From Constitution to Controversy: Exploring Birthright Citizenship in the United States
- Human Rights in Context
- Mar 1
- 11 min read
Mr Raisul Sourav
Raisul is a Doctoral Researcher in Law at the School of Law, University of Galway, Republic of Ireland. He holds a Master’s Degree in International Energy Law and Policy from the University of Stirling in the UK. He was a recipient of prestigious British Chevening Scholarship in 2017-18. Raisul is an Associate Professor of Law (on leave) at Dhaka International University, Dhaka, Bangladesh. He is also a Lawyer, Law and Justice Analyst and an Equality, Inclusion and Rights Activist.
Introduction
The ban on US birthright citizenship by the 47th President of the United States, Donald Trump, is probably the most hyped topic at this moment around the planet. This means babies physically born on US soil are no longer entitled to obtain citizenship automatically by birth. This contrasts with the fact that, since 1868, all children born in the territory of the United States to immigrant parents are regarded as US citizens, irrespective of their parents’ immigration status. US territory encompasses all the fifty states, US territorial waters, foreign vessels in the US internal waterways, and airspace over the US land, internal waters, and territorial seas and excludes the US registered aircraft outside US airspace, as well as the US military installations, embassies, or consulates overseas.
Earlier, President Donald Trump termed it “birth tourism” and banned this century-long constitutionally guaranteed right immediately after being sworn in. He has steadily contended that the clause of the 14th Amendment was initially designed to benefit the offspring of enslaved people, rather than to offer a universal chance for people globally to assert US citizenship. The President signed the directive “Protecting the Meaning and Value of American Citizenship” on 20 January as the beginning of his anti-immigration commitments. However, the order took effect from 19 February.
This blog article aims to unpack the origin and evolution of the territory-based birthright citizenship in the US and the consequences of its ban. It critically examines the legal basis of the principle, the exceptions therein and the contents of the new executive order banning birthright citizenship. Subsequently, it shed light on the popular arguments to eliminate this century-long practice, including an increase of illegal immigrants in the US and travel for ‘birth tourism’.
Nonetheless, there are multilevel implications of the ban for both the legal and illegal immigrants, which will also affect the US economy. It severely impacts the immigrants’ civic and financial activities, family ties, schooling, access to health and other social services, etc, of the immigrants. However, the court has already challenged and temporarily restrained the order, and it is anticipated that ultimately the matter will reach the Supreme Court. Hence, this paper also explores alternative avenues to amend the practice of birthright citizenship other than this presidential order if the court finally strikes it down. The controversy over birthright citizenship is unlikely to disappear soon, any attempt to change the system must balance national interests with the principles of equality and justice enshrined in the US Constitution.
The History of the Birthright Citizenship in the USA
Birthright citizenship is described as the automatic conferment of citizenship as a legal status to children at the time of their birth. This status can be acquired in two ways: i) ancestry-based citizenship (jus sanguinis, “right of blood”) or acquiring citizenship inherently through parentage or bloodline and ii) birthplace-based citizenship (jus soli, “right of the soil”).
Historically, the concept of “birthplace-based citizenship” originates from the Roman legal system and has subsequent foundations in the English Common Law tradition that emerged from the famous Calvin’s (1608) case. Since the country’s independence in 1776, citizenship has been mainly regulated by the laws of individual states in the United States. However, in Dred Scott v. Sandford (1857), the Supreme Court of the United States (SCOTUS) ruled that people who were forcibly brought to the US to be sold as enslaved people and their descendants could not be considered citizens.
Nonetheless, in 1866, the 14th Amendment to the USA Constitution provided legal recognition of citizenship by birth, as it states ‘All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside’.
Afterwards, in United States v. Wong Kim Ark (1898), the SCOTUS held that laws passed by Congress cannot exclude persons born in this country from the operation of the broad and clear words of the Constitution. Justice Horace Gray wrote for the majority that regardless of the citizenship status of Wong’s parents, he was “subject to the jurisdiction” of the US and qualified for citizenship as a child born in the country. Additionally, the court confirmed that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth”.
Later, in 1924, Congress widened citizenship for all Native Americans born in the United States. The Immigration and Nationality Act of 1952 defined citizens and recognised birthright citizenship. Subsequently in 1982, in Plyler v. Doe, the SCOTUS reaffirmed birthright citizenship for children of undocumented immigrants.
Are there any Exceptions?
Yes. A child born in the US to a foreign diplomatic officer with diplomatic immunity is not considered a US citizen because the child is not subject to the jurisdiction of the United States. Moreover, in 2021, in Fitisemanu v. United States (1 F.4th 862, 881), the SCOTUS declared that anyone born in American Samoa’s unincorporated territories is not automatically guaranteed birthright citizenship unless Congress enacts legislation. Also, the child of enemy occupiers – does not have birthright citizenship.
