Where did birthright citizenship come from?

The Trump administration on March 13 asked the U.S. Supreme Court to lift a nationwide pause, imposed by three lower courts, on President Donald Trump’s effort to limit birthright citizenship. Twenty-two states have sued the Trump administration over the president’s Jan. 20 executive order, which mandates that children born to illegal immigrants shouldn’t be considered citizens. The states’ Democratic attorneys general argue the Constitution’s 14th Amendment secures citizenship for almost anyone born on U.S. soil.

When was U.S. birthright citizenship established? Following the Civil War, Congress ratified the 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This overturned the U.S. Supreme Court’s infamous 1857 Dred Scott v. Sandford decision and guaranteed citizenship for former slaves.

Is there any serious debate about the 14th Amendment? Some scholars dispute the meaning of the phrase, “subject to the jurisdiction thereof.” While the phrase precludes children of foreign diplomats from gaining birthright citizenship, for example, the status of illegal immigrants is less clear. It’s often reasoned the latter are subject to the country’s jurisdiction since they may be prosecuted or deported. But Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, notes that while undocumented migrants may be subject to territorial jurisdiction, they aren’t subject to the full political jurisdiction of the law. “You can’t be called for jury duty … you can’t be drafted into the Army,” he said. The Trump administration argues children of illegal immigrants are only partially bound to the nation’s laws and thus aren’t subject to U.S. “jurisdiction.”

Do any other cases provide guidance? In 1898, the Supreme Court ruled in United States v. Wong Kim Ark that children of immigrant parents could not be denied citizenship. That ruling came after 21-year-old Wong Kim Ark, born in San Francisco to parents who had lived in the United States for 20 years, had been denied reentry after going abroad. The case established citizenship based on jus soli (“right of the soil”), and birthplace has been the determining factor in granting citizenship since then. But some experts have questioned whether this ruling should apply to children of illegal immigrants. Wong’s parents had entered the U.S. legally and were “domiciled within the United States,” even though they’d been denied citizenship because of the Chinese Exclusion Act of 1882.

Who would be affected by Trump’s executive order? Under the order, children without at least one parent who is a lawful U.S. resident would not be granted citizenship. Babies born to parents on a temporary but lawful visa wouldn’t be considered citizens either. The Center for Immigration Studies estimates that babies born to illegal immigrant families made up around 7% of all U.S. births in 2023. None of those children would be implicated in Trump’s order, since it applies only to babies born after Feb. 19.

Do other nations allow birthright citizenship? More than 30 countries offer unrestricted birthright citizenship. Most are located in North and South America.

What’s next for Trump’s executive order? The order remains on hold while courts consider the matter. The Supreme Court may ultimately need to weigh in on the case’s merits.

—This web version of the April issue Backgrounder has been updated with news of the Trump administration’s Supreme Court appeal.