By: Benjamin Behimer

February 13, 2025

On January 20, 2025, President Donald Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship,” attempting to redefine birthright citizenship. The order seeks to deny automatic U.S. citizenship to children born on U.S. soil if their parents are either undocumented immigrants or temporary visa holders.[1] However, this executive action is blatantly unconstitutional, as it directly contradicts well-established Supreme Court precedent and the clear text of the Fourteenth Amendment.

 

Despite political rhetoric surrounding birthright citizenship, the law has been settled for over a century. Multiple Supreme Court cases—including United States v. Wong Kim Ark (1898), Yick Wo v. Hopkins (1886), and Plyler v. Doe (1982)—uphold the principle that anyone born in the United States, regardless of their parents’ citizenship or immigration status, is automatically a U.S. citizen.

Trump’s order is already facing legal challenges, and a federal judge has issued a temporary restraining order blocking its enforcement.[2] The courts will inevitably strike it down—the president does not have the power to unilaterally rewrite the Constitution.

 

The Fourteenth Amendment states in pertinent part: 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.”[3] Additionally, the Fourteenth Amendment’s Equal Protection Clause states that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”[4] The phrase “subject to the jurisdiction thereof” has been misinterpreted by anti-immigration advocates, but Supreme Court precedent firmly establishes its meaning.

 

While not a case about citizenship, Yick Wo v. Hopkins established that the Fourteenth Amendment applies to both citizens and noncitizens.[5] The Court struck down a discriminatory San Francisco law on Equal Protection grounds that targeted Chinese immigrants operating laundromats. The Court held that the Fourteenth Amendment “is not confined to the protection of citizens”[6] and that noncitizens are protected under the Equal Protection Clause’s guarantee that “any person” within a state’s jurisdiction shall receive the equal protection of the laws.[7] The Court applied the Fourteenth Amendment broadly, stating that its provisions are “universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”[8] It is important to note that this means noncitizens are within a state’s jurisdiction for Fourteenth Amendment purposes.

 

In United States v. Wong Kim Ark, the Supreme Court explicitly held that children born in the U.S. to noncitizen parents are U.S. citizens.[9] Wong Kim Ark was born in San Francisco to Chinese immigrant parents, and when he was denied reentry to the U.S. after traveling abroad, he challenged the government’s claim that he was not a citizen. The Supreme Court ruled in his favor, stating: “It is impossible to construe the words ‘subject to the jurisdiction thereof’ … as less comprehensive than the words ‘within its jurisdiction’ … or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ‘subject to the jurisdiction of the United States.’”[10] In holding that persons “within the jurisdiction” of one of the states are “subject to the jurisdiction of the United States,” the Court in Wong Kim Ark made the Fourteenth Amendment’s birthright citizenship clause applicable to noncitizens.

 

In Plyler v. Doe (1982), the Supreme Court clarified that the Fourteenth Amendment’s birthright citizenship clause applies to nonresidents residing illegally in the United States.[11] Further, the Court clarified that undocumented immigrants are “within the jurisdiction” of the states where they reside. The case involved a challenge to a Texas law that sought to deny free public education to undocumented children. Texas argued that those who are illegally in the United States are not “within the jurisdiction” of the state.[12] However, the Court ruled against Texas: “Neither our cases nor the logic of the Fourteenth Amendment supports [a] constricting construction of the phrase ‘within its jurisdiction.’”[13] Because undocumented immigrants are considered “within the jurisdiction” of a state, and those who are “within the jurisdiction” of a state are “subject to the jurisdiction of the United States,” the Fourteenth Amendment’s birthright citizenship clause is applicable to undocumented immigrants.

 

In conclusion, the Fourteenth Amendment’s birthright citizenship clause extends to every person on U.S. soil—even those here illegally. The President cannot overturn the Constitution with an executive order.

[1] Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449, 8449 (Jan. 20, 2025).

[2]  Mike Catalini & Gene Johnson, A federal judge temporarily blocks Trump’s executive order redefining birthright citizenship, AP (Last updated Jan. 23, 2025), https://apnews.com/article/birthright-citizenship-donald-trump-lawsuit-immigration-9ac27b234c854a68a9b9f8c0d6cd8a1c.

[3] U.S. Const. amend. XIV, § 1 (emphasis added).

[4] U.S. Const. amend. XIV, § 1 (emphasis added).

[5] 118 U.S. 356, 369 (1886).

[6] Id.

[7] Id.; U.S. Const. amend. XIV, § 1.

[8] 118 U.S. 356, 369 (1886).

[9] 169 U.S. 649, 705 (1898).

[10] Id. at 687.

[11] 457 U.S. 202, 211 (1982).

[12] Id.

[13] Id.