Birthright Citizenship
Policy Brief

Following the abolition of slavery more than 150 years ago, Congress and the States adopted the Fourteenth Amendment as the centerpiece of an effort to guarantee equality for those born on U.S. soil, a matter critical to formerly enslaved people and their children in the aftermath of the Civil War. The Fourteenth Amendment also ensured that children born in the U.S. to parents who settled here from abroad would be recognized as citizens.

More than 125 years ago, in United States v. Wong Kim Ark, the Supreme Court affirmed a straightforward reading of the Fourteenth Amendment’s guarantee of citizenship to anyone born in the U.S., even if their parents are immigrants who are present without authorization. Congress codified that Supreme Court determination when it enacted the very same language in 8 U.S.C. 1401(a) — language, the Administration concedes, everyone would have understood at the time of the statute's enactment to foreclose the Executive Order.

Some anti-immigrant advocates have pushed a radical interpretation of the Amendment’s text—supported neither by history nor the plain text—positing that people born outside of the U.S. owe “allegiance” to another country, and therefore their children are not “subject to the jurisdiction” of the United States. This theory is wrong; it has never been adopted by the courts, finds very little support in the historical record, and would lead to illogical outcomes, including the conclusion that undocumented individuals and their children are therefore not subject to U.S. law.

As Justice Horace Gray wrote in Wong Kim Ark, “The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

This is an unconstitutional attempt to rewrite the 14th amendment by executive order. The meaning and scope of the 14th Amendment’s language has been assessed by courts at every level many times and this interpretation has been upheld consistently, including by every court that has assessed the merits of challenges to the executive order. Despite this, the Trump administration is asking the Supreme Court to overturn more than a century of constitutional, statutory, and legal precedent and to adopt a brand new, radical interpretation of the 14th Amendment, one that is directly contrary to the Court’s own previous decisions and to the interpretations that informed Congress’ drafting and passage of the 14th Amendment in the 1860s and additional lawmaking in the mid-1900s.

Beyond the clear violations of the Constitution and a century of precedent, a decision from the Court that allows any part of the President’s executive order to go into effect would be practically devastating for American communities and the economy. It would create extraordinary administrative burdens and complications at every level of government and for all U.S. citizens, sacrifice trillions in economic contributions, and create a permanent underclass of American families.

Since the EO was issued, multiple lawsuits have been filed against the administration, and every court to consider the policy’s merits has ruled it unconstitutional. In three cases—Trump v. State of Washington, Trump v. CASA, Trump v. State of New Jersey—the courts issued nationwide injunctions preventing the implementation of the EO anywhere in the country. The Trump administration appealed, leading the Supreme Court to invalidate the injunctions. However, the Supreme Court never considered the actual merits of the order, only the legality of the injunctions. After the Court's ruling, a new class-based lawsuit (Barbara v. Trump) was filed and won another court-ordered pause on the implementation of the order.

Now the Supreme Court is set to hear the case, consider the merits, and issue a decision about the legality of the executive order.

Millions of Americans have citizenship rooted in and protected by the Fourteenth Amendment. FWD.us estimates that there are at least 1.8 million U.S. citizen children with two married parents who are undocumented or have a temporary status, and as many as 4.8 million children who have at least one parent who is undocumented or in temporary status. While they would not be subject to this EO, they exemplify the far-reaching impacts of birthright citizenship continues on American families and communities.

A report by the National Academy of Sciences found that “[b]irthright citizenship is one of the most powerful mechanisms of formal political and civic inclusion in the United States; without it, the citizenship status of 37.1 million second-generation Americans living in the country (about 12% of the country’s population), and perhaps many millions more in the third and higher generations, would be up for debate.”

In general, children of immigrants are very successful in the U.S., surpassing their parents and matching or exceeding their peers with citizen parents in key markers of integration like education, earnings, and home ownership. Roughly 71% of adults who are beneficiaries of birthright citizenship are in the labor force and working.

Citizenship by birth has also been a major economic driver. Over the past 50 years, beneficiaries of birthright citizenship have contributed $1.5 trillion to the U.S. economy, and, if the policy remains in place, are projected to contribute an additional $6.5 trillion over the next 50 years.

On the other hand, eliminating birthright citizenship by birth would have devastating consequences, including increasing the population of unauthorized immigrants in the U.S. by 5.4 million over the next 50 years, with an average of 255,000 babies being born each year without legal status. This would also mean sacrificing up to $1 trillion in economic contributions and a loss of 400,000 potential college-educated workers.

Birthright citizenship is a hugely positive feature of American society that allows new generations to be completely welcomed as Americans, to more fully integrate into and participate in civic and community life across the United States. The promise of birthright citizenship embodies the core principles of the American promise and the American dream—it is a rejection of a caste or legacy system in favor of inclusion and equal opportunity.