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One of the signature immigration policy initiatives of the incoming Trump administration is to end birthright citizenship. This longstanding principle, which ensures that anyone born within U.S. borders is automatically a U.S. citizen, has come under unprecedented scrutiny.

This concept is enshrined in the 14th Amendment to the U.S. Constitution, which was ratified and became part of the Constitution in July 1868.  It was passed after the U.S. Civil War to reverse the infamous Dred Scott decision and to make clear that formerly enslaved peoples and the children of formerly enslaved peoples are U.S. citizens.  The 14th Amendment reads: “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.”

What is Birthright Citizenship?

Birthright citizenship is the principle that any individual born on U.S. soil is recognized as a U.S. citizen from the moment of birth, regardless of parental immigration status.  Over time, both legal precedent and the judiciary have reaffirmed that birthright citizenship serves as a cornerstone of American civic identity, ensuring that the circumstances of one’s parentage or lineage do not bar entry into the full spectrum of rights and responsibilities that define U.S. citizenship.  It is a most American idea.

The Supreme Court addresses Birthright Citizenship in Wong Kim Ark

Although the 14th Amendment firmly established birthright citizenship in the United States, many other countries have historically taken differing approaches—often tying citizenship to ancestry rather than place of birth—and it was against this international backdrop that, thirty years after the amendment’s passage, the U.S. Supreme Court had the opportunity to definitively consider its meaning in the landmark case of United States v. Wong Kim Ark, 169 U.S. 649 (1898).

Wong Kim Ark was born in San Francisco and traveled abroad.  He was denied re-entry into the U.S. under the Chinese Exclusion Act, a notoriously racist law that barred nearly all Chinese immigration.  He challenged his denial of entry and the government’s refusal to recognize his U.S. citizenship.  The Supreme Court ruled that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.”  Since Wong Kim Ark, the principle that children born in the U.S. to foreign parents, not in diplomatic status, are U.S. citizens, regardless of the immigration status of the parents, has been widely accepted and has not been serious challenged.

Challenges to Birthright Citizenship

Nonetheless, a contingent of legal scholars have asserted that children born to undocumented individuals on U.S. soil should not be recognized as citizens, contending that the phrase ‘subject to the jurisdiction thereof’ excludes those whose parents lack lawful immigration status.

The most vehement of this group is disbarred January 6th conspirator John Eastman who has long argued that undocumented individuals are not fully subject to the jurisdiction of the U.S. and therefore, their children do not obtain citizenship on account of their birth.  The lack of U.S. jurisdiction over undocumented individuals in the United States would be quite a surprise to just about everybody in this country.

Potential Impact on U.S.-Born Children of Undocumented Parents

Despite the absence of compelling legal grounds to strip U.S.-born children of undocumented individuals of their citizenship, Trump and his appointees have nonetheless openly stated their determination to contest the validity of this long-standing principle.

But how could they do that?  It is quite clear that a President can not issue an executive order to overrule a Constitutional provision and a Supreme Court precedent that has been followed for 125 years.  It is equally clear that not even an act of Congress could change the language of the Constitution.  So, how exactly would this work?

Mechanisms for Challenging the Status Quo

The incoming administration has, however, been notably vague about the precise methods they might employ, providing few concrete details on how such a challenge could be launched or enforced. One theory is that the administration will order the Department of State not to issue passports to children born in the U.S. who could not prove the lawful status of their parents.

Such an action would set up a legal battle where a child denied a passport would have to sue the State Department to recognize their U.S. citizenship.  That case could make its way through the courts and, potentially, to the U.S. Supreme Court, which would have the power to revisit the decision in Wong Kim Ark.

The Road to a Supreme Court Showdown

Only a decade ago, the notion that the Supreme Court might overturn 125 years of firmly established precedent—thereby injecting chaos into the citizenship status of millions—would have seemed entirely preposterous. I am less willing to give the Supreme Court of 2024 the same benefit of the doubt.