On January 20, 2025, President Donald Trump signed Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship,” aiming to narrow the application of birthright citizenship in the United States. The order seeks to reinterpret the 14th Amendment’s Citizenship Clause, which traditionally grants citizenship to nearly all individuals born on U.S. soil, regardless of race, color, ancestry or the immigration status of their parents.
The Citizenship Clause of the 14th Amendment states the following: “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 clause was ratified in 1869, overturning the infamous Dred Scott decision that denied citizenship, and with it, core legal and civil rights protections, to Black Americans. Almost thirty years later, in the landmark case United States v. Wong Kim Ark, the U.S. Supreme Court confirmed the principle of jus soli, birthplace-based citizenship, to grant U.S. citizenship to anyone born in U.S. territory, irrespective of their parent’s immigration status.
The core holding of United States v. Wong Kim Ark that individuals born in the United States are U.S. citizens regardless of their parents’ immigration status has over the last century mostly remained unchallenged. Nonetheless, the administration’s order argues that the phrase “and subject to the jurisdiction thereof” does not apply to children of those who are undocumented or who are on temporary visas. It seeks to limit citizenship and the more-than-a-century-old understanding of the 14th Amendment, arguing that the current interpretation of birthright citizenship incentivizes illegal immigration and “birth tourism.” Many legal scholars have challenged the legality of this executive order, arguing that the President does not have the authority to change U.S. citizenship rules.
Specifically, the order proposes that children born in the United States would not automatically receive citizenship if their parents are either unlawfully, or only temporarily, in the United States. The order purports to limit citizenship to U.S.-born children if:
- Their mother was unlawfully present in the United States, and their father was neither a U.S. citizen nor a lawful permanent resident at the time of birth.
- Their mother was in the United States on a temporary status (such as a student, work or tourist visa), and their father was neither a U.S. citizen nor a lawful permanent resident at the time of birth.
The order also states that these provisions apply to individuals born 30 days or more after the date of the order. Therefore, should the order go into effect, it would impact individuals born on and after February 19, 2025.
Legal Challenges and Implications of Limiting Birthright Citizenship
Since the announcement of executive order 14160, the order has faced numerous legal challenges on the grounds that it is unconstitutional. To date, multiple lawsuits have been filed, and, until now, federal judges have issued nationwide preliminary injunctions blocking the enforcement of the order, mostly citing conflicts with the 14th Amendment and established Supreme Court precedent. In response, the administration has appealed to the U.S. Supreme Court, seeking to lift these injunctions and allow the order to take effect.
Should the Supreme Court hold that the order is constitutional and if the executive order were to be implemented, it would mark a significant shift in U.S. citizenship policy, potentially rendering thousands of U.S.-born children stateless, or forcing them into complex legal battles to establish their nationality. This change could lead to increased marginalization of certain communities and place additional burdens on the immigration and legal systems. Moreover, the Supreme Court’s decision on birthright citizenship will not only carry significant implications for the future of birthright citizenship in the United States; it is also posed to alter the longstanding interpretation of the 14th Amendment, which would set a precedent for further modifications to constitutional rights.
Other Pathways to U.S. Citizenship: Derived and Acquired Citizenship
Beyond birthright citizenship, individuals can obtain U.S. citizenship through other avenues, notably derived and acquired citizenship. Acquired citizenship applies to individuals born abroad to at least one U.S. citizen parent. The specific requirements depend on factors such as the parents’ marital status and the duration of the U.S. citizen parent’s physical presence in the United States prior to the child’s birth. For example, a child born overseas may acquire U.S. citizenship at birth if their U.S. citizen parent meets certain residency requirements.
Derived citizenship occurs when a child automatically becomes a U.S. citizen after birth, typically through the naturalization of their parent(s). Under the Child Citizenship Act (CCA) of 2000, a child under 18 years old automatically acquires U.S. citizenship if they are a lawful permanent resident, reside in the United States in the legal and physical custody of their U.S. citizen parent, and at least one parent is a U.S. citizen by birth or naturalization.
Naturalization
Aside from derived and acquired citizenship, individuals can become citizens through the naturalization process. In general, individuals may apply for naturalization when they meet all of the requirements below:
- 18 years of age or older.
- A green card holder for at least four years and 9 months* immediately preceding the time of filing the citizenship application. (*Those who are married to and residing with a U.S. citizen spouse are eligible to apply after three years of continuous residence as a lawful permanent resident.)
- Live within their current state, or within the same USCIS district, for at least three months prior to filing the application.
- Have continuously resided in the United States as a permanent resident for five or more years* immediately preceding the time of filing the citizenship application.
*Absences of more than six months, but less than one year, may disrupt an applicant’s continuous residence unless the applicant can prove otherwise.
*Absences more than one year or more may disrupt an applicant’s continuous residence.
*Those who are married to and residing with a U.S. citizen spouse must only show three years of continuous residence in the United States.
- Have been physically present in the United States for 30 or more months out of the last 60 months before filing the petition.
- Able to read, write and speak English unless eligible for a waiver.
- Have basic knowledge and understanding of U.S. history and government. There is a 100-question database of civics questions that applicants for citizenship are expected to know, as they are required to answer six of ten selected questions correctly during the naturalization interview process.
- Must be a “person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.”
For individuals navigating the complexities of U.S. immigration and citizenship laws, it is important to understand the principles of derived and acquired citizenship and naturalization, especially in light of potential legal and policy changes affecting birthright citizenship.
