“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”

On January 20, 2025, Donald Trump was sworn in as President of the United States for the second time. Within hours, he signed an executive order attempting to deny United States citizenship to the future children of many immigrants.

The United States is one of several countries that grants citizenship to those born here. There is a narrow exception for children born to parents who are not “subject to the jurisdiction” of the United States. This might be, for example, certain diplomats or a foreign soldier attacking the United States. Outside of this very narrow jurisdictional exception, “all persons” born in the United States are United States citizens.

This concept of citizenship based on birth in the United States has been cemented into U.S. law since the 1800s. In the second half of that century, the country was recovering from its Civil War. Three of the most important amendments to the United States Constitution were passed in that era – the Thirteenth, Fourteenth, and Fifteenth Amendments. Among other things, these amendments ended slavery (except as punishment for a crime); ordered states to equally protect the rights of people within their governance; and eliminated the use of race or former enslavement status as a basis to deny voting rights to citizens. Additionally, the Fourteenth Amendment made it clear that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”

Shortly after the Fourteenth Amendment was added to our country’s foundational legal code, U.S. officials attempted to deny the rights of citizenship to a man named Wong Kim Ark who was born in the United States to parents who were Chinese citizens. The United States Supreme Court upheld the interpretation of the Fourteenth Amendment that affirms that children of non-diplomats/non-foreign combatants who are born in the United States are citizens, regardless of their parents’ immigration status. This has been part of the United States law for more than 150 years, and it has been a crucial protection against the racism (e.g., lawful enslavement of persons based on race) and xenophobia (e.g., “Chinese Exclusion Act”) that have plagued our legal system and denied protections to persons based on color or national origin. Additionally, while the Fourteenth Amendment’s “jurisdiction” limitation was also initially interpreted to deny citizenship to certain indigenous tribe members, the Indian Citizenship Act was signed into law more than 100 years ago, protecting the birthright U.S. citizenship of children born into Native American tribes.

Donald Trump’s Executive Order as written seeks to deny the rights of U.S. citizenship to children born in this country who do not have a mother or father who is a citizen or lawful permanent resident. The Order defines a mother as the “immediate female biological progenitor”, and the father as “immediate male biological progenitor” of a child. This Order would not just affect the children of those who came unlawfully to the United States or who overstayed their permission to be in the country. Many people live in the United States for years or decades with lawful non-permanent statuses – for example, Temporary Protected Status has allowed thousands of people to have lawful status in the United States, some since the 1990s. Some people with certain categories of work visas might be allowed to live and work lawfully in the United States (and to bring their foreign-born spouses with them lawfully) while waiting years or decades to complete their green card process. Suddenly ending birthright citizenship would be devastating for these families, who could then have stateless children born without citizenship rights in any country, or who might have to worry about their children not sharing the same legal protections that their parents do in the United States. Additionally, the Order could create confusion or lead to people who are considered citizens under its terms to be denied protections if they could not prove their parents’ immigration status at the time they were born.

As written, the Order would NOT apply to people who have already been born, and it would NOT take away citizenship from those who already benefit from having been afforded U.S. citizenship by birth or naturalization. It also would NOT apply to children born who had at least one parent who was a U.S. citizen or U.S. lawful permanent resident. (So, for example, if an undocumented mother and a U.S. lawful permanent resident father had a child born in the United States, that child would still obtain citizenship.) Additionally, at this time, the Order is UNLIKELY to EVER have ANY legal effect. It was set to take effect on February 19, 2025. However, various states and organizations have sued to prevent the Executive Order from being applied. Already, multiple federal judges have ruled that the Executive Order is unlawful and cannot go forward. One of them has commented that the Order is “blatantly” unconstitutional. There is an indefinite pause preventing the Executive Order from taking place while the court cases go through the judicial process.

While there is a lot of uncertainty and fear that this administration has created in immigrant communities, the Fourteenth Amendment provides strong protections for citizenship, and the Executive Order attempting to limit birthright citizenship should continue to be struck down by the courts.

If you have a question about your immigration case or are interested in applying to become a naturalized U.S. citizen, please schedule a call with Minsky, McCormick & Hallagan at 312-427-6163.