Arguments on behalf of the Ban Abolishing Birthright Citizenship
The proponents of this new order banning birthright citizenship argue that the SCOTUS has misinterpreted the intentions of the legislators of the 14th Amendment regarding the phrase “subject to the jurisdiction thereof”. According to them, the framers of the amendment recognised that the offspring of illegal immigrants are subject to a foreign power like their parents. Consequently, they were not subject to the jurisdiction of the United States. The supporters think that the Wong Kim Ark verdict does not allow for the legalisation of illegal immigrants, as Wong Kim Ark’s parents were legally present in the United States at the time of his birth. Furthermore, advocates of this ban also point to the text in the Civil Rights Act of 1866 to bolster the assertion that the children of illegal foreigners were not subject to the jurisdiction of the United States.
Hence, they believe the action is necessary as the birthright system is being abused by illegal immigrants in the US, urging, therefore, stricter criteria for attaining American citizenship. The defenders of this directive also claim that the existing strategy regarding birthright citizenship substantially attracts illegal immigration and poses a threat to national security. Further, they consider the existing system to be a magnet for ‘birth tourism’ where migrants enter the country during the concluding weeks of their pregnancies specifically to give birth to their child on US soil, thereafter, leveraging their child’s citizenship to facilitate the entry of relatives through “chain migration”, also known as family-based migration. Donald Trump’s administration’s stance is that a pregnant woman or parents cannot enter the United States, give birth, and anticipate that their child will automatically acquire US citizenship.
On the other hand, a group of Republican Senators have also initiated a bill named the Birthright Citizenship Act of 2025, which seeks to limit birthright citizenship to children born to illegal immigrants and non-immigrants holding temporary visas. The bill proposes the criteria for citizenship acquisition based on birth in the United States, granting it to children born to at least one parent who is a U.S. citizen or national, a lawful permanent resident, or a non-citizen serving on active military duty.
What does the Executive Directive Actually Contain?
President Trump’s order creates two groups of individuals born in the US who would not be entitled to get citizenship by birth automatically. Firstly, those whose mother was unlawfully present in the US and whose father was not a US citizen or lawful permanent resident at the time of the child’s birth; and secondly those whose mother was in the US on a lawful but temporary visa i.e. as a student or tourist and whose father was not a US citizen or lawful permanent resident at the time of the birth. This Presidential order also prohibits federal agencies from issuing or acknowledging documentation verifying these children’s US citizenship. The order explicitly addresses children born to unauthorised immigrants and individuals legitimately residing in the US on temporary visas. Additionally, it does not include transgender parents or parents from other LGBTQI+ identities. It defines “mother” as a “female biological progenitor” and “father” as a “male biological progenitor.”
The order relies on the legal interpretation that the phrase “subject to the jurisdiction” of the US would not apply to undocumented immigrants. Although, in Plyler v. Doe (1982), the Supreme Court held that according to the 14th Amendment, there was “no plausible distinction” between immigrants who entered lawfully and those who entered unlawfully, as both were subject to the civil and criminal laws of the State they resided in.
Temporary Suspension of the Directive by the Courts
On 23 January, US District Judge John C. Coughenour for the Western District of Washington ruled in response to a suit from a coalition of states — Washington, Arizona, Illinois and Oregon that temporarily restrained Trump’s order nationwide for the next 14 days. The court called the order blatantly unconstitutional to the 14th Amendment. Subsequently, another two federal judges in Maryland and New Hampshire have stopped the executive order indefinitely. Several other cases contesting the order are also being filed and getting underway across the US.
However, President Trump’s administration challenges the restraining order. Moreover, they may request a federal appeals court in San Francisco to revoke the Temporary Restraining Order (TRO) and permit enforcement during the litigation process, which may extend for several months.
The Implications of this Presidential Order
President Trump has incorrectly claimed that the US is the only state offering birthplace-based citizenship. Nevertheless, more than 30 countries, including Argentina, Brazil, Canada, Mexico, Uruguay, Venezuela, etc., have the same system of acquiring citizenship by birth. On the contrary, more than 20 countries, like the UK, Ireland, Australia, and New Zealand, have reversed or rolled back their policies from birthright citizenship.
As of January 2022, an estimated 11 million immigrants were residing in the U.S. illegally, a figure that some analysts now place at 13 million to 14 million. The government considers their US-born children to have US citizenship until the order comes into effect. Preliminary findings of the Centre for Immigration Studies reveal that there were between roughly 225,000 to 250,000 births to illegal immigrants in the US, which is nearly 7% of total births. Research indicates that over 150,000 children born annually in the United States will be ineligible for citizenship from now. Consequently, the directive has sparked fear and ambiguity for numerous immigrant families, international workers, students, and tourists.
