President Trump signed executive orders at the White House on Monday, one of which moves to revoke birthright citizenship for children born in the U.S. to parents with unlawful or temporary status.
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Jim Watson/Pool/AFP via Getty Images
President Donald Trump is trying to end birthright citizenship, the legal principle enshrined in the Constitution that automatically makes anyone born within the U.S. or its territories a citizen.
It’s a move that Trump first proposed during his first term and one that most legal experts agree he cannot make unilaterally.
Indeed, within days of signing his executive order on Monday, Trump’s administration was hit with at least four separate lawsuits from coalitions opposed to it, including nearly two dozen state attorneys general, a group of pregnant mothers, and immigrants’ rights groups, including the American Civil Liberties Union (ACLU).
“Birthright citizenship is guaranteed in our Constitution and is absolutely central to what America stands for,” said lead attorney Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project. “Denying citizenship to babies born on U.S. soil is illegal, profoundly cruel, and contrary to our values as a country.”
Asked about legal challenges to the birthright citizenship order — which were widely expected — Trump acknowledged as he signed it that it could be challenged but said, “We think we have good grounds” to move ahead.
“We’re the only country in the world that does this” with birthright citizenship, he said.
That’s not true: Dozens of countries, including Canada, Mexico and many South American nations, offer birthright citizenship.
Here’s what to know about the principle, and what it would mean for the U.S. to end it — or at least try.
What does the Constitution say?
Section 1 of the 14th Amendment of the Constitution says that “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.”
The amendment, which was ratified in 1868, sought to extend citizenship to formerly enslaved people after the Civil War.
“When birthright citizenship came about in the 14th Amendment, there weren’t unauthorized immigrants in the United States like there are today,” Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, told NPR in December.
But it’s been applied to immigration for well over a century, dating back to the landmark 1898 Supreme Court ruling in United States v. Wong Kim Ark.
How has the clause been interpreted?
“For over a century, since a young Chinese American cook from San Francisco named Wong Kim Ark won his case at the Supreme Court, birthright citizenship for all — including babies born to immigrants — has been a cornerstone of U.S. democracy,” said Aarti Kohli, executive director of the Asian Law Caucus.
Wong, who was born in San Francisco to Chinese parents, was barred from entering the U.S. — under the Chinese Exclusion Act — while returning from an overseas trip in 1890.
In a 6-2 decision, the court ruled that because Wong was born in the U.S. and his parents were not “employed in any diplomatic or official capacity under the Emperor of China,” the 14th Amendment makes him a U.S. citizen.
A 1904 portrait of Wong Kim Ark, who the Supreme Court ruled was a U.S. citizen in a landmark birthright citizenship case.
National Archives/Interim Archives/Getty Images)
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National Archives/Interim Archives/Getty Images)
“The case clarified that anyone born in the United States was a citizen under the Court’s interpretation of the Fourteenth Amendment, regardless of the parent’s immigration status, and the case has been established precedent for more than 125 years,” according to the American Immigration Council.
That decision established the parameters of jus soli, or birthplace-based citizenship (as opposed to the ancestry-based form of birthright citizenship, known as jus sanguinis).
And the Supreme Court has reaffirmed it in the years since — including in the 1982 case Plyler v. Doe, which held that states cannot deny students a free public education based on their immigration status.
What exactly does Trump want to change?
Trump’s executive order asserts that children born to parents without legal status in the U.S. are not subject to U.S. jurisdiction and are, therefore, not entitled to U.S. citizenship.
The order also extends to children born to parents with temporary legal status in the U.S., such as foreign students or tourists.
Trump, who campaigned on cracking down on immigration, is not the first politician to call for revoking birthright citizenship.
“Starting in 1991, Congress has been introducing bills to end birthright citizenship,” Gelatt said. “None of those have passed into law.”
A draft of the 14th Amendment to the United States Constitution, outlining the rights and privileges of American citizenship. It was ratified in 1868.
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Hulton Archive/Getty Images/Hulton Archive/Getty Images
Can birthright citizenship be revoked?
“Revoking this right would require amending the U.S. Constitution, or for the U.S. Supreme Court to diverge from centuries of established precedent and legal principles that date back to before the founding of this country,” according to the American Immigration Council.
Congress could pass a new constitutional amendment, but it would require a two-thirds vote in both the House and Senate and ratification by three-quarters of states.
As NPR has reported, a small but vocal group of conservative legal scholars has argued for years that the 14th Amendment has long been misread and was not originally intended to give citizenship to the children of visitors. (During his first administration, Trump took steps aimed at cracking down on what he called “birth tourism.”)
“One problem, they believe, is that courts have misconstrued what the writers of the 14th Amendment intended with the phrase ‘subject to the jurisdiction thereof’ and that the amendment’s framers understood that the children of illegal aliens, like their parents, owed their loyalty to a nation that wasn’t the United States,” the National Constitution Center explains.
Some also believe the Wong Ark Kim decision was limited because his parents were in the U.S. legally at the time of his birth.
But most legal scholars do not think that birthright citizenship can be revoked at all — let alone by executive order.
“It will be litigated immediately and its prospects of surviving those court fights are slim, even before a Supreme Court stacked with conservative justices and Trump appointees,” writes Thomas Wolf, director of democracy initiatives at the Brennan Center for Justice.
How many people would be affected?
The Pew Research Center estimates that 1.3 million U.S.-born adults are children of immigrants without legal status, according to 2022 data.
The number of babies born in the U.S. to immigrants who entered the country illegally has declined in recent years: It was about 250,000 in 2016, a significant drop from a peak of roughly 390,000 in 2007, according to Pew.
But, as NPR has reported, immigrant rights advocates worry Trump’s order could affect multiple generations of children.
“As children born to unauthorized immigrants were themselves treated as unauthorized immigrants, that would grow the unauthorized immigrant population in the country,” said Gelatt, of the Migration Policy Institute. “And we could see even grandchildren of today’s unauthorized immigrants being born without U.S. citizenship.”
Data from the Migration Policy Institute suggests that by 2050, there would be 4.7 million unauthorized immigrants born in the U.S. — 1 million of whom would have two U.S.-born parents.
“What we see in countries where there is not birthright citizenship is that, you know, there are multigenerational groups of people who don’t have full membership,” Gelatt said. “They don’t have a full say in the governments that rule over them. And in some cases, people can also end up being stateless.”
Beyond the individual impact, Gelatt says the end of birthright citizenship could have repercussions for American society as a whole.
“We know that when people have legal status and the right to work legally in the United States and full membership in the country, that helps them to integrate, to thrive and to contribute more to our country, to our economy and our democracy.”
