the President Actually End Birthright Citizenship?
- Sabrina Soto
- Feb 6
- 4 min read
Updated: Sep 11
Justin Stanley.
President Donald Trump recently signed an executive order aimed at ending birthright citizenship – for a specific category of people. The executive order directs officials to deny US birth certificates to children born in the US to parents who are residing in the US illegally. A federal judge has temporarily banned the enforcement of the executive order until legal challenges against it by 18 states and a pregnant undocumented immigrant are resolved.
The concept of birthright citizenship in the US comes from the 14th Amendment to the Constitution, which was ratified in 1868 in the aftermath of the civil war, states “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.” President Trump is relying on the “…and subject to the jurisdiction thereof…” clause to deny citizenship to children born in the US if their parents are in the US illegally. Historically, this clause has been interpreted to mean that Native Americans and the children of foreign diplomats are not US citizens.
At the time the 14th Amendment was written, Native Americans were not subject to state and federal laws in the same way US citizens are because of the principle of tribal sovereignty. This changed in 1924, when Congress passed the Indian Citizenship Act, which granted Native Americans US citizenship (but not the right to vote).
Foreign diplomats and their families residing in the US are not subject to the jurisdiction of the United States because they have diplomatic immunity, which means that they cannot be arrested even if they break the law. Today, a foreign diplomat or one of their family members having a child in the US is the only situation in which someone born in the US would not automatically become a US citizen. In both of the above instances, people born in the US could be denied US citizenship because they are in some way exempt from having to follow US laws. Illegal immigrants are not exempt from the law; if they commit a crime while in the US, they can still be arrested and charged. They can also be arrested and deported for being in the US illegally. Because of this, it seems relatively clear that illegal immigrants are subject to the jurisdiction of the United States, and therefore their children born in the US would automatically be guaranteed US citizenship by the 14th Amendment.
Historically, the US Supreme Court has interpreted the 14th Amendment as prohibiting the government from denying citizenship to the children of immigrants. In United States v. Wong Kim Ark, the US Supreme Court ruled in 1898 that Wong Kim Ark, the child of two Chinese immigrants born in San Francisco, was a US citizen because the 14th Amendment grants US citizenship to everyone born in the US and subject to US law. The court found that even though his parents both remained subjects of the emperor of China, Wong was born in San Francisco, where he and his family were subject to US laws. This case dealt with whether the 14th Amendment guaranteed citizenship to the children of legal immigrants. The Supreme Court has never been asked to consider whether the children of illegal immigrants are also guaranteed the right to citizenship if they are born in the US. The case affirmed the legal principle of jus soli, or “right of the soil”, which is the legal principle that anyone born in a country is a citizen of that country, regardless of whether the parents are citizens. Most countries in the Americas, including Mexico, use jus soli to determine citizenship of a child.
Although the Supreme Court has never been asked to rule on it, it is US policy to grant US citizenship to any child born not just in the US but also in US airspace and US territorial waters. This means that a child born on a plane flying over the US would receive US citizenship, regardless of the nationality of the parents or where the flight left from or is headed. Since this rule is based on the airspace the plane is in, a child born on a hypothetical flight from Mexico to Canada would still be granted US citizenship, even if the parents do not have legal permission to visit the US.
It appears that the only way to end birthright citizenship is by amending the US Constitution. To do so would require the approval of 2/3 of the members of the House of Representatives, 2/3 of the members of the US Senate, and the ratification by ¾ of states, which is 38 states. In today’s divided political climate, it is highly unlikely that enough Representatives, Senators, and states would all agree to make any change to the Constitution, much less a controversial one such as ending birthright citizenship.
Sources
The full text of the US Constitution, including the 14th Amendment, can be viewed here: https://constitution.congress.gov/constitution/amendment-14/
More information on the court cases seeking to have Trump’s executive order overturned https://abcnews.go.com/US/trumps-order-seeking-block-birthright-citizenship-face-legal/story?id=118408982
More information on the history of citizenship and the right to vote for native Americans. https://www.loc.gov/item/today-in-history/june-02/
Summary of United States v. Wong Kim Ark (1898) https://www.oyez.org/cases/1850-1900/169us649
Information on how citizenship is determined if a baby is born on a plane.
