Revisiting the birthright citizenship question and the Constitution

In recent public comments, President-elect Donald J. Trump repeated past remarks about seeking to revoke the citizenship status of children born in the United States to non-citizen parents.

On Dec. 8, 2024, Trump told NBC News he would seek to achieve such a goal. “We’re going to have to get it changed. We’ll maybe have to go back to the people,” Trump said on NBC’s “Meet the Press.” “But we have to end it.” Trump also mentioned he could use powers reserved to the president through the use of executive action to end birthright citizenship “if we can.”

Trump’s comments echoed past questions raised about how this change could be implemented in light of the 14th Amendment’s Citizenship Clause, short of a constitutional amendment changing the citizenship status of a person born in the United States or on its sovereign soil.

In 2018, Constitution Daily looked at similar comments from Trump, along with guidance from the Congressional Research Service (CRS). At the time, President Trump said he could settle the birthright citizenship question by issuing an executive order.

The Basic Argument

The 14th Amendment’s Citizenship Clause, as well as the Supreme Court’s Wong Kim Ark decision in 1898, established a right to birthright citizenship for the children of immigrants. The Citizenship Clause is the first sentence of the 14th Amendment, and it reads, “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.”

Wong Kim Ark was born in San Francisco, Calif., in 1873 to parents who were Chinese citizens who resided in the United States at the time and did so for 20 years. At age 21, he returned to China to visit his parents; when he returned to the United States, Wong was denied entry on the ground that he was not a citizen. The Supreme Court, in a 6-2 decision, ruled that Wong Kim Ark was a citizen under the 14th Amendment. Justice Horace Gray’s majority opinion said that Wong Kim Ark, having “a permanent domicil[e] and residence in the United States,” became “at the time of his birth a citizen of the United States,” even though his parents were Chinese citizens. Gray wrote that the 14th Amendment’s Citizenship Clause fell in line with British and American common law when it came to people born in the United States as having claims to citizenship, with exceptions including the children of foreign ministers, enemy combatants on American soil, and people on foreign public ships. He explained that the term “subject to the jurisdiction thereof” pertained to citizenship claims made by the children of diplomats and hostile combatants.

Some people have contested conclusions from Wong Kim Ark regarding birthright citizenship. They cited language in the 1866 Civil Rights Act as supporting the argument that some immigrants weren’t under the “jurisdiction of the United States” because of their allegiance to another country. “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” the law read.

However, the Congressional Research Service back in 2018 looked at both viewpoints and said the majority of scholars thought the Wong Kim Ark precedent favored citizenship at birth on American soil. “The weight of current legal authority suggests that these executive and legislative proposals to restrict birthright citizenship would contravene the Citizenship Clause,” the CRS wrote. “At least since the Supreme Court’s decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes.”

The CRS also cited a more-recent Supreme Court decision, Plyler v. Doe (1982), which cited Wong Kim Ark and also a 1912 legal treatise that held there was no difference “between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful.”

In a 2022 report, the CRS refers to its prior conclusion from 2018. “Persons born within the United States, on federally recognized tribal lands, and in designated territories generally are U.S. citizens at birth, regardless of the citizenship or immigration status of their parents,” it states. “These include persons born to members of Native American tribes and those born in certain U.S. territories (currently, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands).” Among the exceptions are “children whose parents are foreign diplomats” and “persons born in outlying possessions such as American Samoa and Swains Island” who are generally considered noncitizen U.S. nationals under the Immigration and Nationality Act.

In a 2015 report, the Congressional Research Service considered whether birthright citizenship could be amended by statute when looking at the history of birthright citizenship bills in Congress. “While a few proposals have suggested constitutional amendments, most seek to change the birthright citizenship rule by statute. It would likely fall to federal courts to determine whether such a statute could be upheld as constitutional,” the CRS concluded.

An executive order looking to change the rule would likely be challenged in court. During President Trump’s previous desire to pursue an executive order he also indicated that the case could wind up at the Supreme Court through the appeals process and the court would have to rule on the constitutionality of such an executive order. “While extant legal authority indicates that neither Congress nor the Executive may deny recognition of birthright citizenship based on the immigration status of a person’s parents, the Supreme Court has not firmly settled the issue in the modern era,” the CRS noted in 2018.

Most likely, a constitutional amendment would be the most direct means of redefining birthright citizenship. However, such actions face a higher bar since two-thirds of the House and the Senate need to agree on the proposed amendment and its wording, and then present it to the two-thirds of the states for ratification. (The Constitution also provides for a convention of the states under Article V, which has not yet happened in United States history.) The last constitutional amendment was ratified in 1992.

Scott Bomboy is the editor in chief of the National Constitution Center.