Born in the USA: Battles Over the End of Birthright Citizenship

President Trump’s executive order entitled “Protecting the Meaning and Value of American Citizenship” effectively asserts that the Constitution does not guarantee birthright citizenship to those whose parents are not U.S. citizens or only have temporary legal status [1]. In doing this, Trump is interpreting the meaning of the Fourteenth Amendment, which grants birthright citizenship. Furthermore, he is altering longstanding precedent. While this raises questions about the future of the separation of powers in government and the powers of the president, the executive order is currently frozen by a district court in Maryland. The uncertainty surrounding Trump’s interpretation of the Constitution and the legality of this order has caused many to favor a widespread preliminary injunction, aiming to achieve uniformity rather than limiting the injunction to only the plaintiffs involved in the suit [2]. Despite the history of the United States denying citizenship to individuals, the Fourteenth Amendment has consistently been upheld as a protection for the citizenship of any person born on American soil. 

        In the 1898 case United States v. Wong Kim Ark, the Supreme Court addressed the Citizenship Clause decisively. Wong Kim Ark was born in San Francisco, California, yet he was denied entry to the United States after returning from a trip to China to visit his parents. This was done on the grounds that he was not a U.S. citizen. In a 6-2 decision, the Court upheld Ark’s citizenship because he was born in the United States and his parents were not diplomats under the Emperor of China. Further, the Court definitively interprets a key phrase of the Citizenship Clause: “and subject to the jurisdiction thereof.” The majority opinion asserts that this phrase does not exclude any classes from the guarantee of birthright citizenship [3]. This decision has set the precedent for issues related to birthright citizenship, particularly regarding children of immigrants to the United States, affirming their inclusion under U.S. jurisdiction.

President Trump also addresses this in his executive order, claiming that “the Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof’” [4]. He bases his attack on birthright citizenship on this phrase, claiming that those who are born in the United States but whose parents are not citizens or who only have temporary legal status are not subject to the jurisdiction of the United States. Thus, they cannot become citizens solely by virtue of being born on U.S. soil [5]. This interpretation is inconsistent with how the Supreme Court has previously understood this clause, specifically as described in United States v. Wong Kim Ark. Further, it raises questions about the power of the president to interpret the meaning of an amendment like this. Despite Trump’s strong political stance against illegal immigration and strengthening the southern border, many people question his authority to unilaterally end birthright citizenship. If this order does pass through, it could set a precedent for a broad exercise of executive power in the law. Despite the order being blocked now, it will likely go to the Supreme Court for judgment.

The Supreme Court has not interpreted the meaning of “subject to the jurisdiction thereof” since the Wong Kim Ark case in 1898. If this executive order reaches the Court, there is also a question of whether party loyalty will supersede loyalty to the Constitution. Three of the Court’s nine justices were appointed by Trump, and there is a 6-3 conservative majority that often votes along party lines. Many judges at the federal level, including the Maryland judge who blocked the executive order nationally on February 5, believe that Trump’s rescission of birthright citizenship is blatantly unconstitutional and violates all of the precedent surrounding the Fourteenth Amendment [6]. Whether or not Trump’s Supreme Court appointees will choose to disregard the precedent on this topic and reevaluate the meaning of birthright citizenship is uncertain, though previous issues suggest that they will rule in Trump’s favor if the case is brought to them. For example, the 2022 case Dobbs v. Jackson also abandoned half a century of precedent, overturning both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), on claims that the Constitution does not guarantee the right to abortion [7]. If the Court is willing to overturn precedent when faced with deeply political issues, birthright citizenship could be next on the chopping block. In an era where presidential power seeks to expand, this conservative loyalty on the Supreme Court could enable exceptional increases in authority for the executive. 

Despite pleas from the government, this executive order is still on hold from the nationwide injunction, and its future is uncertain. If it passes, it would not only represent a deep shift of over a century of precedent regarding the Fourteenth Amendment, but it could also signal an expansion of executive power. It could bring about an era where the president has the authority to interpret the Constitution. The current Supreme Court has shown a willingness to overturn precedent on highly politicized issues, and determining the constitutionality of birthright citizenship can also shape the Court’s image in the public eye as more of a partisan institution than an independent system. The Fourteenth Amendment has been consistently interpreted to guarantee citizenship to all people born on American soil, and this executive order has the power to redefine what American citizenship really means by dictating who is entitled to it.

Sources:

1. Exec. Order No. 14160 (2025). 
2. Mallory Culhane, Trump Birthright Order Is Left Frozen by Appeals Court (Feb. 28, 2025), https://news.bloomberglaw.com/litigation/trump-loses-attempt-to-stop-courts-pause-on-birthright-order. 
3. United States v. Wong Kim Ark 169 U.S. 649 (1898). 
4. Supra 1. 
5. Id. 
6. Supra 2.
7. Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022).