University of St. Thomas Law Journal

Born Here and No Longer a Citizen: Is This the President’s Call to Make?

By Camryn Davis*

The short answer is no.

Birthright citizenship, which is the right of someone born in the United States to automatically become an American citizen, is a constitutional right that requires formal amendment to change, not simply an executive order.1 Formal amendment would require a two-thirds congressional vote and ratification by three-fourths of the states.2

As one of his first executive decisions as president of the United States, Donald Trump signed an order to end automatic citizenship rights for people born in the United States.3 Specifically, this order aims to deny citizenship to children born to parents who were living in the United States illegally or on temporary visas.4 Though this order was one of many promises made by Donald Trump during his presidential campaign, the constitutional right of birthright citizenship is ultimately a legislative and judicial decision to be played out by the courts.5

Since Donald Trump took office, he has signed at least ten orders and actions related to immigration status, deportation, and increased border security.6 During President Trump’s first week in office, Immigration and Customs Enforcement (ICE) officials arrested 5,843 people, which is, on average, 973 people a day.7 President Trump has been vocal about focusing on identifying and arresting illegal immigrants accused and convicted of crimes.8 However, the breadth of his changes in policy will affect many law-abiding immigrants, as well as American-born citizens.9

a. Why is birthright citizenship inherently a legal issue?

    President Trump’s order cannot take effect without judicial ruling because it threatens a constitutional right.10 Birthright citizenship comes from the Latin phrase jus soli, which translates to “right of the soil.”11 The Fourteenth Amendment of the U.S. Constitution clearly grants the principle of birthright citizenship in the first sentence: “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.”12 This constitutional right has existed since 1868,13 and some could say, is a pinnacle of the “American dream”14 that our nation was successfully founded upon. However, people with strong negative beliefs about immigration argue birthright citizenship is a “great magnet for illegal immigration” and invites pregnant women to cross the border to have a child and remain in the U.S. . . . .”15 On the other hand, supporters of birthright citizenship counter this argument with its long-recognized history and the threat of taking away a significant citizen class’s rights.16 Moreover, eliminating birthright citizenship would require many Americans to have to navigate complex laws to prove their citizenship beyond their birth certificate.17

    Congress first passed the Fourteenth Amendment to grant citizenship to freed, American-born former slaves.18 In 1898, the U.S. Supreme Court ruled birthright citizenship is a right afforded to American-born children of immigrants, regardless of their parents’ immigration status or race in U.S. v. Wong Kim Ark.19 The Court has not re-examined birthright citizenship since this precedential case.20 The Trump administration rests its rejection of birthright citizenship on the language in the Fourteenth Amendment that reads “subject to the jurisdiction thereof,”21 reasoning that this language excludes children of unlawful immigrants.22 However, in Plyler v. Doe, the Court ruled that even undocumented immigrants are subject to U.S. laws and granted protections afforded by the law.23 Furthermore, as Harvard Law School Professor Gerald Neuman explains, “the thing that makes the immigration laws so enforceable against [illegal immigrants] is that they are subject to the jurisdiction of the United States.”24 Neuman, an expert in immigration and nationality law, states how Supreme Court cases, along with history, reaffirm that birthright citizenship, and citizenship rules more broadly, are not the president’s decision to change at all.25

    b. What happens next?

    The Trump administration’s executive order was supposed to go into effect on February 19, 2025.26 However, a constitutional amendment requires a two-thirds vote in the House of Representatives and Senate, and ratification by three-fourths of the states.27 Until then, the executive order is on hold.28

    This hold is official since a federal judge in Washington paused the executive order on January 23, 2025.29 Prior to this pause, four U.S. states opposed the order: Washington, Arizona, Illinois, and Oregon. 30Hearing the states’ arguments, Judge John Coughenour stayed the order, calling it “blatantly unconstitutional.”31 Three other federal judges in Massachusetts, New Hampshire, and Washington took similar actions.32 Today, at least twenty-two states have brought lawsuits against this order.33 Moreover, individuals including pregnant women and organizations such as the American Civil Liberties Union (ACLU) have challenged the constitutionality of this order.34 Consequently, the courts have halted the executive order until the formal legal process plays out.35 Still, the Trump administration can appeal these orders, and the constitutionality of Trump’s executive order to end birthright citizenship could potentially go all the way to the U.S. Supreme Court.36 For now, however, birthright citizenship remains.37

    c. What Are Other Collateral Effects?

