Birthright citizenship
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Birthright citizenship refers to the concept that individuals born within the United States or an area subject to its jurisdiction are granted automatic citizenship. Birthright citizenship may be acquired in one of two ways:[1]
- by being born within the United States or its territories
- by being born to U.S. citizens elsewhere in the world
Birthright citizenship is established in the Citizenship Clause of the Amendment XIV, United States Constitution. This clause was interpreted by the Supreme Court of the United States in 1898 to mean that citizenship could not be denied to any person born in the United States. The main point of contention regarding birthright citizenship is this interpretation of what's called the jus solis principle—the conference of citizenship on individuals born within United States borders—particularly as it relates to illegal immigration.[1]
Overview
Birthright citizenship is the means by which individuals are granted citizenship via the circumstances of their birth. Birthright citizenship can be acquired in one of two ways:[2]
- jus soli (by birth within U.S.) - confers automatic citizenship on individuals born within the borders of the United States or its territories
- jus sanguinis (by parentage) - confers citizenship on children born to U.S. citizen parents who are residing outside of the United States
Children born within U.S. waters or airspace are also granted citizenship by birth. Citizenship is conferred to the child no matter the parent's race, ethnicity, or nationality. This includes children born to parents who are residing in the United States without legal permission.[1][3][4]
The concept of birthright citizenship in the United States is governed by Section 1 of the Amendment XIV, United States Constitution, ratified on July 9, 1868. The Fourteenth Amendment primarily provides an expanded definition of United States citizenship, which had previously excluded African Americans. Section 1 is known as the Citizenship Clause of the Fourteenth Amendment. Birthright citizenship was further codified in the Immigration and Nationality Act of 1952, which states that persons born in the United States are U.S. citizens.[5]
Full text of the Fourteenth Amendment
| “ |
Section 1. Section 2. Section 3. Section 4. Section 5. |
” |
| —Amendment XIV, United States Constitution[7] | ||
Legal interpretation
In 1898, the Supreme Court of the United States issued its ruling in United States v. Wong Kim Ark, a case which prompted questions about how the Citizenship Clause of the Amendment XIV, United States Constitution ought to be interpreted. Wong Kim Ark was a man of Chinese descent born in the United States to non-citizens who had established permanent residence in the country. The case arose when Wong Kim Ark returned to the United States following a short visit to China and was denied entry because the customs officer did not consider him to be a citizen of the United States. In a 6-2 opinion (the ninth justice did not yet serve on the court when the case was argued and did not join in the decision), the court held that under the Fourteenth Amendment, citizenship could not be denied to any person born in the United States. The majority opinion stated the following:[8][9]
| “ | The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.[6] | ” |
| —Justice Horace Gray, United States v. Wong Kim Ark[8] | ||
The dissent was authored by Chief Justice Melville Fuller, who argued that America's legal system had relied upon the principle of jus sanguinis (parentage) more than jus soli (birthplace) when determining citizenship and that the proper interpretation of the Fourteenth Amendment confers citizenship on individuals born within the United States who are not subject to any foreign power.
