Trump Order Purports to End Constitutionally-Protected Birthright Citizenship
Published by The Lawfare Institute
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President Trump’s first-day executive order on “Protecting the Meaning and Value of American Citizenship” purports to bring an end to birthright citizenship, which provides that babies born on U.S. soil are granted automatic U.S. citizenship. Birthright citizenship has long been understood to be guaranteed under the Fourteenth Amendment of the U.S. Constitution. Multiple lawsuits have already been filed challenging the order’s lawfulness.
Trump’s order states that U.S. citizenship does not extend to babies born on U.S. soil under certain conditions: first, if the babies’ fathers are neither citizens nor legal permanent residents, and second, if their mothers are either “unlawfully present in the United States” or present in the U.S. on a “temporary” visa. (As examples, the order points to mothers “visiting on a student, work, or tourist visa.”) The order specifies that the terms “mother” and “father” refer to “the immediate” female and male “biological progenitor.” (It is not clear how this would apply to adoptive parents, children born to IVF, or children born to an unknown biological father or an absent father whose citizenship status is unknown.) The order does not purport to alter current law granting citizenship to any baby born to a U.S. citizen mother or father.
The order is a significant departure from established law regarding birthright citizenship. Under Section 1 of the Fourteenth Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States[.]” Following the Supreme Court’s 1898 ruling in United States v. Wong Kim Ark—which found that a Chinese-American man born in the United States to Chinese parents was an American citizen— the overwhelming majority of scholars and jurists have understood any individual born on American soil to be a citizen, with exceptions for babies born to foreign diplomats, invading military forces, and (until 1924) members of certain sovereign Native American tribes.
The order applies this altered status only to babies born in the United States 30 days or more after the issuance of the order. It does not apply retroactively.
The order provides that 30 days from its issuance, “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to babies whose parents do not meet these new, more limited qualifications. Social Security numbers, for example, would not be issued. It is not clear how the federal government plans to implement this requirement, given the absence of preexisting structures for various jurisdictions to ascertain the citizenship status of new parents.
The order is available here and below.