    While Trump cannot directly enforce his order, he can command ICE forces to interpret citizenship narrowly when conducting raids.38 Notably, Trump has revoked a long-standing directive to limit migrant arrests in sensitive locations like schools or churches.39 This directive once prohibited ICE and Border Patrol officers from arresting undocumented immigrants in houses of worship, schools, hospitals, and public demonstrations such as weddings and funerals.40

    Although this threatens many people and families who have immigrated to the U.S., detentions and deportations will likely be met with lawsuits challenging their legality.41 Unfortunately, some of these raids may happen without legal interjection, going unnoticed by the media or immigration advocates, who can aid families targeted by strict deportation policy.42

    These families include American children who were born in the U.S. to immigrant parents, and naturally intended to stay.43 According to a study done in 2016, approximately five million U.S.-born children below the age of eighteen were living with at least one unauthorized immigrant parent.44 However, only 6 percent of babies born that same year in the U.S. had unauthorized immigrant parents (about 250,000 babies).45 Though these statistics may not fully encompass the population’s makeup today, they suggest that children of undocumented immigrants are both prevalent, yet still a small proportion of our nation’s citizens.46

    d. Conclusion

    A statement by Wisconsin Attorney General Josh Kaul summarizes the realistic effect of Trump’s order to end birthright citizenship best. He writes: “[Trump] is not a king, and he cannot rewrite the Constitution with the stroke of a pen.”47 Yet fear and complex questions remain.48 For example, taking away citizenship rights from American-born citizens will consequently increase the undocumented immigrant population, but may not provide a long-term solution to reform or limit illegal immigration.49 Is this the goal for political figures such as President Trump, spearheading anti-immigration policy? In other words, even if President Trump was able to revoke birthright citizenship (which is not that simple), would the results be what he expected?

    * Camryn Davis, J.D. Candidate, University of St. Thomas School of Law Class of 2025 (Articles Editor).

