“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 1, Fourteenth Amendment.
On July 9, 1868, the Fourteenth Amendment of the Constitution was ratified to, in part, insure the perpetuation of the provisions in the Civil Rights Act of 1866 that extended citizenship to previously enslaved, as well as free, black people…citizenship that had been denied under the 1852 Supreme Court ruling in Dred Scott v Sanford.
Since its ratification a great deal of debate has centered around the meaning of the phrase, “subject to the jurisdiction thereof,” which is found in the citizenship clause. That is because it is key to determining who is and is not covered by the implicit, seemingly blanket, promise of unrestricted birthright citizenship to anyone born on US soil. (See Note 1)
Fast forward to January 20, 2025, the date on which President Donald Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” (See Note 2) The goal of the order: to end unrestricted birthright citizenship, as defined in the Fourteenth Amendment of the Constitution, for children born in the United States to non-citizen parents, including those lawfully present on temporary visas. The executive order specifies that individuals born on U.S. soil on or after February 19, 2025, would not automatically receive citizenship if their parents are either unlawfully present or in the country temporarily. It essentially challenges the notion that people who enter the country illegally or are legally here on a temporary basis are, in fact, subject to the jurisdiction of the United States and places them in the same category of children born here to diplomats and ambassadors or to hostile occupiers of the US. This marks a significant shift from the longstanding interpretation of the Fourteenth Amendment, which has traditionally granted citizenship to nearly all individuals born in the U.S., regardless of their parents’ immigration status.
Not surprisingly a number of legal challenges were mounted by various states questioning the constitutionality of the executive order. Those challenges resulted in the issuance of nationwide preliminary injunctions blocking its implementation. And more recently, the Ninth Circuit Court of Appeals upheld a Washington state lower court ruling thereby holding the executive order in abeyance. This insures that the issue of birthright citizenship will find its way to the Supreme Court for a final adjudication.
How will the current Supreme Court rule? What will be the basis for its ruling? What judicial lens will be applied by the Supreme Courts in coming to a majority opinion? An originalist view which considers the plain language of the amendment while also considering the legislative record leading up to the ratification of the amendment? Or will it be a living constitutionalism view which takes into consideration the evolving nature of immigration legislation and processes, as well societal and cultural conditions?
What arguments and counter arguments might be advanced to support and/or curtail continued unrestricted birthright citizenship? Here are a few.
1. Slaves transited to the US after 1808 (when the importation of slaves was outlawed) were brought here illegally, and their children were ultimately covered by the fourteenth amendment, therefore it follows that the children born to current day illegal immigrants are covered by the fourteenth amendment.
The counter to this argument is that it ignores a distinction between those brought here involuntarily by others in violation of the law and those who themselves voluntarily come here in violation of the law.
2. If citizenship is not granted under the doctrine of “jus soli” (defined as “right of the soil”) children born to illegal immigrants would be stateless.
In fact, most countries from which illegal immigrants come grant citizenship based, in part, on the doctrine of “jus sanguinis” (defined as “right of the blood”)…so very few children born here to illegal immigrants would be stateless. This effectively marginalizes this argument.
3. The simple language of the Fourteenth Amendment completely severs the child’s status from that of their parent since it talks only about “all persons born or naturalized in the United States.”
This argument holds that, since the amendment does not talk about the status of the parent but only focuses on where the person is born, who the parents are and their citizenship status is of no import.
But how do you reconcile this stance with the fact that, if 1) a child is born to US citizen parents while they are traveling outside the country, citizenship is extended to the child solely on the basis of the citizenship status of one or both parents or 2) the child is born outside the United States to immigrant parents who later become naturalized citizens and the child is under 18 at the time citizenship is earned by the parents it is also extended to the child. In the latter two cases reliance on the principle of “jus sanguinis” seems to contradict on its face the assumption of unrestricted birthright citizenship for those born in the United States as it, in fact, relies on the parent status. This dissonance begs the question of whether there is room to apply a combination of both standards depending on the situation.
4. Supreme Court precedent specifically supports birthright citizenship for children born in the US to illegal immigrants.
