Birthright Citizenship
Birthright citizenship is close to home for me
With the recent Supreme Court decision related to birthright citizenship, I was reminded of my own family’s story. My parents are both immigrants from Ireland. My dad became a U.S. citizen about a year before I was born, and my mom about five years after I was born. I assume my mom was in the U.S. legally when I was born. But this story is not about me, but about my maternal uncle, Pete McSharry.
My mom’s dad had tuberculosis and traveled to the U.S. for treatment, as a medical tourist. While in the U.S., my grandmother gave birth to Pete. Soon after his birth, the family returned to Ireland, where my uncle Pete grew up.
When Pete turned 18, due to his birthright citizenship, he was drafted by the U.S. military. He could have easily avoided the draft by staying in Ireland, but I sense that he was eager for the adventure and returned to the U.S. to serve in the U.S. Army. Once he was honorably discharged, he decided to stay in the U.S., where he remained for the rest of his life. I assume my story and my uncle’s story are familiar immigrant stories.
The concept of birthright citizenship is that a person born within a country's territory is automatically granted citizenship, regardless of their parents' nationality or legal status. This principle is also known as jus soli, which is a Latin term meaning "right of the soil." In the U.S., birthright citizenship is part of the Constitution in the 14th Amendment, which 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." It has been challenged, but reinforced by the Supreme Court in United States v. Wong Kim Ark (1898), which affirmed that children born in the U.S. to immigrant parents are citizens regardless of their parents' immigration status.
There are exceptions to birthright citizenship: children of foreign diplomats and children born to soldiers of a foreign military during a hostile occupation are excluded from birthright citizenship.
On January 20, 2025, Trump departed from over a century of precedent with an executive order (Executive Order 14160: Protecting the Meaning and Value of American Citizenship) which denies U.S. citizenship to children born in the United States to mothers who are unlawfully present or have a temporary lawful status and where the father is not a U.S. citizen or lawful permanent resident.
If this executive order had existed when I was born, I would have been a citizen because my dad was a citizen and because my mom (I assume) had permanent residency, AKA a green card, at the time of my birth. If this executive order had existed when my uncle Pete was born, he would not have been a U.S. citizen. I will never know if he would have still legally immigrated to the U.S. like his little sister (my mom).
Immigrant rights groups and some states immediately challenged the executive order. Three federal district court judges issued nationwide injunctions to block the order, deeming it unconstitutional. However, on June 27, 2025, the Supreme Court ruled 6-3 in favor of the Trump administration, limiting the power of federal judges to issue nationwide injunctions and allowing the executive order to take effect in some states, potentially. The Supreme Court's ruling did not address the constitutionality of the birthright citizenship order itself, but it allowed for the possibility that the policy could take effect in certain states. Specifically, the order could take effect in the 28 states that did not challenge the executive order, raising concerns about potential disparities in citizenship status depending on the state in which the child was born.
I assume that immigrant rights groups and some of the states will continue to challenge the executive order. Most legal scholars believe that a president cannot end birthright citizenship through an executive order, as the 14th Amendment affords it protection. Ultimately, the Supreme Court will need to weigh in on the constitutionality of the executive order. In the meantime, there will be bureaucratic chaos and hurdles for undocumented and temporary immigrant families, with difficulties obtaining vital documents like birth certificates, Social Security cards, and passports.
Trump and his team have been consistent in referring to the recent wave of immigration as an invasion. I assume this was a setup to be able to argue that children of undocumented immigrants should not receive birthright citizenship, as those children were born during a hostile occupation of the U.S. by the undocumented immigrants (a permitted exception).
An additional challenge caused by the exectuive order for immigrants without permanent status or citizenship is that one day, you are legal (for example you entered the U.S. on a parole programs like Biden had for Cubans, Haitians, Nicaraguans, and Venezuelans), and one day you are not (for example Trump’s recent elimination of parole programs for Cubans, Haitians, Nicaraguans, and Venezuelans).
Birthright citizenship is unique to the Americas; most of the rest of the world does not recognize it.
I believe that questioning birthright citizenship is a legitimate question, but I think that the only way to change the rules would be to amend the Constitution. However, the current Supreme Court is unpredictable, and its recent decision limiting the power of federal judges to issue nationwide injunctions on executive orders suggests that it may view the issue differently than I and most legal experts do.
The legal arguments for restricting birthright citizenship are:
The phrase “Subject to the Jurisdiction Thereof" in the 14th Amendment should not extend to those who are unlawfully or temporarily present in the U.S., such as undocumented immigrants or those on temporary visas. This argument posits that such individuals are not fully subject to the jurisdiction of the U.S. in the same way as citizens or permanent residents.
Some legal scholars argue that the original purpose of the 14th Amendment, passed in the aftermath of the Civil War, was to grant citizenship to formerly enslaved individuals. Those legal scholars suggest that the Amendment's framers may not have intended to automatically grant citizenship to children whose parents did not enter the country legally with the intent of becoming lawful members of society.
It is argued that the current interpretation of birthright citizenship, which grants citizenship to children born in the U.S. regardless of their parents' immigration status, incentivizes illegal immigration or "birth tourism."
I have no predictions on how this will ultimately be resolved.