Five Things Every American Should Know About Birthright Citizenship
The United States is one of only a handful of nations with birthright citizenship, but the Supreme Court may bring the scheme to an end when it rules in Trump v. Barbara.
Why this list matters: American citizenship is a politically and socially desirable status that comes with many advantages, but the relative ease of obtaining it merely through birth in the U.S. has created complexities in America’s immigration policies. No matter what the Supreme Court decides, there will be significant implications for America’s immigration laws and their enforcement.
1. What is Birthright Citizenship?
A nation that adopts birthright citizenship grants citizenship to a person simply because he or she is born within its territory. For that reason, birthright citizenship is also called jus soli, or “right of the soil.” By contrast, most nations grant citizenship based on the citizenship status of a person’s parents, a system known as jus sanguinis. Currently, only about 30 nations have adopted birthright citizenship, and most are in the Americas.
2. What is the current law in the United States?
U.S. citizenship can be obtained in three ways, the most common of which being birth in U.S. territory. A child born outside the United States may also be a citizen if at least one parent is a U.S. citizen. The third path is naturalization, which is available to individuals who were neither born in the United States nor to U.S. citizens, but who lawfully reside in the country and meet specific requirements. Although each pathway has generated debate, birthright citizenship has become the most controversial because U.S. law does not consider the legal status of a child’s parents at the time of birth.
3. Has the Supreme Court ever considered birthright citizenship in the past?
The issue of birthright citizenship took center stage in United States v. Wong Kim Ark (1898). The Court ruled that Wong Kim Ark, born in California to Chinese parents who were lawfully residing there, was a U.S. citizen under the Fourteenth Amendment. The decision was not unanimous; two of the eight justices dissented. Importantly, the case addressed only children born to parents who were in the country legally. The Supreme Court has never directly ruled on the citizenship status of individuals born in the United States to parents who are present unlawfully.
4. What is the core of the argument for and against birthright citizenship?
Proponents of birthright citizenship point to the plain language of the Fourteenth Amendment, which states that “all persons born…in the United States, and subject to the jurisdiction thereof” as establishing an unrestricted right to citizenship by birth. Since the 1898 decision in Wong Kim Ark, lower federal courts have largely adopted this view. Others argue that the requirement of “permanent domicile” is crucial for birthright citizenship claims, a condition they contend is not satisfied by those in the country illegally. The fundamental question is whether children born to parents in the country illegally are entitled to citizenship.
5. What is the position of the Trump administration?
On January 20, 2025, President Trump signed Executive Order 14160, which directs the federal government to end automatic birthright citizenship for children born in the United States unless at least one parent is a U.S. citizen or lawful permanent resident. This executive order prospectively eliminates citizenship claims for children born to parents who are in the country illegally or are present on visas which are not permanent, like student, work, or tourist visas. Multiple lower courts have blocked E.O. 14160.
THE BOTTOM LINE
Every society must define what it means to be a “citizen,” as well as the rights and responsibilities that accompany that status. The outcome of Trump v. Barbara will provide clarity on this issue, but no matter the ruling, that clarity will have a dramatic impact on U.S. immigration law and enforcement.
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The key phrase in this important court case is "subject to the jurisdiction thereof". Of course you are subject to local laws wherever you go. If you jaywalk in Norway or Nicaragua, you are subject to whatever penalties those sovereignties may impose. But does that really cover "jurisdiction" in the broader sense?
Consider this example. I'm born in Honduras. I have a Honduran passport and driver's license. I can vote as a Honduran. If required, I can be drafted into the armed forces and must serve. I am required to pay taxes to the Honduran government as required. I am recognized internationally as a Honduran and any international agreements that govern Hondurans apply to me. I now cross the border into the U.S. Yes, I can be sanctioned for jaywalking, but how on earth am I otherwise subject to jurisdiction of the United States?
The definition of "jurisdiction" from Oxford: "the authority that an official organization has to make legal decisions about someone or something."
The 14th Amendment was written to ensure full rights for former slaves (its proper execution took some time thereafter). Its writers did not anticipate or intend an international free for all. Otherwise they would've just said "born in the U.S.", period. That's why they added "subject to the jurisdiction thereof."
"Currently, only about 30 nations have adopted birthright citizenship, and most are in the Americas"
Important missing context for this statement: there are 193 countries recognized by the UN, two observer states and about 50 disputed territories (like Taiwan, Somaliland, etc.). Assuming 195 countries, then 30 = 15.38% of countries, or if 245 then it is 12.24%.
Either way, more than six times as many countries do not have it as those that do.
With that said, other countries' laws don't apply in the US.