The Battle Over Birthright Citizenship
On January 20, 2025, Donald Trump issued Executive Order No. 14,160, “Protecting the Meaning and Value of American Citizenship”. This order declared that individuals born in the United States are not United States citizens at birth if their parents lacked sufficient legal status.
This executive order ordered federal district agencies not to recognize citizenship claims for children born after February 20, 2025, if their mother was unlawfully in the United States and the father was neither a United States citizen nor a lawful permanent resident. Another scenario in which citizenship would not be recognized is when the mother’s presence in the United States was lawful but temporary, and the father was neither a United States citizen nor a lawful permanent resident. This order was issued based on the proposed basis that the Fourth Amendment’s Citizenship Clause does not confer birthright citizenship to children because they are not “subject to the jurisdiction” of the United States.
On April 1, 2026, the Supreme Court ruled that the Constitution guarantees automatic citizenship to effectively all children born in the United States. With their ruling, the Supreme Court struck down President Donald Trump’s executive order seeking to end birthright citizenship. In a decision written by Chief Justice John Roberts, the justices sided with the challengers and the lower courts, ruling that Trump’s order directly conflicts with the 14th Amendment. The 14th Amendment bestows citizenship to anyone born in the United States, “and subject to the jurisdiction thereof.”
The majority’s opinion emphasized that children of unlawful parents, born in the United States, satisfy both elements of the Citizenship Clause under the Constitution.
In a dissenting opinion, Justice Samuel Alito called the ruling a “serious mistake”. Justice Alito claimed that close analysis of the Fourteenth Amendment reveals the intent of its adoption was only to confer citizenship to children who, at birth, “owe allegiance solely to this country”.
The Supreme Court upheld the lower court’s decision partially because of early English law. Children who were born in Britain automatically became British subjects. This approach to birthright citizenship was adopted with little pushback after the American Revolution.
The Supreme Court reaffirmed this principle in 1898 in the case of Wong Kim Ark. When he returned to the United States from a visit to China, immigration officers wouldn’t let him enter the country on the grounds that he was not a US citizen. The court held that the Citizenship Clause incorporated within the 14th Amendment granted citizenship to all children born in the United States.
Justice Kavanaugh noted Congress may amend or enact new legislation establishing exceptions to birthright citizenship for children born to foreign citizens within the country. However, with the current legislation, actions such as President Trump’s executive order will continue to be constitutionally challenged.