What to make of Trump's attempt to end birthright citizenship

The policy faces a tough legal battle, but could have a major impact if enacted.

January 23, 2025, 3:57 PM

For more than a century, being "born in the USA" has also meant the certainty of citizenship. But on Monday, President Donald Trump challenged the 14th Amendment's longstanding guarantee of birthright citizenship by issuing an executive order to end the granting of citizenship to children born in the United States to parents who do not have permanent legal status — either by lacking citizenship or having only temporary legal status — at the time of the child's birth.

The legality of Trump's action is highly disputed — it's already subject to multiple legal challenges, and a federal court temporarily blocked its implementation on Thursday. It also represents a seismic break with a longstanding status quo, and would remove the United States from the 30-plus countries that grant citizenship to just about any person born within their national borders. Should it hold up in court, Trump's decree could alter the citizenship status of hundreds of thousands of people born in the near future — and have further-reaching effects beyond that.

In light of this, I put together a hitchhiker's guide to birthright citizenship in the United States, examining how the policy came to be, how it compares to policies in the rest of the world and the nuances of public opinion on the issue — most surveys show that Trump's decision to end birthright citizenship is unpopular or, at most, highly divisive among Americans. I also dug into what the legal battle over Trump's order looks like, and how its implementation could have huge consequences for not just immigrants but Americans more broadly — including as part of a larger Republican effort to require proof of citizenship for voting and even apportionment of seats in the U.S. House of Representatives.

Birthright citizenship and the United States

Citizenship around the world rests largely on two concepts, either alone or in combination: jus soli, or "right of soil," based on one's birth in a given place, and jus sanguinis, "right of blood," based on one's familial descent. The United States has long used both: Most anyone born in the United States (besides the children of foreign diplomats) becomes a citizen, while anyone born to American parents, even while abroad, is also guaranteed citizenship.

Birthright citizenship as we know it took effect following the Civil War. Passed by Congress in 1866 and ratified by the states in 1868, the 14th Amendment of the Constitution opens by saying that "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 amendment was, in part, the culmination of a long-running campaign by Black Americans to guarantee their rights against racist laws and the Supreme Court's infamous decision in the 1857 case Dred Scott v. Sandford, which included a ruling that those of African descent could never be U.S. citizens.

In 1898, the Supreme Court's ruling in United States v. Wong Kim Ark buttressed the right to birthright citizenship for individuals born in the U.S. to noncitizen parents: The court determined that the 14th Amendment automatically made Wong Kim Ark a citizen because he'd been born in the United States, even though his parents were Chinese immigrants ineligible to become naturalized citizens under the 1882 Chinese Exclusion Act. Today, federal law includes birthright citizenship provisions, although Trump's latest salvo is far from the first attempt to undo them.

Now, despite Trump's oft-made claim to the contrary, the United States is far from alone in offering birthright citizenship. As of 2022, 60 countries had a provision in their legal codes or constitutions that provide at least some pathway to citizenship by jus soli, according to data from the Global Citizenship Observatory.* And more than half of those nations have a mostly unrestricted version akin to the United States' longstanding formulation, whereby nearly anyone born in that country is guaranteed access to citizenship. (Others may provide for birthright citizenship subject to additional requirements, such as parental descent, period of residence and/or membership of a certain racial or ethnic group.)

Overall, unfettered birthright citizenship is mainly found among countries in the Americas, many of which — including the U.S. — have lengthy histories of immigration from other parts of the globe. That's not a coincidence: These nations often permitted ample immigration, and birthright citizenship made it easier for a country to legally incorporate the children of immigrants. By contrast, no European nations and few on other continents have unrestricted birthright citizenship. Over the past few decades, there has been movement toward a more restrictive approach in some developed countries. In the 1980s, both the United Kingdom and Australia restricted birthright citizenship, and in 2005, New Zealand's parliament passed a law to remove automatic birthright citizenship altogether. Still, others have opened the doors to birthright citizenship, such as Germany, which in 2000 added a restricted form to what had previously been a descent-based system.

The legal battle ahead

Whether the United States will join the countries that have narrowed their rules regarding birthright citizenship likely hinges on judicial interpretation of which persons are, in the words of the 14th Amendment, "subject to the jurisdiction" of the United States.

For more than 120 years, the federal government and the courts have taken this to mean that anyone in the country is subject to federal and state laws and that, resultingly, those born here are guaranteed citizenship (indigenous Americans stood as a rare exception until the 1924 Indian Citizenship Act). But ahead of taking office, Trump argued that the amendment's language should apply only to U.S. citizens or lawful permanent residents, allowing his administration to implement a restrictive form of birthright citizenship.

