Trump’s Executive Order to Ban Birthright Citizenship is Left in the Dark by the Courts

During President Donald Trump’s first day back in office in January 2025, the President swiftly signed an executive order on January 25, 2025, to effectively end birthright citizenship for certain children born in the United States if their parents are not lawful U.S. citizens. The United States Court of Appeals for the Fourth Circuit No. 25-1153 (8:25-cv-00201-DLB) denied President Trump’s motion to stay the lower court’s nationwide preliminary injunction after United States District Judge Deborah Boardman in Maryland blocked the nationwide birthright citizenship order on February 5th, 2025. Judge Boardman found that it violated the U.S. Constitution 14th Amendment, U.S. CONST S1.1.2 [1]. The Amendment states 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” [2]. However, Trump’s administration questions if the Citizenship Clause Doctrine allows illegal immigrants in the United States to be “subject to the jurisdiction thereof,” meaning if the immigrants are already illegal inside the United States, does it mean that the children they give birth to are illegal too? The 14th Amendment doesn’t elaborate on this issue, which means the United States Supreme Court would have to take this case and come to a decision, most likely in Spring 2025. While Trump’s administration has a legitimate legal argument claiming that children born in the United States by illegal immigrants are illegal too, the executive order is blatantly unconstitutional. This issue of birthright citizenship all starts with the Enslaved in the United States during the Civil War, the Chinese Exclusion Act, 8 U.S.C. 7 (1882), and ends with the United States v. Wong Kim Ark, 169 U.S. 649 (1898). 

The 14th Amendment of the United States was passed to grant equal rights to everyone and clarify the status of babies born to formerly enslaved people as legal. Then, the Chinese Exclusion Act was passed in Congress, imposing a 10-year ban on Chinese laborers immigrating to the United States and forcing the courts to refuse to grant Chinese citizens with U.S. citizenship [3]. To provide more hardship for Chinese people wanting U.S. citizenship, Congress passed the Geary Act (1892), which provided more restrictions for Chinese citizens to register and obtain a certificate of residence [4]. It was difficult to receive a certificate of residence for Chinese citizens back then, which led to many Chinese people being deported back to their home country. This situation happened several years after the passing of the 14th Amendment in 1868, but the case of United States v. Wong Kim Ark provides more clarity for classifying birthright citizens. Ark was born in 1873 in San Francisco, California, and visited his parents in China at age 21, but when he returned to the United States, he was denied entry [5]. He took the case to the Supreme Court of the United States, and they ruled that since Ark was born in the United States with his parents having no affiliation with the Emperor of China, the Citizenship Clause of the Fourteenth Amendment automatically makes him a U.S. citizen. This case essentially clarified that all people born in the United States are automatically U.S citizens. 

Senior U.S. District Judge John C. Coughenour was the first judge to temporarily block President  Trump's birthright citizenship executive order in the case of the State of Washington, et al, v. Donald Trump, et al, Case. No. C25-0127-ICC [6]. Judge Coughenour called the executive order “blatantly unconstitutional.” States like Washington, Arizona, Illinois, and Oregon wanted to block the executive order from going into effect, and many democratic attorneys general and immigration rights organizations filed lawsuits challenging the executive order. The only exceptions to the Citizenship Clause of the Fourteenth Amendment are if the person is a diplomatic representative of a foreign state, children born of alien enemies during war, or children of members of Indian tribes subject to tribal laws [2]. There are no exceptions in the 14th Amendment for illegal immigrants giving birth to children on U.S. soil, but it should be up to the United States Supreme Court to decide whether or not the 14th Amendment allows children born to illegal immigrants to be U.S. citizens.  

With a new Trump administration with full control of the House and Senate of the Republican majority, it is going to be interesting to see what kind of executive orders or actions the Trump administration will take to test the court system. The executive order to end birthright citizenship wasn’t the only order that has been deemed controversial. The Trump administration tried to freeze all foreign aid and fire several thousand government workers. The majority of conservative justices in the United States Supreme Court might take this case up and come up with a decision by the start of Summer 2025. The ruling of whether or not banning birthright citizenship is legal will spark outrage from both parties, and it will be interesting in this crucial year how the Supreme Court of the United States interprets the 14th Amendment of the Citizenship Clause. 

Sources:

1. Mallory, Colhane, Trump Birthright Order Is Left Frozen by Appeals Court (1), (February 28, 2025), https://news.bloomberglaw.com/litigation/trump-loses-attempt-to-stop-courts-pause-on-birthright-order
2. U.S. Const. amend. XIV, § 2
3. Chinese Exclusion Act, 22 Stat. 58 (1882)
4. Geary Act, 27 Stat. 25 (1892)
5. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
6. State of Washington, et al, v. Donald Trump, et al, Case. No. C25-0127-ICC (2025)