DOES THE PRESIDENT HAVE CONSTITUTIONAL AUTHORITY TO RECONSTRUCT THE PRINCIPLE OF BIRTHRIGHT CITIZENSHIP?

Author: Jonathan Ryzowicz, Associate Editor

Introduction

In January 2025, President Donald Trump retook the Oval Office as the 47th President of the United States.[i] Among his promises was strong policy implementation on immigration; notably, he would end birthright citizenship for the children of undocumented immigrants by executive order (“EO”).[ii] Birthright citizenship, as established by the Fourteenth Amendment’s Citizenship Clause, grants U.S. citizenship to those born on American soil, with limited exceptions.[iii] On his first day in office, President Trump immediately issued an EO addressing birthright citizenship titled “Protecting the Meaning and Value of American Citizenship.”[iv] The EO primarily attempts to narrow the application of the Citizenship Clause into a much stricter application.[v]

Currently, the Clause is broadly understood to grant citizenship to anyone born in the United States, except for the children of foreign diplomats, who are exempt by diplomatic status.[vi] However, the EO imposes that:

[T]he privilege of the United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.[vii]

This EO sparked immediate legal challenges from 22 states joined by many other civil rights organizations.[viii] As of January 24, 2025, a district judge in Seattle has struck down the EO, putting the issue on a crash course to the Supreme Court.[ix]

The Supreme Court will ultimately have to decide whether the EO is constitutional.[x] While the president has the authority to enforce the law, they can be counterbalanced and checked if orders are deemed unconstitutional.[xi] The Trump administration maintains that this is not reconstructing the principle of birthright citizenship, but rather correctly interpreting and applying the Fourteenth Amendment.[xii] In opposition, others say that he is trying to reinvent the Fourteenth Amendment.[xiii] 

While many cautiously await to see the outcome of the EO’s constitutionality, the question still looms: Does the president have the constitutional authority to reconstruct the principle of birthright citizenship?[xiv]

14th Amendment and Judicial Precedent

Congress ratified the Fourteenth Amendment in July 1868 to respond to the Civil War.[xv] It overruled the Supreme Court’s decision in Dred Scott v. Sandford, which held that formerly enslaved individuals were not entitled to citizenship and were not protected by the Constitution.[xvi] The Citizenship Clause, spotlighted in Section I of the Fourteenth Amendment, guarantees that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.”[xvii]

As of 2022, the U.S. population includes over 1.2 million U.S. children born to unauthorized immigrant parents.[xviii] Before Trump’s EO, the fate of these undocumented children born in the U.S. seemed certain based on an old Supreme Court precedent being thrust back into center stage.[xix]  

How the Supreme Court has Viewed the Citizenship Clause

In 1898, the Supreme Court decided United States v. Wong Kim Ark, upholding birthright citizenship for all persons born in the United States.[xx] Wong Kim Ark was born in 1873 in San Francisco, California to Chinese parents.[xxi] After his parents returned to China in 1890, he went to visit them and successfully returned to the United States because of his natural-born status.[xxii] However, during a visit to his family in 1895, Congress passed the Chinese Exclusion Act, banning Chinese people from entering the country.[xxiii] Upon Wong’s return to the States, he was prohibited from entering the country.[xxiv] Wong challenged his denial into the country in court, arguing that he was a United States citizen because of his birth in the States.[xxv] In a 6-2 decision, the Supreme Court determined that birthright citizenship was a constitutional right that Congress could not fracture with the Chinese Exclusion Act.[xxvi] As a result, Wong Kim Ark was granted American citizenship, recognizing his native-born status.[xxvii]

This precedent has stood firm for over a century, providing a precise and reliable interpretation of the Fourteenth Amendment.[xxviii] President Trump’s EO to reconstruct birthright citizenship, however, would require overturning Wong Kim Ark, a seemingly monumental constitutional change.[xxix] 

What President Trump Will Have to Achieve to Undo Birthright Citizenship

Due to the challenges to President Trump’s EO, birthright citizenship is evidently on a crash course to end up in the Supreme Court’s hands.[xxx] To be successful, the Supreme Court would have to revisit Wong Kim Ark and many other related precedents.[xxxi]

The other way President Trump could narrow the scope of birthright citizenship is to petition Congress to change the policy via a constitutional amendment proposal.[xxxii] However, this would also likely fail, as it would require a two-thirds approval in the House of Representatives and the Senate, followed by a ratification by three-fourths of the States.[xxxiii] Only 27 of 11,000 proposed amendments have been ratified. [xxxiv] So, while possible, the political hurdles make it improbable.