Could Trump's argument carry the day in court? Many legal scholars have expressed doubt that an executive order can override the 14th Amendment. The federal judge who temporarily halted the decree's implementation — a Ronald Reagan appointee — previewed what may be the most likely judicial response, calling it "blatantly unconstitutional." Having operated as a precedent for more than a century — reaffirmed in part by a 1982 case — this is far more entrenched legal terrain than some recent precedents the conservative-controlled Supreme Court has overturned, such as abortion (Roe v. Wade, 1973) or the power of federal agencies to interpret ambiguous statutes (Chevron v. Natural Resources Defense Council, 1984). Perhaps tellingly, when Trump considered a similar decree during his first term in 2018, then-House Speaker Paul Ryan, a fellow Republican, said such a move would be insufficient to overcome a plain reading of the Constitution.

Still, it's not impossible that the Supreme Court could ultimately agree with Trump, at least in part. Of the court's six conservative justices, Trump placed three on the high court's bench, while the opinions of longer-tenured Clarence Thomas and Samuel Alito have often ended up to the right of the Trump-appointed trio. Beyond Trump's alternate interpretation of the 14th Amendment, another argument has also gained traction on the right, particularly after it was embraced by federal Circuit Court Judge James Ho: the idea that birthright citizenship doesn't apply in cases of "war or invasion," and that unauthorized border entries presently constitute such an invasion. Ho, an ultra-conservative Trump appointee, may have been looking to raise his stock as a future Trump pick for the Supreme Court, as he'd previously argued in 2006 that the 14th Amendment did grant automatic birthright citizenship and that a constitutional amendment would be necessary to change this.

Americans' nuanced attitudes toward birthright citizenship

Trump won the presidency thanks in part to voters' affinity to Trump's more restrictionist views on immigration, which loomed pretty consistently as the second-most salient issue in the 2024 election after the economy. Polls have shown that Americans tend to support Trump's aim to deport many undocumented immigrants and limit their entry into the United States.

But even amid a more anti-immigration political atmosphere, surveys still suggest that the public is quite divided over ending birthright citizenship, with support depending in part on how pollsters ask about it. Recent national polls that have asked whether the U.S. should continue to offer birthright citizenship have usually found that a large majority prefer the status quo. But when asked whether they would support ending the policy, particularly for children of undocumented immigrants, opinions are more mixed.

Over the past year, six surveys have asked respondents whether they would support ending birthright citizenship for children of undocumented immigrants, with somewhat mixed results. Late in 2024, two polls from YouGov/The Economist found that a narrow plurality of Americans supported this change. But more recently, two surveys from YouGov (one with The Economist), as well as surveys from Ipsos/New York Times and Fabrizio, Lee & Associates/GBAO for The Wall Street Journal, each found more Americans opposed than in favor of ending birthright citizenship. Notably, the Ipsos poll's wording first noted that the 14th Amendment currently guarantees citizenship for those born in the United States, which may have cued some respondents to be less supportive of the change, while The Wall Street Journal poll's question wording didn't mention legal status, and found even less support.

At the same time, two surveys conducted last year found at least 60 percent favored continuing birthright citizenship, regardless of whether a child was born to undocumented parents, again demonstrating how the framing of a polling question — in this case, orienting it toward ending a policy or continuing it — can influence the choices that some respondents make. Each of these questions also tended to also use more neutral language, such as "non-citizen" or "regardless of legal status," compared with "illegal" or "undocumented" in most of the surveys about ending it.

Regardless of question wording, predictable partisan divisions pop up across most polls. For example, the four YouGov surveys that asked about ending birthright citizenship found that around two-thirds of Republicans supported such a change, while roughly one-fourth of Democrats held a similar view. And the December Quinnipiac University survey that asked about continuing the policy found that about 9 in 10 Democrats wanted to keep granting birthright citizenship, compared with around 4 in 10 Republicans.

Of course, this issue is likely still new to many Americans, and we can expect it to rise in salience in light of Trump's executive order. And as is always the case, public opinion can shift once a hypothetical policy that pollsters ask about becomes real. A January AP-NORC survey that asked about this subject a third way — "changing the Constitution" — points to how this could matter: While a slight majority opposed doing so, 20 percent of Americans said they neither favored nor opposed such a change. One additional survey by SoCal Strategies for OnPointPolitics asked about birthright citizenship without any reference to existing law and similarly found that 50 percent agreed with giving it to the children of undocumented immigrants, while 33 percent disagreed.

