Birthright Citizenship

What Is Birthright Citizenship

Birthright citizenship is the rule that a child born on U.S. soil is a U.S. citizen, no matter who the parents are or what their immigration status is. Lawyers call it jus soli, the right of soil. It is written into the first sentence of the 14th Amendment, and it is why a baby born in a hospital in Texas to parents from anywhere on earth is an American at birth.

The Citizenship Clause says it in one line, ratified July 9, 1868.

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.

14th Amendment, Section 1

What “Subject to the Jurisdiction” Means

The whole fight turns on six words in the middle of the Citizenship Clause. The amendment grants citizenship to people “subject to the jurisdiction” of the United States, and that phrase is what the current challenge tries to redefine. In plain terms it means a person who is completely subject to U.S. law and owes it direct allegiance, which describes almost everyone physically here.

The exceptions have always been narrow. Children of foreign diplomats with full immunity are not citizens at birth, because their parents answer to a foreign government, not U.S. courts. The other historical exception, children born to a hostile occupying army, is theoretical. Under USCIS policy and Wong Kim Ark, nearly every other child born on U.S. soil is a citizen, regardless of the parents’ status.

Birthright citizenship is one of two ways countries hand down citizenship, and the difference explains why the U.S. rule is unusual.

The U.S. uses both. A child born here is a citizen by jus soli, and a child born abroad to a U.S. citizen can be a citizen by jus sanguinis. The challenge in court does not touch the second path. It tries to shrink the first.

From Dred Scott to Wong Kim Ark

Birthright citizenship was written to overturn one of the worst rulings in Supreme Court history, and the precedent behind it is more than a century old. The story starts with the 1857 Dred Scott decision, which denied citizenship to Black Americans. The 1868 amendment reversed it. The 1884 Elk v. Wilkins case narrowed it for Native Americans, but the 1898 Wong Kim Ark ruling is still the controlling law today. The 1924 Indian Citizenship Act finally extended citizenship to Native Americans.

1857: In Dred Scott v. Sandford the Supreme Court ruled that Black Americans, free or enslaved, could not be citizens. The decision is the reason the Citizenship Clause exists.

1868: A Republican Congress wrote the 14th Amendment to overrule Dred Scott and guarantee citizenship to formerly enslaved people. Senator Jacob Howard, the floor manager, called the clause “declaratory of… the law of the land already” on May 23, 1866. The 1866 Civil Rights Act that preceded it used an explicit carve-out, “excluding Indians not taxed” and “not subject to any foreign power,” which shows the drafters knew how to exclude groups and chose not to exclude immigrant children.

1884: In Elk v. Wilkins the Court held 7-2 that Native Americans under tribal jurisdiction were not birthright citizens, because they owed allegiance to their tribes.

1898: In United States v. Wong Kim Ark the Court ruled 6-2 that a San Francisco-born cook, the son of Chinese immigrants, was a citizen by birth. He had been detained for about six months in 1895 when he returned from a trip to China. That ruling has been the controlling precedent for 125 years and has never been overruled.

1924: The Indian Citizenship Act, signed by President Coolidge on June 2, 1924, granted citizenship to about 125,000 Native Americans, though it did not by itself guarantee voting rights.

The 2025-2026 Fight Over the Order

The current fight began the day of the 2025 inauguration and is now before the Supreme Court. President Trump signed Executive Order 14160 on January 20, 2025, with a stated effective date of February 19, 2025. It directs federal agencies to deny citizenship documents to U.S.-born children when the mother was undocumented or on a temporary visa and the father was not a citizen or lawful permanent resident.

Courts blocked the order almost immediately, and they have kept it blocked. Judge Deborah Boardman in Maryland enjoined it on February 5, 2025, followed by courts in New Hampshire and a Massachusetts ruling for a 19-state coalition. In July 2025 the Ninth Circuit held the order “invalid because it contradicts the plain language of the Fourteenth Amendment” and Wong Kim Ark. No U.S.-born child has been denied citizenship under it.

Two Supreme Court cases get confused, and the difference matters. The first did not touch the merits at all.

Trump v. CASA, decided June 27, 2025, limited the power of federal courts to issue nationwide injunctions. It did not rule on birthright citizenship or whether the order is constitutional. The merits case is Trump v. Barbara, argued April 1, 2026, where Solicitor General John Sauer argued the clause turns on “domicile” and the ACLU’s Cecillia Wang argued Wong Kim Ark controls. A decision is expected around the end of June 2026 and has not been issued. Oral-argument coverage is not a ruling, so the outcome remains open.

What Ending Birthright Citizenship Would Do

Ending birthright citizenship would reach far more people than the order’s text suggests, and researchers have measured the scale. The rule covers hundreds of thousands of babies a year and millions of children already born, and the projected effects compound across generations. The numbers below describe who is affected today.

Those are real children in schools and neighborhoods now, not a forecast. Olga Urbina, a Baltimore mother, has brought her infant son Ares to the Supreme Court to put a face on the case; under the order he would have been denied citizenship at birth (NPR). The forecast comes next, and the Migration Policy Institute and Penn State researchers are careful to label it as a projection, not a certainty.

