Birthright Citizenship in the U.S.: What It Is and Why It’s Being Challenged

Birthright Citizenship in the U.S.: What It Is and Why It’s Being Challenged

Why Birthright Citizenship Exists in the U.S.

Birthright citizenship in the U.S. is enshrined in the 14th Amendment to the Constitution, which was ratified in 1868. The specific language that guarantees this right is found in the amendment’s Citizenship Clause, 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.”

This clause was introduced as part of the broader effort to address the legal status of formerly enslaved individuals following the Civil War. Here’s why the U.S. adopted citizenship by birth in the United States and how it fits into the country’s legal framework:

  • Post-Civil War Legal Reform and the 14th Amendment: The 14th Amendment was designed to grant citizenship to newly freed Black Americans, particularly the children of formerly enslaved people. It aimed to secure citizenship for all U.S.-born individuals, regardless of their parents’ status, responding to past discriminatory practices that denied Black Americans citizenship rights.
  • Preventing Statelessness: Birthright citizenship ensures that children born in the U.S. automatically have nationality, preventing them from becoming stateless — without a country willing to claim them.
  • International Practice: While birthright citizenship is rare globally, the U.S. continues to uphold this right, consistent with international human rights principles that protect individuals’ rights, regardless of their parents’ immigration status.
  • Legal Precedent and Tradition: U.S. courts have upheld birthright citizenship for over 150 years, with the Supreme Court’s ruling in United States v. Wong Kim Ark (1898) confirming that children born to foreign nationals on U.S. soil are U.S. citizens.

The debate over birthright citizenship in the U.S. has been ongoing, particularly regarding whether children born to undocumented immigrants should automatically gain citizenship. The 14th Amendment has been a central point of this discussion. While some argue that the amendment is clear in granting birthright citizenship to all children born in the U.S., others suggest that certain exceptions should apply, especially for children born to foreign nationals who are not in the U.S. legally.

Which Countries Offer Birthright Citizenship?

Many countries around the world practice birthright citizenship, though the rules and conditions vary. Some countries follow the principle of jus soli (right of the soil), where anyone born within the country’s territory is granted citizenship. Here are some examples:

  • Canada: Similar to the U.S., Canada offers birthright citizenship through jus soli, meaning any child born on Canadian soil is granted Canadian citizenship.
  • Argentina, Brazil, and Mexico: These countries also follow jus soli and offer automatic citizenship to children born within their borders.
  • United Kingdom: The UK used to practice birthright citizenship, but changes in the law have restricted it, especially for children of non-citizen parents.

However, many other countries follow the principle of jus sanguinis (right of blood), which grants citizenship based on the nationality of the parents, not the place of birth. Countries like Japan, Germany, and China primarily use jus sanguinis, meaning a child’s citizenship is determined by the nationality of their parents.

Trump’s Executive Order to End Birthright Citizenship

On January 20, 2025 — his first day back in office — President Donald Trump signed an executive order aimed at restricting birthright citizenship in the United States. The order directs federal agencies to deny U.S. citizenship to children born on U.S. soil unless at least one parent is a U.S. citizen or lawful permanent resident (green card holder). This would mark a major departure from long-standing interpretations of the 14th Amendment, which grants citizenship to nearly everyone born in the United States, regardless of their parents’ immigration status.

The executive order applies not only to children of undocumented immigrants but also to those born to individuals legally in the U.S. on temporary visas. It further instructs federal agencies to withhold citizenship documents, such as passports and certificates of birth abroad, from children who don’t meet the new parental criteria.

Court Challenges to Trump’s Birthright Citizenship Order

The order was immediately challenged in federal court and blocked by judges who called it “blatantly unconstitutional.” The courts have consistently interpreted the Citizenship Clause of the 14th Amendment to confer automatic citizenship to anyone born in the U.S., with limited exceptions (such as children of foreign diplomats). Trump’s order, critics argue, directly violates this constitutional protection.

The Biden-appointed Department of Justice initially declined to defend the order, but following Trump’s re-election, the administration has aggressively pursued its implementation. Although lower courts have struck it down, the administration has asked the U.S. Supreme Court to allow parts of the policy to take effect while the case is litigated.

As of May 2025, the Supreme Court is reviewing the case as an emergency matter. Notably, the administration’s legal argument has shifted focus: rather than directly defending the order’s constitutionality, government lawyers are urging the Court to narrow the power of lower courts to issue nationwide injunctions. A ruling in Trump’s favor on that procedural issue could still pave the way for future, more limited implementation of the order.

Source: Boundless