Birthright citizenship is the legal principle that provides almost everyone born on U.S. soil immediate American citizenship regardless of parents’ nationality or immigration status.
The principle of birthright citizenship in the constitution grants de facto automatic U.S. citizenship to almost any person born in America, no matter what their parents’ country of origin or their own immigration status. Section 1 of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868, guarantees the right:
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.
It is referred to as jus soli, or “right of soil,” and holds that children born in the United States to foreigners, including illegal aliens or those on temporary visas, are citizens by birth.
On the other hand, exclusions are children born of foreign diplomats or in specific U.S. territories such as American Samoa, where individuals are considered U.S. nationals but not citizens.
The United States of America also recognizes jus sanguinis, or “right of blood,” thus granting citizenship to children born abroad to at least one parent who is an American.
Enacted to override the infamous Dred Scott v. Sandford ruling, which had denied citizenship to Black Americans, the Fourteenth Amendment has since been defended by the Supreme Court in its 1898 decision United States v. Wong Kim Ark, which declared children born in America to parents not being citizens as citizens.
Is Trump able to end birthright citizenship?
President Donald Trump has consistently demanded an end to birthright citizenship and, upon assuming office in 2025, signed an executive order designed to bar from citizenship children born in the United States to illegal aliens or temporary visitors.
The order prohibits federal agencies from considering such children as citizens unless they have at least one parent who is a U.S. citizen or legal permanent resident.
The legitimacy of Trump’s executive order is hotly contested, though. Using the clear language of the Fourteenth Amendment, most federal judges have granted country-wide injunctions halting the policy from going into effect.
The Supreme Court is now deciding whether these lower courts may have been able to stop the order nationwide and whether the order can be enforced while it is being legally challenged.
Not only in the case of birthright citizenship but also in the case of federal judges’ power to stop presidential programs everywhere, the Court’s ruling could have significant implications.
Most legal analysts assume that abolishing birthright citizenship would require a constitutional amendment, which needs two-thirds approval in both the House and Senate and ratification by three-fourths of the states, thereby making it extremely unlikely to occur. Trump contends that the Fourteenth Amendment’s “subject to the jurisdiction thereof” does not cover children of illegal aliens; but the Supreme Court has consistently construed this provision broadly to cover almost everyone born on U.S. territory.
What Next?
The Supreme Court’s later ruling won’t directly address the question of whether Trump’s executive order can be implemented during ongoing court fight; rather, it will determine whether the program per se is constitutional. Not only presidential action but system-wide alterations to birthright citizenship would very likely necessitate a constitutional amendment if the Court permits partial enforcement.
Practically all persons born in American territory have constitutional right to birthright citizenship. President Trump is trying to eliminate the practice by executive order, but serious constitutional and legal impediments make their elimination exceedingly unlikely short of a constitutional amendment. The present court fight will determine the outer boundaries of presidential power and the Fourteenth Amendment’s adopted rights protection.