If birthright citizenship ended, researchers project the unauthorized population would grow by 2.7 million by 2045 and 5.4 million by 2075, including 1.7 million people born to U.S.-born parents who themselves would lack status.

The deeper risk is statelessness, and that warning comes from scholars and the courts, not from us. The 1961 UN Convention treats birthright citizenship as a key safeguard against statelessness, and the UNHCR ranks it among the strongest protections a country can offer. In Plyler v. Doe in 1982 the Supreme Court warned against creating a permanent underclass of people born here with no path to belonging. Legal scholars writing in the Washington University Law Review argue that denying citizenship at birth would do exactly that.

How the Rest of the World Handles It

The U.S. approach is common in the Americas and rare everywhere else. About 30 countries grant unrestricted citizenship by birth, and nearly all of them are in the Western Hemisphere. Among major developed democracies, only the United States and Canada still do it without conditions. Source counts vary between 30 and 33 depending on how partial systems are counted.

Several developed nations ended unconditional birthright citizenship in recent decades, and how they did it is the part that matters for the U.S. debate. None used an executive order. Each changed the law through legislation or a public vote.

The pattern across these countries is consistent. Each moved from jus soli to a conditional rule that ties a child’s citizenship to a parent’s legal status, and each did it openly through the lawmaking process. Most of the world, across Europe, Asia, and Africa, uses jus sanguinis and never had unrestricted birthright citizenship to end.

Can a President End Birthright Citizenship

A president cannot end birthright citizenship by order, and a statute alone cannot do it either. The rule is in the Constitution, so changing it requires the process for changing the Constitution. That is the single most important fact in this whole debate, and the courts have applied it consistently.

The constitutional argument is settled in the courts, but there is a serious legal debate worth presenting fairly. One side argues the clause does not cover children of undocumented immigrants, and this view has named, credentialed proponents. John Eastman and Edward Erler of the Claremont Institute argue that “subject to the jurisdiction” requires full political allegiance, which they say temporary or undocumented parents lack. Scholars including Randy Barnett, Kurt Lash, and Ilan Wurman have offered partial support, and the idea traces to Peter Schuck and Rogers Smith’s 1985 book Citizenship Without Consent.

The mainstream consensus runs the other way and crosses ideological lines. Even John Yoo, an originalist, has made what he calls the originalist case for birthright citizenship, and scholars including Akhil Amar and Michael Ramsey agree the clause covers these children. Their rebuttal rests on three things the revisionist reading has to explain away. The 1866 Civil Rights Act used an explicit carve-out the amendment dropped, Wong Kim Ark squarely addressed a child of immigrants, and 125 years of practice have treated the rule as settled.

The courts have not split the difference. The Ninth Circuit and every court to rule on Executive Order 14160 have rejected it, and the Supreme Court has not yet decided the merits. The revisionist argument is being made in good faith by serious people, and it runs against Wong Kim Ark, the text’s own history, and every 2025-2026 ruling so far.

Frequently asked questions

Has the Supreme Court decided whether the order is constitutional? Not yet. The Court heard the merits case, Trump v. Barbara, on April 1, 2026, and a decision is expected around the end of June 2026. As of June 20, 2026 no ruling has been issued. Anyone describing an outcome before the decision is reading oral-argument coverage, not a ruling.

Is Trump v. CASA the case that decides birthright citizenship? No. Trump v. CASA, decided in June 2025, limited the power of courts to issue nationwide injunctions. It did not rule on whether the order is constitutional. The merits case is Trump v. Barbara, which is separate and still pending.

Are U.S.-born children still getting citizenship right now? Yes. As of June 2026 the order is blocked everywhere and has never been enforced. Every child born on U.S. soil still receives citizenship, a Social Security number, and a passport.

Could Congress end birthright citizenship by passing a law? No. Because the rule is in the 14th Amendment, an ordinary statute cannot override it, and neither can an executive order. The only way to change it is a constitutional amendment, which needs two-thirds of both chambers of Congress and ratification by three-fourths of the states.

What you can do

1. Tell your members of Congress to defend the 14th Amendment’s Citizenship Clause. Ask them by name to publicly oppose any executive order, regulation, or statute that narrows citizenship by birth. Use the letter and call script below.

2. Ask them to reject any statute that tries to redefine “subject to the jurisdiction.” A bill cannot override the Constitution, and proposals to reinterpret the clause by statute would invite years of litigation. Ask your representatives to oppose any such bill and to say so on the record.

3. Support the legal challenge. The ACLU’s case page for Barbara v. Trump tracks the litigation now at the Supreme Court, and the NAACP Legal Defense Fund explains what the law currently protects.

4. Correct the record with the text and the precedent. When someone claims a president can end birthright citizenship by order, the answer is Wong Kim Ark, the 1866 Act’s own carve-out language, and the fact that every court has blocked the 2025 order. The comparison tables above are built to be shared.

5. Write your representative about defending birthright citizenship. Use the letter below and ask for a clear position.