    1. Alison Moodie, Birthright Citizenship, Explained, Boundless (Feb. 11, 2025), https://www.boundless.com/immigration-resources/birthright-citizenship-explained/ [https://perma.cc/3U7U-QWCA]. ↩︎
    2. Trump Has Vowed to End Birthright Citizenship. Can He Do It?, BBC (Feb. 5, 2025), https://www.bbc.com/news/articles/c7vdnlmgyndo [https://perma.cc/W68W-8KDA]. ↩︎
    3. Id.; Executive Order 14160, 90 Fed. Reg. 8449 (Jan. 20, 2025). ↩︎
    4. BBC, supra note 2. ↩︎
    5. BBC, supra note 2. ↩︎
    6. Sonia Rincón, A Look at Immigration Policies that Have Changed Since President Donald Trump Took Office, ABC7 (Feb. 5, 2025), https://abc7.com/post/trump-immigration-policies-executive-orders-ice-raids-more-have-taken-place-taking-office/15865131/ [https://perma.cc/4VN9-F3DB]. ↩︎
    7. Id. ↩︎
    8. Id. ↩︎
    9. See id. ↩︎
    10. See BBC, supra note 2. ↩︎
    11. Birthright Citizenship, Am. Immigr. Council, https://www.americanimmigrationcouncil.org/topics/birthright-citizenship [https://perma.cc/J66J-HFGF] (last visited Feb. 16, 2025). ↩︎
    12. U.S. Const. amend. XIV, § 1; BBC, supra note 2. ↩︎
    13. BBC, supra note 2. ↩︎
    14. SeeChris Arnade, Immigrants and the American Dream, Am. Compass (July 21, 2020), https://americancompass.org/immigrants-and-the-american-dream/ [https://perma.cc/LU4G-PV3E], for further reading on how immigrants living in the U.S. still capture the American dream. ↩︎
    15. BBC, supra note 2. ↩︎
    16. BBC, supra note 2. ↩︎
    17. Wendy Feliz, Birthright Citizenship: What It Is and Why We Need to Preserve It, Immigr. Impact (Aug. 21, 2015), https://immigrationimpact.com/2015/08/21/birthright-citizenship-what-it-is-and-why-we-need-to-preserve-it/ [https://perma.cc/839W-F6PE]. ↩︎
    18. BBC, supra note 2; see generally Dred Scott v. Sanford, 60 U.S. 393 (1856). ↩︎
    19. United States v. Wong Kim Ark, 169 U.S. 649, 732 (1898). ↩︎
    20. BBC, supra note 2. ↩︎
    21. U.S. Const. amend. XIV, § 1. ↩︎
    22. BBC, supra note 2. ↩︎
    23. Plyler v. Doe, 457 U.S. 202, 211–12 (1982); BBC, supra note 2. ↩︎
    24. Rachel Reed, Can Birthright Citizenship Be Changed?, Harv. L. Today (Jan. 24, 2025), https://hls.harvard.edu/today/can-birthright-citizenship-be-changed/ [https://perma.cc/SVH6-5SKU]. ↩︎
    25. Id. ↩︎
    26. Moodie, supra note 1. ↩︎
    27. BBC, supra note 2. ↩︎
    28. BBC, supra note 2. ↩︎
    29. Blake Brittain & Nate Raymond, Judge Blocks Trump’s Birthright Citizenship Order Nationwide, Reuters (Feb. 5, 2025, 5:10 PM CST), https://www.reuters.com/legal/second-us-judge-blocks-trumps-birthright-citizenship-order-2025-02-05/ [https://perma.cc/HW3Q-BNP3]. ↩︎
    30. Nate Raymond, US Judge Accuses Trump of Ignoring Rule of Law to Curb Birthright Citizenship, Reuters (Feb. 6, 2025, 7:24 PM CST) https://www.reuters.com/world/us/us-judge-accuses-trump-ignoring-rule-law-curb-birthright-citizenship-2025-02-06/ [https://perma.cc/Y69R-NMS8]. ↩︎
    31. BBC, supra note 2. ↩︎
    32. Michael Casey & Mike Catalini, Fourth Federal Judge Blocks Trump’s Birthright Citizenship Order, Associated Press (Feb. 13, 2025, 6:47 PM CST), https://apnews.com/article/trump-birthright-citizenship-ruling-boston-3e442a97de8398dc4faf691857ea48ea [https://perma.cc/KF9Y-VAJM]. ↩︎
    33. Mike Catalini, Trump Administration Appeals Maryland Judge’s Ruling Blocking Birthright Citizenship Order, Associated Press (Feb. 11, 2025, 6:41 PM CST), https://apnews.com/article/immigration-birthright-citizenship-trump-administration-maryland-528bc8ba083ff046fdd6f9c8a3ac07e5. ↩︎
    34. Trump Signs Executive Order Ending Birthright Citizenship, Other Immigration Actions, ABC7 (Jan. 21, 2025), https://abc7.com/post/trump-signs-executive-order-ending-birthright-citizenship/15820949/ [https://perma.cc/2S7Z-5CBZ]. ↩︎
    35. BBC, supra note 2. ↩︎
    36. BBC, supra note 2. ↩︎
    37. BBC, supra note 2. ↩︎
    38. BBC, supra note 2. ↩︎
    39. Luke Barr & Julia Reinstein, Trump Authorizes ICE to Target Schools and Churches, ABC7 (Jan. 22, 2025), https://abc7.com/post/president-trump-authorizes-ice-target-schools-churches/15825606/ [https://perma.cc/QX96-H37F]. ↩︎
    40. Id. ↩︎
    41. BBC, supra note 2. ↩︎
    42. See Joel Rose, Trump’s Immigration Orders Are a Blueprint for Sweeping Policy Changes, NPR (Jan. 27, 2025, 12:43 PM ET), https://www.npr.org/2025/01/27/nx-s1-5276139/trump-immigration-border-orders-blueprint [https://perma.cc/YM88-UKZG]. ↩︎
    43. See Jeffrey Passel, D’Vera Cohn & John Gramlich, Number of U.S.-Born Babies with Unauthorized Immigrant Parents Has Fallen Since 2007, Pew Rsch. Ctr. (Nov. 1, 2018), https://www.pewresearch.org/short-reads/2018/11/01/the-number-of-u-s-born-babies-with-unauthorized-immigrant-parents-has-fallen-since-2007/ [https://perma.cc/49H2-JUS7]. ↩︎
    44. Id. ↩︎
    45. Id. ↩︎
    46. See id. ↩︎
    47. Attorney General Kaul and 13 Attorneys General Release Statement on Preliminary Injunction Issued in Birthright Citizenship Case, Wis. Dep’t Just. (Feb. 13, 2025), https://www.doj.state.wi.us/news-releases/attorney-general-kaul-and-13-attorneys-general-release-statement-preliminary [https://perma.cc/SEJ8-ZN6S]. ↩︎
    48. See, e.g., The ABA Supports the Rule of Law, Am. Bar Assoc. (Feb. 10, 2025), https://www.americanbar.org/news/abanews/aba-news-archives/2025/02/aba-supports-the-rule-of-law/ [https://perma.cc/ZF35-XBJK]; see also ABA Condemns Remarks Questioning Legitimacy of Courts and Judicial Review, Am. Bar Assoc. (Feb. 11, 2025), https://www.americanbar.org/news/abanews/aba-news-archives/2025/02/aba-statement-re-remarks-questioning-judicial-review/ [https://perma.cc/6274-729J]. These statements made by the American Bar Association lend to the illegitimacy and misinformation spread by the Trump administration in relation to legal immigration processes, birthright citizenship, and the role of judicial oversight. ↩︎
    49. Feliz, supra note 17. ↩︎

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