Birthright citizenship, rooted in the 14th Amendment to the U.S. Constitution, grants citizenship to anyone born on U.S. soil. The Citizenship Clause of the amendment, adopted in 1868, states: “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 Immigration and Nationality Act of 1952 reaffirmed this definition.
As of January 2022, the U.S. Department of Homeland Security estimated 11 million undocumented immigrants in the country, with analysts now suggesting the figure may range between 13 to 14 million. Children born in the U.S. to these immigrants automatically receive citizenship. Trump has criticized practices like “birth tourism,” where foreign women travel to the U.S. specifically to give birth and secure citizenship for their children.
There is, however, an exception: Children born to foreign diplomatic officers with immunity are not considered U.S. citizens because they are not subject to U.S. jurisdiction.
WHAT HAS THE SUPREME COURT SAID?
The Supreme Court has yet to decide whether the 14th Amendment applies to children born to undocumented immigrants.
The key case on birthright citizenship stems from United States v. Wong Kim Ark (1898), where the Court ruled that a man born in San Francisco to lawful Chinese immigrants was a U.S. citizen. At the time, immigration from China faced severe restrictions, and Wong had been denied re-entry to the U.S. after visiting China.
In another case from 1884, the Court ruled that John Elk, born into a Native American tribe, was not a U.S. citizen because he was not subject to U.S. jurisdiction. Congress later granted Native Americans citizenship in 1924.
WHAT DO OPPONENTS OF BIRTHRIGHT CITIZENSHIP SAY?
Some critics argue that the 14th Amendment’s language—requiring individuals to be “subject to the jurisdiction” of the United States—excludes children of undocumented immigrants. They claim the clause was deliberately included to limit automatic citizenship.
Republican senators Lindsey Graham and Tom Cotton have proposed bills asserting that children born to undocumented parents are not under U.S. jurisdiction and thus ineligible for citizenship. However, most legal scholars disagree, emphasizing that unlike diplomats, undocumented individuals are subject to U.S. laws.
CAN TRUMP RESTRICT BIRTHRIGHT CITIZENSHIP VIA EXECUTIVE ORDER?
While the Constitution grants Congress authority over citizenship, Trump has previously suggested issuing an executive order to redefine birthright citizenship. For example, he might require at least one parent to be a U.S. citizen, permanent resident, or military member—similar to language proposed in Graham’s bill.
If such an order were issued, Trump could instruct federal agencies to withhold passports, benefits, or documents from individuals who fail to meet the new criteria. Legal experts anticipate immediate court challenges, likely leading to an injunction. This could ultimately push the matter to the Supreme Court, forcing a definitive ruling on birthright citizenship.
Should the courts affirm that the Constitution protects birthright citizenship, the only way to alter it would be through a constitutional amendment. Such an amendment would require approval by two-thirds of Congress and ratification by three-quarters of state legislatures, a process that could take years. Notably, the Constitution has not been amended since 1992.
