On his first day in office, President Trump signed an executive order aiming to restrict birthright citizenship for certain children, directly challenging the 14th Amendment’s widely accepted interpretation. The order seeks to exclude children born in the U.S. to undocumented or temporary immigrants, despite the constitutional guarantee that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.”
The key legal debate centers on the phrase “subject to the jurisdiction” of the United States. Most legal scholars argue that it applies broadly to nearly all children born on American soil, including those of undocumented immigrants. The American Bar Association condemned the order as an attack on a “constitutionally protected” right, and federal judges in four states have blocked its enforcement, with one ruling that it “conflicts with the plain language of the 14th Amendment.”
Legal Precedents and Unanswered Questions
While the Supreme Court’s 1898 ruling in United States v. Wong Kim Ark established that children of lawful permanent residents are U.S. citizens, it never explicitly addressed the status of children born to those in the country illegally. This unresolved question could now come before the Court.
The 14th Amendment was originally intended to guarantee citizenship to formerly enslaved people, reinforcing the principle that allegiance to the nation grants protection and rights. The Lincoln administration had already recognized free African Americans as citizens, based on the idea that individuals who pledge allegiance to the country should receive its legal protections.
Historically, the phrase “subject to the jurisdiction” has excluded children of diplomats, Native Americans under tribal authority (until the Indian Citizenship Act of 1924), and members of invading armies. The legal rationale was that these groups had not entered into the American social compact. Trump’s order raises the question of whether undocumented immigrants—who entered the country in violation of its laws—can be considered to have given “allegiance” in a way that qualifies their children for citizenship.
Implications for the Supreme Court
Past legal interpretations suggest that mere physical presence in the U.S. has been enough to grant citizenship. However, Trump’s order argues that undocumented immigrants, having broken the law upon entry, have not pledged the kind of allegiance that the 14th Amendment originally required.
The Supreme Court has hinted in past cases that the amendment’s jurisdictional clause might apply to children of undocumented immigrants, but the issue has never been fully litigated. If the justices take up the case, they will have to weigh historical interpretations of jurisdiction, the principles of allegiance and protection, and whether Trump’s order aligns with constitutional intent.
The ultimate decision could reshape America’s approach to birthright citizenship and set a significant legal precedent for future immigration policy.