Birthright citizenship has been a foundational principle of U.S. immigration law for over a century, enshrined in the 14th Amendment to the U.S. Constitution. This provision guarantees that any child born on U.S. soil, regardless of their parents’ immigration status, is automatically granted U.S. citizenship. However, in recent years, birthright citizenship has come under attack, with various proposals and actions attempting to limit or eliminate this right.

One of the most controversial proposals was the potential Executive Order aimed at curbing birthright citizenship. While President Donald Trump floated the idea of an Executive Order to end birthright citizenship, its legal and constitutional implications have sparked significant debate and legal challenges.

In this article, we will explore the legal challenges and implications surrounding the Birthright Citizenship Executive Order, its potential impact on U.S. immigration policy, and the constitutional considerations involved.

What is Birthright Citizenship?

Birthright citizenship is the right of any child born in the United States to automatically acquire U.S. citizenship, regardless of the legal status of their parents. This principle is rooted in the 14th Amendment of the U.S. Constitution, which states:

“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.”

This provision, which was ratified in 1868, was originally designed to ensure that newly freed slaves and their descendants would have full citizenship rights in the aftermath of the Civil War. Over time, birthright citizenship has become a core tenet of U.S. immigration law, ensuring that children born in the U.S. are granted the same rights as their U.S.-born peers.

The Executive Order Proposal

In 2018, President Donald Trump suggested using an Executive Order to end birthright citizenship for children of undocumented immigrants. Trump claimed that the 14th Amendment’s birthright provision could be overturned by a presidential decree, arguing that it was a misinterpretation of the Constitution.

The proposed Executive Order sought to reinterpret the 14th Amendment, arguing that children of unauthorized immigrants (undocumented immigrants) should not be granted automatic citizenship upon birth. Trump’s argument focused on the idea that the clause “subject to the jurisdiction thereof” should not apply to children born to non-citizens who are in the U.S. unlawfully.

Despite President Trump’s vocal support for ending birthright citizenship, the proposal faced immediate backlash from legal experts, advocacy groups, and lawmakers who argued that such an executive action would be unconstitutional.

Legal Challenges to the Birthright Citizenship Executive Order

1. Constitutional Interpretation of the 14th Amendment

The core legal challenge to the Birthright Citizenship Executive Order is its potential violation of the 14th Amendment. Legal scholars, including constitutional law experts, have widely argued that birthright citizenship is clearly guaranteed by the Constitution, and only Congress, not the president, can amend or alter the Constitution.

• Textual Interpretation: The language of the 14th Amendment has long been interpreted as providing automatic citizenship to any child born on U.S. soil. Legal challenges to the executive order assert that the amendment’s text is unequivocal and cannot be changed through a presidential decree.

• Precedent: Over the years, the courts have consistently upheld birthright citizenship, and the U.S. Supreme Court has ruled that any child born in the U.S., except for children of foreign diplomats or enemy forces, is entitled to citizenship.

2. Lack of Presidential Authority

Many legal experts argue that President Trump’s proposal would exceed the president’s constitutional authority. The U.S. Constitution grants Congress the power to create and modify laws, but it requires a constitutional amendment to alter the fundamental rights outlined in the Constitution, such as the right to birthright citizenship. Legal challenges to the Executive Order would likely argue that the president cannot unilaterally change constitutional rights.

3. Judicial Precedent

Several Supreme Court decisions have reaffirmed the principles of birthright citizenship, including the landmark 1898 case of United States v. Wong Kim Ark. In this case, the Court ruled that a child born in the U.S. to Chinese immigrants was entitled to citizenship, reinforcing the notion that the 14th Amendment applies broadly to all children born in the U.S.

Legal challenges to any Executive Order targeting birthright citizenship would likely rely on these precedents, asserting that an Executive Order cannot undo long-standing constitutional protections without legislative action or a constitutional amendment.

Implications of the Birthright Citizenship Executive Order

If the Executive Order were to pass, it would have profound implications for U.S. immigration policy and the future of birthright citizenship.

1. Impact on Immigrant Families

The most immediate impact would be on immigrant families, particularly those without legal status. If birthright citizenship were removed, children born in the U.S. to undocumented immigrants would not automatically gain U.S. citizenship. This could lead to:

• Statelessness: Children could be left in a position where they do not hold U.S. citizenship or the citizenship of their parents’ home country.

• Family Separation: Families could be divided, with children remaining in the U.S. and their parents being deported, or parents potentially being forced to leave with their children to avoid statelessness.

2. Legal and Political Fallout

A change in birthright citizenship would also have significant legal and political consequences:

• Legal Chaos: The constitutional and legal uncertainty surrounding the change would likely result in a flood of lawsuits and confusion over who qualifies for U.S. citizenship.

• Political Ramifications: Birthright citizenship has been a deeply divisive issue in U.S. politics, and any attempt to eliminate it could lead to political polarization and protests. It would also likely shift the focus of immigration policy debates in the U.S. for years to come.

What’s Next for Birthright Citizenship?

As of 2025, the Birthright Citizenship Executive Order has not been implemented, and any effort to overturn birthright citizenship would require significant legal battles and constitutional amendments. Congress has the authority to change U.S. immigration laws, but doing so would require a rigorous process, including a constitutional amendment to change the 14th Amendment’s language.

Given the current political landscape and legal challenges, it seems unlikely that the Birthright Citizenship Executive Order would survive the courts without significant changes or compromises. However, the debate surrounding birthright citizenship is far from over and will continue to influence U.S. immigration policy in the years to come.