Given the current political environment, the legal and political battles to come may polarize public opinion further along party lines, driving even more Republicans firmly into Trump's camp and more Democrats into opposition toward ending birthright citizenship.

How this could affect the U.S. population and political representation

Should Trump's executive order withstand judicial scrutiny in the long run, its most immediate and direct impact would be on the few hundred thousand newly born people in the United States who would no longer automatically receive citizenship. In 2018, the Pew Research Center estimated around 250,000 births to undocumented immigrants as of 2016 (down from 390,000 in 2007). With uncertainty about where that figure is today, and combined with some tens of thousands of births to individuals with temporary legal status, the total affected by Trump's order may add up to something in the vicinity of 300,000 people, give or take many thousands. That would amount to roughly 8 percent of all births annually (3.6 million births were registered in the United States in 2023).

Paradoxically, this could produce a larger population of undocumented immigrants in the medium term. Of course, Trump's immigration policies aim to significantly cut down on the population of undocumented immigrants in the country — which estimates from the Pew Research Center placed at about 11 million in 2022, and may be above 13 million now. But it's unclear if those policies would outbalance the addition of at least one or two hundred thousand noncitizen newborns annually: Since 1990, the annual net change in undocumented immigrants in the country has ranged as high as about +1 million, but has never fallen below around -400,000, according to data from the Center for Migration Studies.

Beyond these immediate effects, the restriction of birthright citizenship could also have broader implications for proof of citizenship requirements in the country. After all, if federal agencies have to check the documents of those suspected of not having permanent legal status, it follows that they would have to start checking most everyone's documents.

This ties into a larger ongoing push by Republicans to restrict access to certain benefits and political rights, like the ability to vote, based on proof of citizenship. Spurred in large part by Trump's unfounded claims that electoral fraud has been rampant, House Republicans have introduced federal legislation to require all voters to provide documentation, and eight states passed GOP-backed constitutional amendments in 2024 to explicitly outlaw noncitizens from voting, even though that is already illegal in federal elections (and also very rare).

The thing is, many citizens who would otherwise be eligible to vote could also get caught in the proof-of-citizenship net. A 2023 survey by the Brennan Center for Justice and the University of Maryland's Center for Civic Democracy and Engagement found that roughly 1 in 10 American citizens of voting age do not have proof of citizenship readily available — that is, a passport, birth certificate or naturalization papers. And the reasons for this aren't nefarious: People may have lost their documents, had them stolen or destroyed, or left them with another family member who lives far away.

Trump's actions also point to future attempts to connect citizenship to political representation. Beyond birthright citizenship, the 14th Amendment includes language saying that apportionment of seats in the House of Representatives should occur based on a count of the "whole number of persons in each state." Yet during his first term, Trump tried to add a citizenship question to the 2020 census with an eye on apportioning by only the citizen population. Back then, the Supreme Court shot down Trump's efforts, although its decision suggested the conservative justices might be receptive to different arguments. On Monday, Trump seemingly set the stage to try again ahead of the 2030 census, as he revoked an executive order issued by now-former President Joe Biden that reaffirmed the Census Bureau's practice of including all persons the census counts.

Unsurprisingly, the effects of such a change would likely benefit Republicans. Had the 2020 apportionment occurred based on the citizen population, census estimates suggest that blue states California, New Jersey and New York would collectively have five fewer seats, while red states would see a net gain of three seats (+1 each in Louisiana, Missouri, Ohio and West Virginia and -1 in Texas). The other two seats lost by the blue states would go to swing states Michigan and Pennsylvania. This likely would've given the House GOP at least a couple of more seats overall, a big deal right now in the closely divided chamber. Plus, it would also have handed Trump five more electoral votes in 2024, increasing his victory in the Electoral College from a 312-216 win to a 317-211 advantage.

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Amid the flurry of actions Trump has taken in less than a week, we'll have to see what sticks legally and what resonates with or repels the public. Yet even if Trump's executive order regarding birthright citizenship is halted by the courts, there's little stopping him from trying again later in his presidency. He will certainly have opportunities to appoint more conservative judges to lower federal courts, and might even get another vacancy to fill on the Supreme Court. With a Republican-controlled Senate for at least two years — and quite possibly the rest of Trump's presidency — the new president will have ample opportunity to swing the judiciary further to the right and, potentially, find future agreement with his position on birthright citizenship.

Footnote

*Due to the technicalities in each nation's laws, different sources vary somewhat regarding which nations have birthright citizenship and their degree of restrictiveness.