| “ | the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens; nor, on the other hand, does it arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.[6] | ” |
| —Chief Justice Melville Fuller, United States v. Wong Kim Ark[8] | ||
Statistics
The Pew Research Center estimated that about 275,000 children were born in the United States in 2014 to individuals residing in the country without legal permission. The center also estimated that in that year, a total of 4.7 million children who were born in the United States lived with individuals who were residing in the country without legal permission. The organization did not collect statistics on the number of children born to immigrants with lawful permanent resident status. The following table displays estimates from the Pew Research Center on the number of children born to individuals residing in the country without legal permission between 1980 and 2014.[10]
| Number of children born to individuals residing in the U.S. without legal permission | |||
|---|---|---|---|
| Year | Number | Year | Number |
| 2014 | 275,000 | 1996 | 180,000 |
| 2013 | 290,000 | 1995 | 170,000 |
| 2012 | 305,000 | 1994 | 150,000 |
| 2011 | 305,000 | 1993 | 150,000 |
| 2010 | 320,000 | 1992 | 120,000 |
| 2009 | 330,000 | 1991 | 120,000 |
| 2008 | 355,000 | 1990 | 95,000 |
| 2007 | 370,000 | 1989 | 75,000 |
| 2006 | 370,000 | 1988 | 75,000 |
| 2005 | 355,000 | 1987 | 70,000 |
| 2004 | 335,000 | 1986 | 45,000 |
| 2003 | 315,000 | 1985 | 45,000 |
| 2002 | 300,000 | 1984 | 45,000 |
| 2001 | 295,000 | 1983 | 40,000 |
| 2000 | 240,000 | 1982 | 35,000 |
| 1999 | 215,000 | 1981 | 30,000 |
| 1998 | 190,000 | 1980 | 30,000 |
| 1997 | 195,000 | ||
| Source: Pew Research Center, "Number of babies born to unauthorized immigrants in U.S. continues to decline" | |||
Debate
The main point of contention in regards to birthright citizenship is the interpretation of the jus solis principle—the conference of citizenship on individuals born within United States borders—particularly as it relates to illegal immigration. Some, such as Jon Feere at the Center for Immigration Studies (CIS), a self-described "low-immigration, pro-immigrant" 501(c)(3) nonprofit advocacy group, argue that the phrase "subject to the jurisdiction thereof" in the Fourteenth Amendment is not well-defined, leading to an overly broad interpretation. Feere contends that this interpretation, namely that any individual born in the United States is a citizen, encourages immigrants to legally and illegally travel to the United States to have their children, who then "enjoy the same rights and are entitled to the same benefits as the children of U.S. citizens." In other words, Feere argues that this interpretation of jus solis citizenship leads to higher rates of immigration that ultimately strain public resources.[11][12]
According to a 2010 report from Margaret Mikyung Lee at the Congressional Research Service (CRS), five bills were introduced in the 111th Congress that would have prohibited birthright citizenship for children born to parents who were residing in the country without legal permission. These bills were introduced "partly to remove an incentive for aliens to enter the United States illegally, or enter legally on a nonimmigrant visa and then illegally stay beyond the visa period," according to the report. Supporters of such bills argue that narrowing the interpretation of the Citizenship Clause in this way would not contradict the U.S. Supreme Court's ruling in United States v. Wong Kim Ark:[1]
| “ | Wong Kim Ark made no distinction between lawfully and unlawfully present alien parents, nor between legal resident and nonimmigrant aliens. ...[O]ne could argue that the holding is limited to construing the Fourteenth Amendment in the context of parents who are legal permanent residents.[6] | ” |
| —Congressional Research Service[1] | ||
The CRS report also outlines arguments against narrowing the interpretation of the Citizenship Clause. According to the report, such legislation could raise questions over the citizenship status of certain individuals, such as those born in the United States to parents in the country on temporary visas.[1]
Alex Nowrasteh, writing in The Federalist, argues that birthright citizenship for children of individuals residing in the country without legal permission helps immigrants assimilate into American life more quickly. Nowrasteh writes that in countries without birthright citizenship, children born to non-citizens have "little legal stake in the nations they were born in" and are "more prone to crime and extreme political ideologies." In an article in Mother Jones, Bryan Schatz agrees. Schatz argues that ending birthright citizenship for children born to parents residing in the country without legal permission would create a class of stateless individuals, a situation that "would quickly become a humanitarian crisis." According to Schatz, in other countries without birthright citizenship,[12][13]
| “ | [s]tateless individuals cannot participate in any political process anywhere. They're often subject to arbitrary detention. They have limited access to health care and education. They are especially vulnerable to crime and have little legal recourse if they are victimized. They have no economic rights and few job prospects.[6] | ” |
| —Bryan Schatz[13] | ||
Executive Order: Protecting The Meaning And Value Of American Citizenship
- See also: Executive Order: Protecting The Meaning And Value Of American Citizenship (Donald Trump, 2025)
Executive Order: Protecting The Meaning And Value Of American Citizenship is an executive order that President Donald Trump (R) issued on January 20, 2025, during his second term in office.[14]
Executive orders are directives the president writes to officials within the executive branch requiring them to take or stop some action related to policy or management. They are numbered, published in the Federal Register, cite the authority by which the president is making the order, and the Office of Management and Budget issues budgetary impact analyses for each order.[15][16] Click here to read more about executive orders issued during Trump's second term.