Supporters of the extension of automatic citizenship to those born here to illegal immigrants consistently cite the favorable ruling in one Supreme Court case…US v Wong Kim Ark. In that 1898 case the court found that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China”, automatically became a U.S. citizen at birth.
But, as specified in the ruling, it is notable that Wong was born to parents who were here legally and had a “ permanent domicile and residence” in the US at the time of his birth. In contrast, undocumented immigrants are here illegally and are subject to deportation ( US citizens are not subject to deportation) so regardless of how long they may reside in the US it is far from a “permanent” situation. Moreover there are no other cases ruled on by the Court since Wong that explicitly deal with the issue of those born to illegal immigrants. The fact is that continued extension of birthright citizenship to children born to illegal immigrants has been based in large part on administrative decisions tied to what some might say is a very liberal and faulty interpretation of the Wong decision.
Taking all the above into consideration, there are a few paths the court could take in arriving at a decision.
1. Maintain the status quo based on the simple text of the fourteenth amendment and how it has been applied in the past which supports automatic birthright citizenship for those born here, regardless of their parent’s status.
2. Reject past precedent by finding that the facts and circumstances of the Wong case do not apply to those born to parents who are here illegally. Rule that children born to illegal immigrants, (including to those with expired visitor visas, work visas, or student visas) are not subject to the birthright provisions of the Fourteenth Amendment because it contemplated that the parents would be here legally at the time of the birth, which was implicit in the Wong case. At the same time, reassert that anyone born to someone who is here legally, regardless of whether it is temporary, is eligible for birthright citizenship.
3. Rule that children born here to illegal immigrants or to those here legally, but temporarily on visitor visas, work visas, student visas, are not eligible for birthright citizenship. Those born to individuals here on a permanent visa would continue to be eligible for birthright citizenship. Justify their ruling by recognizing that at the time the Fourteenth Amendment was drafted immigration laws were minimal and the concept of illegal immigration as it is understood today did not exist pointing out that there were no immigration enforcement and visa systems at that time.
So which path will the Court take? I believe the justices, regardless of their judicial lens, will, in the majority, gravitate to the common sense interpretation and application of the Fourteenth Amendment presented in the third path. In doing so, the US will join other western democratic countries who have moved from a policy of unrestricted birthright citizenship to qualified birthright citizenship. (See Note 3.)
Note 1: The concept of “jus soli” (right of the soil) has its origins in feudal times and English common law where people born on a royal’s land were viewed as subjects of that royal. This concept was roundly rejected by our revolutionary forefathers who rebelled against British rule. Yet somehow the concept persisted and evolved into the Fourteenth Amendment of the US Constitution. The only acknowledged exceptions, due to their not being subject to the jurisdiction of the United States, are children born here to accredited foreign diplomats and their families (ambassadors , diplomats and embassy workers) or to those who might occupy our land as the result of war or invasion.
Note 2: Simultaneous with the issuance of the executive order, legislation titled the Birthright Citizenship Act of 2025 was introduced in the House of Representatives. Similar to Trump’s executive order, this legislation seeks to narrow the application of birthright citizenship by further limiting those considered to be “subject to the jurisdiction” of the United States under Section 1 of the Fourteenth Amendment to a person who is born in the United States of parents, one of whom is (1) a citizen or national of the United States; (2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or (3) an alien with lawful status under the immigration laws performing active service in the armed forces (as defined in section 101 of title 10, United States Code).” Whether Congress has the power, through legislation, to effectively narrow or qualify the application of birthright citizenship as broadly defined in the constitution or whether a constitutional amendment would need to be required is an open question which will undoubtedly find its way to the Supreme Court for a decision.
Note 3: According to research by the Library of Congress of the 94 countries that provide for some version of birthright citizenship, only 33 do so, like the United States, on an unrestricted basis. Australia, Ireland, and the United Kingdom who at one time provided for unrestricted birthright citizenship have all transitioned to a qualified version since 1983. The reasons for doing so were to curtail birth tourism and the exploitation of benefits each country provided to its citizens. Canada and Mexico still extend citizenship to those born in their respective country… without restriction. It is worth noting and ironic that apart from Canada many, if not, most of the countries that still provide for unrestricted birthright citizenship are the very countries that are the source of most of the illegal immigration that the US is experiencing.