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TRUMP’S BIRTHRIGHT CITIZENSHIP ORDER WILL TEST THE SUPREME COURT  
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Matt Ford
January 22, 2025
The New Republic
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_ The president’s latest salvo against the Constitution shouldn’t
survive the judiciary’s scrutiny. But these days, you never know. _

President Donald Trump signs an executive order ending birthright
citizenship in the Oval Office of the White House in Washington, D.C.,
on January 20, 2025., Photo: Jim Watson/Agence France-Presse (AFP)

 

The president of the United States does not have the lawful power to
end birthright citizenship. That did not stop President Donald Trump
from trying to do just that in one of his first executive orders on
Inauguration Day. The order itself is strangely written—partly out
of necessity and partly out of ideology. If the Constitution’s words
still matter, it will fail in the federal courts.

The order, titled “Protecting the Meaning and Value of American
Citizenship,” seeks to redefine the Fourteenth Amendment. The
amendment’s language on citizenship is straightforward: “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 “subject to the jurisdiction”
exception is typically taken to mean the children of foreign
diplomats.

In the Trump administration’s telling, however, everyone’s been
getting it all wrong for the last 150 years. “The Fourteenth
Amendment has always excluded from birthright citizenship persons who
were born in the United States but not ‘subject to the jurisdiction
thereof,’” the order stated. “Consistent with this
understanding, the Congress has further specified through legislation
that ‘a person born in the United States, and subject to the
jurisdiction thereof’ is a national and citizen of the United States
at birth.” Accordingly, it laid out additional categories of
American-born citizens whom it hopes to exclude.

The first and most important thing to note about the order is that it
is not retroactive. Nobody currently living in the United States is
affected by it at this moment, no matter their parentage or lawful
presence. Instead, it says that it “shall apply only to persons who
are born within the United States after 30 days from the date of this
order.” In other words, the first children affected by it will be
born on or after February 19.

From there, the order says it applies to any child whose mother “was
unlawfully present in the United States” or “whose mother’s
presence in the United States was lawful but temporary,” so long as
the father is also neither a U.S. citizen nor someone with lawful
permanent status. In other words, a child born to at least one parent
with lawful permanent residence or U.S. citizenship would be
unaffected by its restrictions. (The emphasis on the mother’s
presence may be meant for cases where a father is not listed on birth
records.)

The overall intent appears to be to transform American citizenship law
from _jus soli_—a Latin term for when children acquire citizenship
from the soil on which they are born, so to speak—to a solely _jus
sanguinis_ system where citizenship is passed down solely by dint of
ancestry and blood. That would represent a sharp break with historical
practice and shift the U.S. toward the Old World’s approach to
nationality.

Trump and his allies have long complained about the children of
undocumented immigrants—that is, the children of people who did not
lawfully enter the United States. “Under Biden’s current policies,
even though these millions of illegal border crossers have entered the
country unlawfully, all of their future children will become automatic
U.S. citizens,” he complained
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a video post on Truth Social last year. The exact size of this
population is unknown; some immigration policy groups estimated
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upward of 4.4 million children in the U.S. lived with at least one
undocumented parent in 2018.

But the order’s terms go well beyond that group to cover any child
born to parents who did not have green cards or U.S. citizenship at
the time, even if they were otherwise lawfully present in the country.
A child born to two H-1B visa recipients in Silicon Valley, or to two
student-visa recipients at Ohio State University, or to two H-2A
farmworkers in a Florida citrus farm would be affected by the order.
It would also apply to children born to parents who are in the country
under the Temporary Protected Status program. Since the number of
legal immigrants is much larger than the number of undocumented ones,
that could amount to tens of thousands of births each year.

A hypothetical example is illustrative here. If the executive order
applied retroactively, it would almost certainly cover former Vice
President Kamala Harris. She was born in 1964 to parents who were
lawfully residing in California at the time but were not U.S.
citizens. Harris’s India-born mother was in the country on a student
visa and did not obtain a green card until 1968
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Her Jamaica-born father arrived in 1961 and almost certainly did not
have a green card by the time she was born. (He eventually obtained
one and became a naturalized U.S. citizen in 2015.)

The order may not have been crafted with Harris in mind. (If it had
been, it would apply retroactively.) It also can’t be ruled out
after some of Trump’s top legal allies, including January 6
mastermind John Eastman, previously argued that Harris was not a
birthright citizen and was thus ineligible for the presidency. Either
way, it underscores how the order can cover people who have never
known any life other than within the United States and who are
culturally and socially woven into the fabric of American life.

So what are the practical effects? This is where things get murky. The
Trump administration is somewhat limited in how it can target people
without birthright citizenship. Birth certificates and other vital
records are generally issued by state and local governments, not the
federal government. (There are rare exceptions that aren’t relevant
here.) And while the administration can naturalize new citizens on its
own through U.S. Citizenship and Immigration Services, neither the
executive branch nor Congress can denaturalize anyone against their
will without a court order.

