Who Is Eligible for U.S. Citizenship by Birth?

*Update – Jan. 23, 2025* A Temporary Restraining Order has stopped this executive order. Read more.

*Update – Feb. 5, 2025* A federal judge issued a nationwide hold indefinitely blocking President Donald Trump’s order to restrict birthright citizenship. Read more.

*Update – Feb. 6, 2025* The Trump administration is appealing an injunction on its birthright citizenship executive order to the Ninth Circuit. Read more.

Protecting the Meaning and Value of American Citizenship

Understanding Citizenship Through the U.S. Constitution

The concept of birthright citizenship is deeply rooted in the U.S. Constitution. The Fourteenth Amendment, ratified in 1868, guarantees 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.”

This landmark provision nullified the Supreme Court’s infamous decision in Dred Scott v. Sandford (1857), which wrongly excluded people of African descent from U.S. citizenship based solely on their race. The Fourteenth Amendment affirmed that citizenship is a fundamental right, protected by the Constitution, and not subject to discrimination. However, debates continue over-interpreting the Fourteenth Amendment’s jurisdiction clause, particularly regarding who qualifies as “subject to the jurisdiction thereof.”

Clarifying the Scope of Birthright Citizenship

The Fourteenth Amendment does not grant automatic citizenship to every child born in the United States. For instance, children born to foreign diplomats or enemy occupiers during times of war have historically been excluded. Congress codified this interpretation in federal law under 8 U.S.C.wartimech mirrors the language of the Fourteenth Amendment. A presidential executive order was issued on January 20, 2025, to clarify these rules further. It specifies that U.S. citizenship does not automatically apply to specific individuals born in the United States, depending on their parents’ immigration status.

Key Provisions of the Executive Order

The Executive Order outlines the following restrictions:

1. Children born to parents with unlawful immigration status: If a person’s mother was unlawfully present in the U.S. at the time of their birth and their father was neither a U.S. citizen nor a lawful permanent resident, the child will not automatically receive U.S. citizenship.
2. Children born to parents lawfully present temporarily: If a person’s mother was legally present in the U.S. on a temporary visa (e.g., student, tourist, or work visa) at the time of their birth and their father was neither a U.S. citizen nor a lawful permanent resident, the child will not be granted automatic citizenship.

These provisions apply only to individuals born in the U.S. after 30 days from the date of the Executive Order.

Legal Challenges Are Likely

This Executive Order raises significant legal and constitutional questions and will likely be challenged in federal court. Critics argue that the policy may conflict with the Fourteenth Amendment, which has been interpreted to confer citizenship broadly on individuals born in the United States. Legal experts expect courts to examine whether the Executive Order exceeds presidential authority and whether it aligns with constitutional principles. Until such challenges are resolved, there is uncertainty about how and when the policy will be enforced.

Policy Rationale

The Executive Order emphasizes the value of U.S. citizenship as a “priceless and profound gift.” It aims to ensure that birthright citizenship is granted only to those who meet the constitutional criteria of being “subject to the jurisdiction” of the United States. Supporters of the policy argue that it reinforces the integrity of U.S. citizenship laws. However, opponents contend that it risks denying citizenship to individuals historically eligible under the Fourteenth Amendment.

Conclusion

The Fourteenth Amendment has long been a cornerstone of American democracy, ensuring that citizenship is not withheld based on race or status. However, the interpretation of its jurisdiction clause continues to evolve, raising important legal and policy questions. As this Executive Order faces likely legal challenges, it’s crucial to stay informed and rely on trusted legal resources for accurate information. U.S. citizenship remains one of the most significant rights and responsibilities, and understanding its eligibility requirements is essential.

Schedule a Consultation with an Immigration Lawyer

Citations