While President Trump has signed hundreds of executive orders in his first week back in office, probably the most contested is his executive order ending birthright citizenship for illegal immigrants. The order, titled “Protecting the Meaning and Value of American Citizenship,” has already been challenged legally by at least 22 attorneys general. Will it survive?
This debate isn’t new … and in the immigration discourse, it’s not a matter of undoing birthright citizenship entirely—the question focuses narrowly on automatic granting of U.S. citizenship to children born on American soil, whose parents are illegal immigrants. At the heart of this issue lies the Fourteenth Amendment's Citizenship Clause, which reads:
"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."
Supporters and opponents of birthright citizenship diverge sharply in their interpretations of this clause, each side drawing on legal precedent, historical context, and the Constitution’s text to support their views. This isn’t a simple question to resolve. Here’s a closer look at the legal arguments on both sides of this contentious issue.
The argument for birthright citizenship
Proponents of birthright citizenship argue that the plain language of the Fourteenth Amendment is unequivocal. They assert that anyone born on U.S. soil – except children of foreign diplomats, enemy combatants, or sovereign Native Americans (under historical rules) – is "subject to the jurisdiction" of the United States and therefore entitled to citizenship.
This interpretation finds strong support in the Supreme Court’s landmark decision in United States v. Wong Kim Ark (1898). In that case, the Court held that a child born in the U.S. to Chinese parents, who were not U.S. citizens, was nonetheless a citizen under the Fourteenth Amendment. The ruling solidified the principle of jus soli – citizenship by birthplace – and established that almost everyone born within U.S. borders is subject to its jurisdiction.
Advocates also emphasize the historical purpose of the Fourteenth Amendment. Ratified in 1868, the amendment sought to rectify injustices like those in Dred Scott v. Sandford (1857), which denied African Americans citizenship. By guaranteeing citizenship to anyone born in the U.S., the framers aimed to prevent discrimination based on ancestry or parental status.
To this day, although the Supreme Court has no precedent precisely on point for a child of illegal immigrants, courts have generally upheld this interpretation, reinforcing the idea that altering birthright citizenship would require a constitutional amendment or a dramatic reinterpretation of the Fourteenth Amendment by the Supreme Court.
The argument against birthright citizenship
Opponents of birthright citizenship extending to children of illegal immigrants challenge the prevailing interpretation of the Citizenship Clause, focusing on the phrase "subject to the jurisdiction thereof." They argue that this language excludes children of undocumented immigrants, whose parents have not lawfully entered the country and therefore do not fully submit to U.S. jurisdiction.
Advocates for Trump’s executive order claim that United States v. Wong Kim Ark did not address the modern context of illegal immigration, as Wong’s parents were lawful residents in the U.S. at the time of his birth. They argue that applying this precedent to children of undocumented immigrants misinterprets the original intent of the Fourteenth Amendment.
Historical context also plays a key role in this argument. When the amendment was drafted, its primary purpose was to ensure citizenship for freed slaves and their descendants in the aftermath of the Civil War. During the debates, Congress focused on correcting the injustices of Dred Scott and ensuring that former slaves could claim citizenship as equal members of society. Immigration – particularly unauthorized immigration – was not a significant concern at the time, as there were few restrictions on entry into the United States. This has led opponents to argue that applying the amendment to contemporary immigration challenges stretches its original intent beyond recognition.
Opponents also highlight policy concerns. They contend that extending birthright citizenship to children of illegal immigrants creates incentives for illegal immigration, often referred to as "birth tourism" or "anchor babies”; and that people here illegally should not benefit from breaking the law. Some critics view this as an unintended consequence of a constitutional provision designed for a different era.
Additionally, they point to Elk v. Wilkins (1884), in which the Supreme Court held that Native Americans born on sovereign tribal land were not automatically U.S. citizens because they were not fully subject to U.S. jurisdiction. While this case addressed tribal sovereignty, opponents argue that it underscores the importance of allegiance and legal consent to jurisdiction – criteria they believe undocumented immigrants do not meet.
A path forward or legal gridlock?
Both sides agree that the stakes are high. Some warn against undermining a long-standing constitutional guarantee that prevents discrimination by birthright, while others highlight the potential for abuse and unintended consequences in the modern immigration landscape.
Efforts to restrict birthright citizenship, whether through legislation or executive orders, have repeatedly faced legal challenges; and it will be an ongoing debate whether Trump’s order will succeed without a constitutional amendment. And given the strong precedent of Wong Kim Ark, though not precisely on point, any reinterpretation by the Supreme Court would mark a monumental shift in American jurisprudence – many say for the better of the nation and a strong border.
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