The section below displays the text of the order. Click here to view the order as published on the White House website.
| “ |
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered: Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment 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.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race. But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.” Consistent with this understanding, the Congress has further specified through legislation that “a person born in the United States, and subject to the jurisdiction thereof” is a national and citizen of the United States at birth, 8 U.S.C. 1401, generally mirroring the Fourteenth Amendment’s text. Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth. Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth. (b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order. (c) Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship. Sec. 3. Enforcement. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Commissioner of Social Security shall take all appropriate measures to ensure that the regulations and policies of their respective departments and agencies are consistent with this order, and that no officers, employees, or agents of their respective departments and agencies act, or forbear from acting, in any manner inconsistent with this order. (b) The heads of all executive departments and agencies shall issue public guidance within 30 days of the date of this order regarding this order’s implementation with respect to their operations and activities. Sec. 4. Definitions. As used in this order: (a) “Mother” means the immediate female biological progenitor. (b) “Father” means the immediate male biological progenitor. Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. [6] |
” |
Trump v. Washington
- See also: Trump v. Washington
Trump v. Washington is a case argued before the Supreme Court of the United States on May 15, 2025, during the court's October 2024-2025 term. It was consolidated with Trump v. CASA and Trump v. New Jersey. The Supreme Court heard oral arguments to decide whether to issue a partial stay of federal courts’ preliminary injunctions that block Executive Order: Protecting The Meaning And Value Of American Citizenship.[17]
In a 6‑3 decision, the United States Supreme Court partially stayed the judgment of the United States District Court for the District of Maryland, holding that federal district courts likely exceeded their equitable authority under the Judiciary Act of 1789 by issuing universal injunctions that go beyond providing relief to the named plaintiffs. Justice Amy Coney Barrett delivered the opinion of the Court.[18]
See also
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 Congressional Research Service, "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents," August 12, 2010 Cite error: Invalid
<ref>tag; name "crsbirthright" defined multiple times with different content - ↑ US Legal, "Birthright Citizenship Law and Legal Definition," accessed December 13, 2016
- ↑ U.S. Department of State, "Foreign Affairs Manual: Acquisition of U.S. Citizenship by Birth in the United States," accessed January 23, 2017
- ↑ Lawyers.com, "What Rights Children of Illegal Immigrant Parents Have in the U.S.," accessed December 16, 2016
- ↑ Legal Information Institute, "8 U.S. Code § 1401 - Nationals and citizens of United States at birth," accessed December 14, 2016
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Legal Information Institute, "14th Amendment," accessed December 13, 2016
- ↑ 8.0 8.1 8.2 Legal Information Institute, "United States v. Wong Kim Ark," accessed December 13, 2016
- ↑ Oyez, "United States v. Wong Kim Ark," accessed December 14, 2016
- ↑ Pew Research Center, "Number of babies born to unauthorized immigrants in U.S. continues to decline," October 26, 2016
- ↑ Center for Immigration Studies, "Birthright Citizenship in the United States: A Global Comparison," accessed December 14, 2016
- ↑ 12.0 12.1 The Federalist, "Why Birthright Citizenship Is Good For America," August 1, 2016
- ↑ 13.0 13.1 Mother Jones, "This Is What Would Happen if We Repealed Birthright Citizenship," August 26, 2015
- ↑ White House, "Protecting The Meaning And Value Of American Citizenship," January 20, 2025
- ↑ Cooper, Phillip. (2014). By Order of the President: The Use and Abuse of Executive Direct Action. Lawrence, KS: University Press of Kansas. (pgs. 21-22)
- ↑ USA Today, "Presidential memoranda vs. executive orders. What's the difference?" January 24, 2017
- ↑ Supreme Court of the United States, "Application for a partial stay of the injunction issued by the United States District Court for the Western District of Washington", April 17, 2025
- ↑ Supreme Court of the United States, "Trump v. CASA, Inc.", June 20, 2025
