The U.S. Supreme Court is expected to weigh in this week on President Donald Trump’s attempt to end birthright citizenship by executive order, a move which would upend more than a century of legal precedent and a national tradition that have said babies born on American soil are automatically American citizens.
The ruling, one of the most highly anticipated of the year, is a major test of Trump’s unprecedented assertion of presidential power in his second term, with major stakes for millions of children and their families.
What Is Birthright Citizenship?
Birthright citizenship is the idea that a child automatically becomes a citizen of the country in which they are born, regardless of the immigration status of their parents. It reflects the principle of jus soli, or right of the soil, extending citizenship purely on the basis of geographic location. By contrast, many countries extend citizenship under the principle of jus sanguinis, or right of blood, which is determined by the nationality of a child’s parents regardless of the location of birth.
With few exceptions, all babies born on U.S. soil become U.S. citizens. For the approximately 3.6 million children born in American hospitals every year, the birth certificate alone has been the key to obtaining Social Security numbers, passports, and early life benefits. Into adulthood, the birth certificate has been universally recognized as proof of citizenship for such things as voter registration, employment, home loans, and military service.
The Constitutional Argument
The 14th Amendment, which was ratified in 1868 to address the legal status of former slaves and their descendants, says plainly that all “persons born or naturalized in the U.S. and subject to the jurisdiction thereof” are citizens. Congress later codified the same language in federal citizenship law enacted in 1940.
Courts and the government have repeatedly interpreted the 14th Amendment to unambiguously confer citizenship on all children born in the U.S., including babies of unauthorized noncitizens and temporary residents, such as asylum seekers, international students, tourists, and seasonal workers.
The Supreme Court previously rejected constitutional arguments similar to the ones Trump is making. In the landmark 1898 Wong Kim Ark v. U.S. decision, Justice Horace Gray wrote: “The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
Trump’s Executive Order
On the first day of his second term, President Trump signed an executive order purporting to end birthright citizenship by redefining the meaning of the 14th Amendment. He claims that children born to noncitizen parents who are either unlawfully in the country or who possess temporary legal status, such as tourists or foreign students, are not “subject to the jurisdiction” of the U.S. and therefore ineligible.
The order would restrict citizenship to babies of current American citizens or other lawful permanent residents who have established “domicile” in the U.S. The president argues the current citizenship policy is a “scam” that has allowed wealthy adversaries to take advantage of American benefits and “ripped off” taxpayers by providing financial assistance to children of undocumented people.
The Stakes
Immigrant advocates and civil liberties groups have warned that ending birthright citizenship would harm hundreds of thousands of children born every year to noncitizen parents and create a bureaucratic nightmare for older Americans who would no longer be able to prove citizenship simply with a birth certificate.
An estimated 255,000 children born every year to noncitizen parents would have lost legal status under the order, according to the Migration Policy Institute. Some may have faced difficulty establishing citizenship in any country, effectively being born as “stateless.”
The Trump administration says the executive order is not retroactive and would only apply to babies born after it takes effect. However, some legal experts fear that any legal reasoning upholding Trump’s reinterpretation of the 14th Amendment could potentially be used by a future administration to pursue efforts to strip citizenship from some people if it wanted to.
Justice Sonia Sotomayor noted during oral arguments in April: “The government could move to unnaturalize people who were born here of illegal residents.”
What Happens Next
The Trump administration says federal agencies have prepared guidelines for implementing a new process of conferring citizenship to children born after the order takes effect. Federal agencies would evaluate the legal status of a child’s parents first before making a determination of eligibility for citizenship and, in turn, for a Social Security number, passport, and other benefits.
A U.S. birth certificate alone would no longer be sufficient proof of citizenship for any child going forward, including those born to American parents. Immigrant advocates have warned of a “bureaucratic nightmare” for all parents of newborns, with vulnerable low-income children being particularly at risk of not getting necessary health care or nutrition assistance.
Some children who would not qualify for U.S. citizenship may be rendered “stateless” since several countries, particularly in Southeast Asia, do not confer citizenship automatically to children born to their nationals abroad. That lack of legal status might make some newborns immediately eligible for deportation.
The Bottom Line
The U.S. Supreme Court is expected to rule this week on President Trump’s executive order seeking to end birthright citizenship. The move would overturn more than a century of legal precedent that has guaranteed citizenship to babies born on American soil. Trump argues that children born to noncitizen parents are not “subject to the jurisdiction” of the U.S. under the 14th Amendment. Immigrant advocates warn the order could render thousands of children stateless and create a bureaucratic nightmare for families. The ruling is one of the most highly anticipated decisions of the year.
