DETAILED INSIGHTS ON THE US BIRTHRIGHT CITIZENSHIP

 

Introduction

Birthright citizenship has formed a vital part of the United States law since the 14^th Amendment was passed in 1868. It gives every child born in the US the right to citizenship without considering parents' immigration status.

This has played a great role in defining what is termed American, ensuring all persons enjoy equal rights born within the country. In recent times, however, birthright citizenship has been challenged on various grounds, raising vital legal and social questions as to what might well be its fate in the near future. The most recent being the Trump administration’s order stopping birthright citizenship.

This post considers why birthright citizenship matters, the challenges being thrown at it, and what might happen were this long-standing legal rule ever changes.

Brief info on birthright citizenship

There are three ways that a person can become a US citizen: through the parents; birth on US soil; or by means of a legal process known as naturalization.

That means children can obtain citizenship from their parents, who should be citizens, and that is what the law in many countries allows. Any baby born anyplace else within the world shall obtain American citizenship provided one or both parents an American citizens.

Beyond this, birthright citizenship is the fact that any person born in the United States is automatically a United States citizen. That would mean a baby born in North Carolina to undocumented parents has become a US citizen.

Birthright citizenship was bestowed through the Fourteenth Amendment, passed in 1868 to make former slaves citizens. It says, "All persons born or naturalized in the United States are citizens.”

The US Supreme Court decided, in United States v. Wong Kim Ark in 1898, that all children born within the US are persons covered under the Fourteenth Amendment, regardless of the parents. This is with one exemption for when a child’s parents are employed and representing a foreign government.

About 30 other countries, especially in the Americas, offer unconditional birthright citizenship. It includes Argentina, Brazil, Canada, and Mexico. Another thirty-plus countries still offer restricted birthright citizenship.

Legal challenges to birthright citizenship

Before considering the Trump administration’s order, many have been talking about challenging birthright citizenship as a means of preventing automatic citizenship for children born to undocumented immigrants or those without legal status. Some of these challenges have come in the form of new laws, such as the Birthright Citizenship Act of 2024 (S. 5223), which would alter who qualifies as being “subject to the jurisdiction” of the US by stating that only kids born to US citizens, green card holders, or active military members can be citizens.

Even Donald Trump, during his first term, went so far as to threaten that he could alter how the 14th Amendment is interpreted with an executive order, but that idea got a lot of backlash for being unconstitutional and he eventually dropped it.

These moves mark a big shift from long-time understandings of the 14^th Amendment and likely would continue to see heavy legal challenges. They directly violate a Constitutional right that has been supported by more than a century of Supreme Court decisions. Proponents of such changes argue it would help reduce illegal immigration, but such a shift in policy would really alter what United States citizenship means and could seriously impact American families, communities, and the overall vibe of the country.

Stopping birthright citizenship

Whenever it relates to ending birthright citizenship, one can always hear conservatives repeating how granting citizenship to children of parents who illegally entered the country undermines US sovereignty and encourages abuse of the immigration system. Trump repeatedly loudly proclaimed that he was opposed to birthright citizenship and said he could kill it with an executive order. He has now effected it with the new executive order. But can he legally do so? Most constitutional scholars say that he can't, and with his recent attempt, the courts will almost certainly strike it down.

Birthright citizenship is actually written right into the Constitution. The first sentence of the 14th Amendment says that 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. The part that cannot be changed, neither by an executive order nor by the taking up of a new law, is any alteration of it, which must be done through the amendment to the Constitution itself.

The 14^th Amendment was created to ensure that birthright citizenship was clear and to guarantee citizenship to African Americans and their descendants, who had been slaves. In fact, the country fought a civil war over it, and in 1868, they added this language to the Constitution. It was to clearly override the earlier Supreme Court decision in Dred Scott v. Sandford. Well, it is not in the president's powers to alter what the 14^th Amendment has clearly meant or stood for.

So, yes, Trump can make an executive order, but it would doubtless be overturned with the status of invalid as long-standing Supreme Court rules go. Perhaps Trump is counting on the Supreme Court changing their interpretation of the meaning of the 14^th Amendment to allow him to work around it with an executive order, but given the clarity of the wording, that may be unlikely.

The bad aspect of stopping birthright citizenship

Stopping birthright citizenship would really go against America’s promise of equality and inclusion, which would hurt its democratic values and its reputation as a nation of immigrants.

It would also have big legal, social, and humanitarian effects. Legally, it would mess with over a hundred years of rules set by the 14^th Amendment and the United States v. Wong Kim Ark case. Trying to change what “subject to the jurisdiction thereof” means through new laws or executive orders would confuse millions. This confusion will especially be about their citizenship status and could spark legal fights.

On top of that, limiting birthright citizenship could have a huge human impact. It might leave some people stateless, especially kids born to undocumented immigrants. Being stateless means missing out on basic rights like education, healthcare, and legal protections, which would make social inequality worse.

Plus, mixed-status families—where some members are US citizens and others aren’t—would face even more challenges. This can include the risk of family separations. Economically, these changes could really shake up families, communities, and the whole country. This is especially true since the US depends on the important contributions of immigrants.

Get help!

The 14^th Amendment is a meaningful amendment to the Constitution and was established to protect citizenship rights. Therefore, it would need to be greatly desired by politicians and the public in order to revise it. Given that the amendment proposal and ratification process have rigid requirements, altering birthright citizenship via amendment would be nearly impossible and, of course, stir many controversies.

At Gehi and Associates, we focus on complex immigration matters explained in an approachable and timely manner. Whether citizenship and visa applications or compliance, no matter what advice or assistance you require, we have the team prepared to guide you through. Contact us today to see how we can help with your immigration question or concern!