Born to be Free? Examining Birthright Citizenship.

By Julie Farnam

Will babies born in the United States be citizens?

Recently, the Supreme Court agreed to consolidate three cases related to birthright citizenship. But what is birthright citizenship and can that right be taken away?

There has been a lot of discussion on the topic and an Executive Order issued earlier this year seeks to restrict it, but there’s also a lot of misunderstanding about birthright citizenship. 

While many, me included, think Trump’s plan is unconstitutional, we’ll see what’ll happen when the Supreme Court hears the merits of this case on May 15th.  This is, after all, a court that has undermined their own credibility by disregarding precedent, and some would argue, by placing political agendas over the application of justice.   

On January 20, 2025—the first day of Trump’s second term—Trump issued Executive Order 14160 which limited birthright citizenship to some individuals born in the United States. 

The EO takes issue with a portion of the 14th Amendment to the Constitution.  The 14th Amendment states in pertinent part “[a]ll 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.”   Trump argues that the “subject to the jurisdiction” part doesn’t apply to everyone.

More specifically, he is saying 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” because those children would not be subject to the jurisdiction of the United States.

It’s worth mentioning here that all those social media posts saying Barron Trump would not be a U.S. citizen under this EO because Melania was not a citizen are not accurate based on the language in the EO.  By all accounts, Melania was in the United States legally, albeit likely on a nonimmigrant (i.e., temporary) visa initially and Trump is a U.S. citizen.  To be clear, I am not endorsing the EO by pointing out the errors in this argument.  We can criticize Trump, or anyone else for that matter, but criticize with facts, not fictions. 

This is not the first time in U.S. history the 14th amendment has been challenge, but before we discuss that, let’s get some foundational knowledge.

You can get citizenship at birth in two main ways: by being born in a country (jus soli, Latin for “right of the soil”) and through family (jus sanguinis, Latin for “right of the blood”).  For purposes of this discussion, we are only covering jus soli and aren’t talking about derivative or acquired citizenship or citizenship through naturalization, which are something different.

Like many of our laws and our constitution, the U.S.’s jus soli principle is based in English common law.  Lots of things like the limitations on the government, the sovereignty of Congress, the promotion of individual rights, the separation of powers, and many other provisions in our Constitution have roots in English law.  When our constitution was written, the writers were heavily influenced by their knowledge and experience with English law.  That’s why we have things in the constitution like the prohibition on cruel and unusual punishment.  The English would do all sorts of harsh and weird things as forms of punishment like tearing out people’s tongues or using knee splitters.  The writers of the constitution didn’t like that and put in the 8th Amendment of our Constitution that ‘no cruel and unusual punishment’ clause.

With regards to birthright citizenship, there are three exceptions to this in U.S. law today.  The most common is children born in the United States to diplomats because diplomats are not subject to U.S. jurisdiction.  This is why embassies are considered territory of that country and that’s why diplomatic immunity exists.  Diplomats and their children born in the United States are not subject to the jurisdiction of this country and that’s why those children are not considered U.S. citizens even if they are born here.    

The other two, lesser-known exceptions to birthright citizenship are children born to enemy occupiers and children born on a foreign warship in U.S. waters (because, like diplomats, the United States does not have jurisdiction over those ships). 

The other sort-of exception is with some U.S. territories like Micronesia and American Samoa. Those people are considered U.S. nationals, not citizens. U.S. nationals owe allegiance to the United States and receive constitutional protections, but are not afforded the same rights and privileges of U.S. citizens (like the right to vote in national elections).  This is defined in Sections 101(a)(22) and 308 of the Immigration and Nationality Act.

Everyone else born in the United States, except for those listed above, are U.S. citizens under the 14th Amendment of the United States.

Now that we’ve covered the basics of jus soli, let’s look at how the 14th Amendment came to be and past challenges to birthright citizenship.  The cases Dred Scott v. Sandford (1857) and United States v. Wong Kim Ark (1898) are a big deal in this conversation.  In the Dred Scott case, the Supreme Court ruled that enslaved people, freed slaves, and even Black children whose ancestors were or had been slaves were not citizens (i.e., anyone of African ancestry) and were not entitled to protection under the constitution.  Aside from demonstrating our current Supreme Court isn’t the first Supreme Court to make horrible, unjust decisions, the outrage of this decision in 1857 was at least part of the impetus for creating the 14th Amendment.  The 14th Amendment was ratified in 1868. 

As an aside, the 14th Amendment also covers due process rights, something else Trump and his administration doesn’t particularly care for, but that’s a discussion for another time.   

With Wong Kim Ark, the Supreme Court ruled that children born to immigrant parents in the United States were citizens.  This is notable because immigrants from China at the time were forbidden from holding U.S. citizenship, so children born in the United States to Chinese parents, parents who could never become citizens under the law, were not considered U.S. citizens until the Supreme Court ruled that the 14th Amendment did indeed cover these children and children born in the United States to noncitizen parents were themselves U.S. citizens.

Now that we have that basic knowledge, let’s get back to Trump’s EO.  If children born in the United States to a parent who is not here lawfully or permanently are not subject to the jurisdiction of the United States, as Trump’s EO is asserting, that has far-reaching implications beyond citizenship.  Let’s pull on that string.  If those individuals are not U.S. citizens at birth because they aren’t subject to the jurisdiction of the United States, that also means they’d essentially have immunity for any crimes they commit in the United States, just like diplomats do.  Diplomatic immunity can be waived, but that is not an easy or quick process, as we saw with the case of Gueorgui Makharadze, a diplomat from the country of Georgia who killed a person while drunk driving in Washington, DC, in 1997.  I think the Trump administration would argue that they’d just deport those who commit crimes and who refuse to waive diplomatic immunity.  They can argue that, but doesn’t that run the very high likelihood of a miscarriage of justice?  If someone plowed down a child while driving recklessly (the U.S. asserted diplomatic immunity in a similar case involving an American diplomat), blew up a building, or committed any other crime, wouldn’t we want to see them prosecuted and imprisoned rather than simply deported?   Is that the tradeoff the Trump administration is willing to make? 

The other complicating factor is where would those criminals be deported to if they were born in the United States and don’t have citizenship elsewhere?  A country needs to issue travel documents (i.e., a passport) to someone before they can be deported, and a country must be willing to accept the deportee.  There are countries today who will not accept deportees and by law, the majority of those foreign nationals cannot be held in custody indefinitely as a matter of habeus corpus.  The New York Times and the Washington Post recently did stories on this topic.  In these situations where there is no place for the person to be deported to, most deportees are put on an Order of Supervision (or OSup if you want to sound like an immigration officer) and need to check in with Immigration and Customs Enforcement at regular intervals.   

The last point worth mentioning in this discussion is that most countries do not have unrestricted jus soli.  Like the United States, Canada and most of South America largely have unrestricted jus soli; however, most countries in the world favor jus sanguinis and require at least one parent to be a citizen or permanent resident of that country.