As a result, the executive order itself amounts to more of a willful
blindness to one’s citizenship status than an outright revocation of
it. It says that “no department or agency of the United States
government shall issue documents recognizing United States
citizenship, or accept documents issued by state, local, or other
governments or authorities purporting to recognize United States
citizenship” from anyone covered by its terms.

The shall-issue provision’s impact is strange because the federal
government does not typically issue documents “recognizing United
States citizenship” to those covered by the order. It does not cover
citizenship applicants who complete the USCIS naturalization process,
for example, since they have lawful permanent status. Nor would it
affect those who complete a N-600 form for a certificate of
citizenship since that option is only available to the children of
U.S. citizens born overseas.

But the accepting-documents provision carries more weight, though a
lot will depend on how far the Trump administration is willing to go
to enforce it. Federal agencies check a person’s citizenship for a
variety of reasons. The most obvious example is for employment: Every
business in the country is required to fill out I-9 forms for new
hires. But no one covered by this executive order should be getting a
job anywhere for at least 15 or 16 years. Children affected by the
order could still be caught up by it in other ways: It could make it
difficult or perhaps impossible for them to obtain a U.S. passport,
among other government benefits.

The good news is that the Fourteenth Amendment forbids all of this.
Some constitutional provisions are written in broad terms and can be
interpreted multiple ways. The Fourteenth Amendment is not one of
them. The amendment’s drafters made clear that it meant the
citizenship language to be as broad as possible to overturn Dred Scott
v. Sandford and to forestall ex-Confederate states’ efforts to deny
citizenship to Black Americans. And the Supreme Court itself has held
since the Wong Kim Ark case in 1898 that it applies to any
non-diplomat foreign nationals within American borders.

The bad news is that the Trump administration appears to believe that
the courts will simply reinterpret the Fourteenth Amendment in its
favor. (I would not be surprised if this is the real reason why it
doesn’t apply retroactively, for example.) Here is where describing
“the law” and “the Constitution” falls apart. If the text,
original meaning, and precedent still matter, Trump should suffer a
9–0 defeat at the Supreme Court when this order reaches them. That
day will likely come soon since it is already facing multiple
challenges from 18 Democratic-led states, from the ACLU and other
civil rights groups, and from others.

I do not have a high opinion of the justices these days, nor am I
particularly confident in their ability to correctly read the
Constitution. These are the same nine justices who gutted the
Fourteenth Amendment’s disqualification clause last spring to avoid
applying it to Trump; this is the same conservative majority that
conjured “presidential immunity” out of thin air last summer to
shield him from a federal criminal trial. If Trump had issued this
executive order after his first inauguration in 2017, I would already
be writing its obituary. But it is not 2017 anymore.

The good news is that the Fourteenth Amendment forbids all of this.
Some constitutional provisions are written in broad terms and can be
interpreted multiple ways. The Fourteenth Amendment is not one of
them. The amendment’s drafters made clear that it meant the
citizenship language to be as broad as possible to overturn _Dred
Scott v. Sandford_ and to forestall ex-Confederate states’ efforts
to deny citizenship to Black Americans. And the Supreme Court itself
has held since the _Wong Kim Ark_ case in 1898 that it applies to
any non-diplomat foreign nationals within American borders.

The bad news is that the Trump administration appears to believe that
the courts will simply reinterpret the Fourteenth Amendment in its
favor. (I would not be surprised if this is the real reason why it
doesn’t apply retroactively, for example.) Here is where describing
“the law” and “the Constitution” falls apart. If the text,
original meaning, and precedent still matter, Trump should suffer a
9–0 defeat at the Supreme Court when this order reaches them. That
day will likely come soon since it is already facing multiple
challenges from 18 Democratic-led states, from the ACLU and other
civil rights groups, and from others.

I do not have a high opinion of the justices these days, nor am I
particularly confident in their ability to correctly read the
Constitution. These are the same nine justices who gutted the
Fourteenth Amendment’s disqualification clause last spring to avoid
applying it to Trump; this is the same conservative majority that
conjured “presidential immunity” out of thin air last summer to
shield him from a federal criminal trial. If Trump had issued this
executive order after his first inauguration in 2017, I would already
be writing its obituary. But it is not 2017 anymore.

_[MATT FORD is a staff writer at The New Republic.
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]_
 

* birthright citizenship
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* citizenship
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* 14th amendment
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* Fourteenth Amendment
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* Constitution
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* Supreme Court
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* SCOTUS
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* Donald Trump
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* Trump 2.0
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* Resistance 2.0
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* MAGA
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* Executive powers
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* Immigrants
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* slavery
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* Racism
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