Conclusion

Though President Trump’s executive order to reconstruct birthright citizenship status is a bold and drastic policy shift from previous administrations, the legal and constitutional obstacles make it unlikely to succeed without substantial changes to the longstanding Supreme Court precedent.[xxxv] The Citizenship Clause is firmly embedded in the Constitution and has been established by over a century of case law.[xxxvi] As President Trump continues to roll out his immigration policy, it is clear that his attempt to reconstruct birthright citizenship faces immense scrutiny and many legal challenges.[xxxvii] Nevertheless, the interpretation of the Fourteenth Amendment will likely remain a focal point in the continuing controversy surrounding President Trump’s immigration policy in the United States.[xxxviii]

[i] President Donald J. Trump, Donald J. Trump Presidential Library, NAT’L ARCHIVES, https://www.trumplibrary.gov/trumps/president-donald-j-trump.

[ii] Tarini Parti & Michelle Hackman, Trump Prepares for Legal Fight Over His “Birthright Citizenship Curbs, THE WALL ST. J. (Dec. 8, 2024 9:16PM), https://www.wsj.com/politics/policy/trump-birthright-citizenship-executive-order-battle-0900a291.

[iii] See U.S. Const. amend. XIV, §1.

[iv] Protecting the Meaning and Value of American Citizenship, WHITE HOUSE (Jan. 20, 2025), https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/.

[v] See id.

[vi] See U.S. Const. amend. XIV §1.

[vii] U.S. Const. amend. XIV §1.

[viii] Mike Catalini, 22 states sue to stop Trump’s order blocking birthright citizenship, APNEWS (Jan. 21, 2025, 4:02 PM EST), https://apnews.com/article/birthright-citizenship-trump-executive-order-immigrants-fc7dd75ba1fb0a10f56b2a85b92dbe53.

[ix] Mike Catalini & Gene Johnson, A federal judge temporarily blocks Trump’s executive order redefining birthright citizenship, APNEWS (Jan. 23, 2025, 6:47 PM EST), https://apnews.com/article/birthright-citizenship-donald-trump-lawsuit-immigration-9ac27b234c854a68a9b9f8c0d6cd8a1c.

[x] Judicial Review of Executive Orders, FED. JUDICIAL CTR, https://www.fjc.gov/history/administration/judicial-review-executive-orders (last visited Mar. 11, 2025).

[xi] Id.

[xii] America First Legal Files Amicus Brief Supporting President Trump’s Executive Order on Birthright Citizenship for House Judiciary Committee Chairman Jim Jordan and 17 Members of Congress, AM. FIRST LEGAL (Feb. 4, 2025), https://aflegal.org/america-first-legal-files-amicus-brief-supporting-president-trumps-executive-order-on-birthright-citizenship-for-house-judiciary-committee-chairman-jim-jordan-and-17-members-of-congress/.

[xiii] See Brief of Amici Curiae Members of Congress in Support of Defendants, State of Washington, et al., v. Donald J. Trump, et al., No. 2:25-cv-00127-JCC, https://media.aflegal.org/wp-content/uploads/2025/02/04124855/AFL-Amicus-Brief-in-Washington-v.-Trump.pdf.  

[xiv] Rachel Reed, Can birthright citizenship be changed?, HARVARD LAW TODAY (Jan. 24, 2025), https://hls.harvard.edu/today/can-birthright-citizenship-be-changed/.

[xv] See Dred Scott v. Sandford 60 U.S. 393 (1857).

[xvi] See Landmark Legislation: The Fourteenth Amendment, UNITED STATES SENATE, https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm, see also Dred Scott v. Sandford 60 U.S. 393 (1857).

[xvii] See U.S. Const. amend. XIV, §1.

[xviii] Trump has vowed to end birthright citizenship. Can he do it? BBC (Jan. 23, 2025), https://www.bbc.com/news/articles/c7vdnlmgyndo.

[xix] See Mike Catalini, supra note ix.

[xx] See United States v. Wong Kim Ark, 169 U.S. 649 (1898).

[xxi] Id. at 652.

[xxii] Id.

[xxiii] Id. at 653.

[xxiv] Id.

[xxv] Wong Kim Ark, 169 U.S. 649, at 650 (1898).

[xxvi] Id. at 651.

[xxvii] Id. at 705.

[xxviii] See Reed, supra note x.

[xxix] Id.

[xxx] Id.

[xxxi] Id.

[xxxii] See U.S. Const. art. V.

[xxxiii] See id.

[xxxiv] Amendments to the U.S. Constitution, NAT’L ARCHIVES FOUNDATION, https://archivesfoundation.org/amendments-u-s-constitution/ (last visited Mar. 20, 2025).

[xxxv] See Parti & Hackman, supra note ii.

[xxxvi] See U.S. Const. amend. XIV, §1; see also United States v. Wong Kim Ark, 169 U.S. 649 (1898).

[xxxvii] Immigrants’ Rights Advocates Sue Trump Administration Over Birthright Citizenship Executive Order, ACLU (Jan. 20, 2025), https://www.aclu.org/press-releases/immigrants-rights-advocates-sue-trump-administration-over-birthright-citizenship-executive-order.

[xxxviii] Trump on Immigration, ACLU, https://www.aclu.org/trump-on-immigration (last visited Mar. 11, 2025).