Written by Brian Daza, Esq., Associate Attorney.
The Trump administration is reportedly working on an executive order that could alter the interpretation of birthright citizenship in the United States, and he said during an interview in early December he would “end it” beginning on the first day after his return to the White House.
But can he actually change U.S. birthright citizenship, which is constitutional?
There are potential legal pathways Trump could use to change birthright citizenship, but those do not come without anticipated legal challenges.
Explaining birthright citizenship
Individuals may become citizens of the United States in one of three ways: they may acquire citizenship through one or more parent(s) (ancestral citizenship), by being born in the United States (location based citizenship), or through the naturalization process.
Ancestral citizenship is recognized by almost every nation on earth and is available when an individual’s parent(s) are a citizen of the country. For example, a newborn whose parents are U.S. citizens may have the opportunity to acquire United States citizenship, even if they are born abroad. Ancestral citizenship is not location-specific and is unlikely to be impacted by the second Trump administration.
Birthright citizenship, on the other hand, is “unrestricted” in the United States, meaning it is granted to any person born within the boundaries of the country, regardless of the status of their parents. For instance, a baby born in North Carolina to undocumented parents (or parents inside the country on nonimmigrant visas) would automatically receive United States citizenship.
The concept of birthright citizenship was established via the Fourteenth Amendment, which was ratified in 1868 in response to the Civil War in order to ensure that former slaves would not be denied citizenship. The Fourteenth Amendment reads in part: “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.”
Almost exactly 30 years after its ratification, the Supreme Court held in a 6-2 decision in United States v. Wong Kim Ark that the Fourteenth Amendment also applied to all immigrants born on United States soil, no matter the status of their parents, further enshrining birthright citizenship. The only exception established in that case were if the birth parents were “employed in any diplomatic or official capacity” of their home country’s government.
More than 30 countries, mainly in the Western Hemisphere, have “unrestricted” birthright citizenship including Argentina, Brazil, Canada and Mexico. Similarly, more than 30 other countries offer some form of “restricted” birthright citizenship.
Potential actions by Trump
It is still unclear at the time of this publication in what specific way Trump will aim to scale back or end birthright citizenship, if he attempts to do so at all.
There have been some reports that President-elect Trump may look to make birthright citizenship more restrictive by adding some sort of condition through an executive order. This could mean excluding children of undocumented immigrants from having access to birthright citizenship or requiring that at least one parent be either a lawful permanent resident (green card holder) or U.S. citizen in order for their child to receive automatic citizenship. In a more extreme move, Trump could attempt to end location-based birthright citizenship in its entirety, meaning only children of U.S. citizens would automatically be entitled to U.S. citizenship.
It is important to re-iterate that at this time, with around three weeks to go before his second inauguration, there are no concrete details available about what, if any, actions Trump will take regarding birthright citizenship. If the change is effectuated through executive order, it is highly likely that the order would be challenged in court.
Can birthright citizenship be restricted or eliminated?
In theory, President-Elect Trump could attempt to alter, or end in its entirety, birthright citizenship either through a Constitutional amendment or via executive action.
Passing a Constitutional amendment would require a two-step process:
- The amendment must first be proposed by both the House of Representatives and the Senate with 2/3 of the votes in each body. Alternatively, 66 percent of the State legislatures could call for a Constitutional Convention.
- The proposed amendment would then need to be ratified by 75 percent of the U.S. states (38 of 50)
The last amendment was ratified more than 30 years ago (in 1992) and adding a new amendment to the Constitution to end birthright citizenship would be incredibly unlikely. But this route would be very effective, as it is mostly insulated from legal challenges.
Again, it is important to note that it would be unlikely for Trump to be successful in having an amendment ending or altering birthright citizenship passed through Congress, let alone ratified by three-fourths of the states. Trump could, however, sign an executive order related to birthright citizenship, which would be the more likely path.
Executive orders are forms of Presidential action that have legally binding effects through directing the functions of agencies that are part of the Executive Branch of the government. For example, related to birthright citizenship, President Trump could order the Social Security Administration (SSA) to stop printing social security cards and/or direct the Department of State (DOS) not to issue passports for children who the order has deemed ineligible for birthright citizenship.
Such an executive order would effectively leave the individuals without U.S. citizenship and would almost certainly face legal challenges as soon as it is signed.
Potential legal challenges
Any executive order issued by Trump related to birthright citizenship will very likely be challenged in court in short order.
Legal challenges will almost certainly begin on the grounds that the action violates the interpretation of the Fourteenth Amendment established by Wong Kim Ark. An executive order eliminating birthright citizenship would seemingly directly conflict with existing interpretations of the Fourteenth Amendment.
These lawsuits challenging the executive order will most likely seek a temporary injunction from a federal judge, which if issued, would block any actions instructed by the executive order from taking effect until the matter is resolved. The case would then work its way through the federal court system and would almost certainly end up being heard by the Supreme Court, which would issue a final ruling on the matter.
This process could take months or years to reach a final resolution, and it’s possible no action results from a potential executive order during that time period.
Previous attempt to end birthright citizenship
President-Elect Trump had previously stated during his first term he would also attempt to end birthright citizenship. He said during a recent interview with NBC News that at that time he “was going to do it (through executive action) but then (he) had to fix COVID first.” The Department of State did publish a rule during Trump’s first term which targeted “birth tourism.”
Additionally, Senator Lindsey Graham (R-S.C.) introduced in September the Birthright Citizenship Act of 2024, which if passed, would end birthright citizenship for children of undocumented immigrants. That bill has failed to gain any traction in the Senate.
Graham also said on X earlier this month he was “working on a constitutional amendment to end the practice,” but did not provide any further details or information.
Other information to know
Individuals who could be affected by a potential birthright citizenship executive order from Trump should monitor the news closely and consider contacting experienced immigration counsel with any questions. Until legal challenges to eliminate birthright citizenship are resolved, there could be consequences including hardships, the inability for some to return to their country of origin, and more depending on the specifics of the order.
As for long-term impact, foreign nationals would need to ensure their dependents are included in their visa applications as dependents moving forward, if Trump is successful in restricting or ending birthright citizenship.
Employers may also receive more inquiries from foreign national employees to begin the green card process as soon as possible, if birthright citizenship changes in any way. Foreign national employees will want to begin the green card process as soon as possible if their children, born in the U.S., are no longer entitled to automatic U.S. citizenship. These employees may understandably have concerns about their children “aging out” of the system as dependents on their green card applications.
Including their children as dependents on their green card applications would subsequently be the only path towards legal permanent residence status or U.S. citizenship (other than through their children’s own, separate sponsorship) if restriction or elimination of automatic U.S. citizenship impacts their children.
While President-elect Trump has expressed a desire to end birthright citizenship, time will tell whether these changes will take effect and how long it may take for legal challenges to be resolved. In the meantime, it will be important for immigrants to the United States, and their employers, to stay up-to-date on the latest developments.