Is Trump’s order on birthright citizenship constitutional? | Explained

President Donald Trump signs an executive order on birthright citizenship in the Oval Office of the White House, on January 20.
| Photo Credit: AP

The story so far: On January 23, U.S. District judge John Coughenour in Seattle blocked President Trump’s executive order attempting to curb ‘birthright citizenship’.

What is birthright citizenship?

Birthright citizenship is a legal principle that grants automatic citizenship to individuals born within a country’s territory, regardless of their parents’ citizenship status. In the U.S., this right is enshrined in the 14th amendment of the Constitution, ratified in 1868, which states: “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 14th amendment was the hard-won result of a prolonged legal and political struggle to abolish slavery and advance racial equality. It directly overturned the infamous Dred Scott versus Sandford (1857) judgment, which had denied citizenship to African Americans.

Alongside the 13th amendment (abolishing slavery) and the 15th amendment (granting voting rights irrespective of race), the 14th amendment became a cornerstone of the Reconstruction era. It aimed to dismantle the legal framework of slavery and create a more inclusive society, redefining citizenship in a way that challenged the racial hierarchy of the time.

Nations worldwide largely determine citizenship through two principles — “jus soli” (right of the soil), which grants citizenship by birthplace, or “jus sanguinis” (right of blood), which grants it by familial descent. The U.S. employs both. The jus soli principle was reinforced in United States versus Wong Kim Ark (1898), which upheld the citizenship of a man born in California to Chinese parents despite the 1882 Chinese Exclusion Act barring their naturalisation. This ruling solidified birth in the U.S. as the primary basis for citizenship, irrespective of parental status.

Contrary to claims that the U.S. is the only country with birthright citizenship, 2022 data from the Global Citizenship Observatory shows that 60 countries have provisions for jus soli in their legal codes or constitutions.

What does Trump’s order say?

Trump’s executive order reinterprets the 14th amendment, arguing that birthright citizenship excludes persons born in the U.S. but not “subject to the jurisdiction thereof”. The administration interprets this to mean that children born in the U.S. to undocumented parents or parents with temporary legal status, such as tourists or foreign students, are not automatically granted citizenship unless at least one parent is a U.S. citizen or lawful permanent resident.

The administration’s interpretation hinges on the phrase “subject to the jurisdiction thereof,” claiming it excludes children of non-citizens. However, this contradicts historical and legal precedent. The SC clarified the meaning of this phrase in Wong Kim Ark (1898), ruling that it applies to ‘traditional exceptions’, such as children of foreign diplomats (who have diplomatic immunity) or those born on foreign warships, visiting a U.S. port – groups not subject to U.S. jurisdiction. In contrast, undocumented immigrants and temporary visa holders are subject to U.S. jurisdiction. They live, work, and participate in society, and are bound by U.S. laws.

The order also narrowly defines “mother” and “father” as “female biological progenitor” and “male biological progenitor,” excluding transgender and queer parents from its scope. The administration justifies the order as necessary, arguing that birthright citizenship encourages ‘unauthorised immigration’, draining ‘public resources’.

How will it impact people?

If implemented, the order would impact millions, including children born to undocumented immigrants, temporary visa holders, and mixed-status families. Notably, children born to Indian nationals on temporary work visas, like the H-1B or those awaiting Green Cards, would no longer automatically receive U.S. citizenship.

Pew Research Centre data (2022) indicates that 1.3 million U.S.-born adults living with their parents were born to undocumented immigrants. Without citizenship, these individuals, and potentially many more children in the future, would lose access to vital government programs like Medicaid, the Child Health Insurance Program (CHIP) and the Supplemental Nutrition Assistance Program (SNAP), leaving many families without essential healthcare and nutrition support.

Why did the judge block the order?

U.S. District judge John Coughenour issued a temporary restraining order halting the enforcement of the executive order, nationwide. He described the order as “blatantly unconstitutional”, remarking, “I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is”.

During a hearing in Seattle, Judge Coughenour questioned Justice Department attorney Brett Shumate, expressing his disbelief saying “Frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles my mind”. The ruling came in response to a legal challenge brought forth by four States.

President Trump could also pursue a ‘constitutional amendment’ to revise the law. According to Article V of the U.S. Constitution, an amendment can be proposed by two-thirds of both houses of Congress or two-thirds of the States and must then be ratified by three-fourths of the States. Meanwhile, other legal challenges are underway, signalling that the final resolution may ultimately rest with the U.S. Supreme Court.

Kartikey Singh is a final year student at RGNUL, Patiala, Punjab.