This new presidential directive, which eliminated birthright citizenship, would affect everyone if sustained by the court. Experts assert that the undocumented population will increase and that all Americans would be affected if this order is ultimately implemented. They anticipate thousands of newborns would be harmed each year. A report in The Guardian apprehended that a significant number may be born undocumented and potentially become stateless, without eligibility or the capacity to acquire citizenship from their parents’ country of origin. It would deprive them of their rights and incapacitate them from engaging in economic or civic activities. This may engender an entirely new generation of individuals born into legal ambiguity.
It further predicts that these babies would be rendered ineligible for numerous government programs that assist low-income families, including nutritional assistance and subsidised health insurance. The newborns requiring intensive hospital care will no longer qualify for health insurance coverage through Medicaid. As a result, human rights organisations also contend that the order would impose a burden on local jurisdictions, compelling states and municipalities to bear the expenses of delivering fundamental care for thousands of children deprived of nationally subsidised assistance. This may lead to delays and inaccuracies in acquiring proof of citizenship, even for the eligible millions. Besides, parents of infants eligible for US citizenship may also experience financial difficulties, as they can delay obtaining Medicaid while the government agencies confirm their status.
Another legal implication would be that the president would get to decide who is subject to the jurisdiction of the United States and who is not. Moreover, in the future, citizens’ rights and the constitution could be amended through executive order. Nonetheless, even if the Trump administration is not successful in completely abolishing the present system of birthright citizenship due to the court’s order; officials have reportedly been exploring other ways to tackle the issue. For example, they could try to limit short-term visas for pregnant travellers, so those travellers couldn’t give birth in the boundary of the US and acquire automatic citizenship.
Alternative Ways to Strike Out Birthright Citizenship in the US
The SCOTUS rejected the view that Congress has the authority to revoke an individual’s US citizenship in the Afroyim v. Rusk, (1967) case. Subsequently, in Vance v. Terrazas, the SCOTUS confirmed that a person cannot lose their US nationality unless they voluntarily relinquish that status. So, According to the existing legal system, the loss of the US birthright citizenship can only transpire through the voluntary renunciation of citizenship by an individual, which includes, but is not confined to: pledging allegiance to a foreign nation; formally renouncing the US nationality; or engaging in acts of treason or attempting to subvert the United States.
Therefore, striking out this more than 150 years long established precedent and legal principles of birthright citizenship from the legal regime of the United States would be highly complicated and challenging. It necessitates a new amendment to the nation’s founding charter through a significant political consensus, which requires a two-thirds majority in both the House and Senate, alongside ratification by three-quarters of the states, or three-fourths of conventions called in each state for ratification. Other than the legislative process, the principle of birthright citizenship could be altered through a significant reinterpretation of the existing 14th Amendment by the SCOTUS.
Birthright Citizenship in Europe
European countries do not confer automatic and unconditional citizenship to children born to foreign parents. However, now 10 European countries implement a variant of jus soli, typically contingent upon the requirement that the parents reside in the country for a specified duration prior to the child’s birth. European nations with such regulations include Belgium, Germany, Ireland, Portugal, and the United Kingdom.
Nonetheless, certain other states implement double jus soli, wherein children born in a nation to foreign nationals may obtain citizenship at birth if at least one parent was also born in that nation. Children in France, Luxembourg, the Netherlands, Portugal, and Spain immediately obtain citizenship through this method whereas Belgium and Greece possess double jus soli, albeit with certain other conditions.
Conclusion
Terminating territory-based birthright citizenship in the United States marks a historic shift in the country’s immigration and citizenship policy, profoundly changing a principle that has influenced American heritage and identity for over 420 years. Moreover, it originates practical challenges to eradicate a constitutionally shielded right through executive order. Nevertheless, it has sparked intense legal and societal debates that also bring significant implications for both documented and undocumented immigrants and their children in the US.
Furthermore, this executive action raises substantial questions regarding national identity, equal rights, and the balance in formulating immigration policy. The judicial pushback and the likely Supreme Court battle indicate that the policy’s future is uncertain until the final settlement by the SCOTUS, which could take years.
As a result, the ongoing legal disputes about birthright citizenship will significantly impact the future of millions and the fundamental principles upheld by the United States. The decision will definitely establish a precedent for the nation’s future approach to immigration, citizenship, and constitutional integrity. Hence, now is the time to wait to see how the court will interpret and handle this matter and resolve this burning issue in the coming days.
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