On January 20, 2025, shortly after being sworn into office, President Donald Trump signed a series of executive orders introducing significant changes to the U.S. immigration system. Among these was an order titled “Protecting the Meaning and Value of American Citizenship,” which asserts that birthright citizenship does not apply to children born in the United States if their mother is either unlawfully present or lawfully present on a temporary basis and their father is neither a U.S. citizen nor a lawful permanent resident.
Based on this declaration, the executive order directs the federal government to withhold the issuance or recognition of any citizenship documentation for children born under these circumstances after February 19, 2025.
Section 1 of the executive order declares, “The privilege of United States citizenship is a priceless and profound gift.” This raises a critical question: Can a U.S. President revoke it through an executive order to fulfill a campaign promise?
U.S. citizenship may be acquired either at birth or through naturalization subsequent to birth. U.S. laws governing the acquisition of citizenship at birth embody two legal principles:
(1) Jus soli (the law of the soil) – a rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes; and
(2) Jus sanguinis (the law of the bloodline) – a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. This rule, frequently called “citizenship by descent” or “derivative citizenship”, is not embodied in the U.S. Constitution, but such citizenship is granted through statute. As U.S. laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.
The principle of birthright citizenship has been enshrined in the Constitution for more than 150 years. The Citizenship Clause of the Fourteenth Amendment unambiguously and expressly confers citizenship on “[a]ll persons born” in and “subject to the jurisdiction” of the United States. More than 125 years ago, the Supreme Court confirmed that this entitles a child born in the United States to noncitizen parents to automatic citizenship. See United States v. Wong Kim Ark, 169 U.S. 649 (1898).
Congress subsequently codified that understanding in the Immigration and Nationality Act (INA) . And the Executive Branch has long recognized that any attempt to deny citizenship to children based on their parents’ citizenship or immigration status would be “unquestionably unconstitutional.”
President Trump’s executive order seeks to revoke fundamental rights guaranteed by the U.S. Constitution to individuals born in the United States. Specifically, it challenges the constitutional principle that, with few exceptions, individuals born on U.S. soil are U.S. citizens. Under the order, citizenship would be granted only to children born in the United States if at least one parent is either a U.S. citizen or a lawful permanent resident. This policy strips the right to citizenship from children of undocumented parents and those whose parents hold lawful nonimmigrant status, such as H-1B and L-1 status holders. The order is likely to hinder U.S. companies’ ability to attract top global talent, thereby impacting economic growth and innovation.
Here are the key highlights of the executive order targeting the elimination of birthright citizenship:
- The executive order attempts to leverage language in the 14th Amendment (“and subject to the jurisdiction thereof”) to construct a novel, and widely discredited, argument that persons born in the U.S. to a noncitizen/non-LPR mother are not subject to U.S. jurisdiction and therefore are not U.S. citizens.
- The policy will take effect 30 days after the issuance of the executive order and will apply to children born on or after February 20, 2025.
- The definition of mother and father is limited to immediate female/male biological progenitors. This may impact the children of same sex couples and children born through Artificial Reproductive Technologies (ART).
Multiple lawsuits seeking to enjoin this executive order have been filed arguing that the President has no authority to rewrite or nullify a constitutional amendment or duly enacted statute. Nor is he empowered by any other source of law to limit who receives United States citizenship at birth.
The U.S. Supreme Court examined at length the theories and legal precedents on which the U.S. citizenship laws are based in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court discussed the types of persons who are subject to U.S. jurisdiction. The Court affirmed that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for naturalization.
The Court also concluded that: “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”
Pursuant to this ruling, and as stated by the U.S. Department of State in its Foreign Affairs Manual: (a) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally; and that; and (b) A child born in an immigration detention center physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the child’s parents have not been legally admitted to the United States and, for immigration purposes, may be viewed as not being in the United States.
Each year, thousands of children are born in the United States to parents who either lack legal status or hold temporary lawful status. If this unprecedented executive action is upheld, children born after February 19, 2025, to such parents will be denied legal status by the federal government. They will be rendered deportable and, in many cases, stateless. These children will lose access to a wide range of federal services available to their fellow Americans and, despite the Constitution’s guarantee of their citizenship, will be stripped of their rights to fully participate in the economic and civic life of their own country.
The key constitutional questions that federal district courts, circuit courts, and ultimately the U.S. Supreme Court must address include:
- Does the U.S. Constitution grant the President authority to establish rules regarding citizenship at birth?
- Can the President condition citizenship at birth on the citizenship or immigration status of a child’s parents under the Constitution?
- Does the President have unilateral authority to amend or reinterpret the Fourteenth Amendment?
- Can the President deny citizenship to individuals born in the United States as guaranteed by the Constitution?
Before analyzing what the President can and can’t do using executive powers to overhaul the immigration system, it is important to understand the constitutional limits within which the President and his Principal Officers can and should operate.
In 1952, the United States Supreme Court, in the landmark case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952), established a framework for analyzing whether the President’s issuance of an executive order is a valid Presidential Action. This framework established by Justice Robert H. Jackson (in his concurring opinion) has become more influential than the majority opinion authored by Justice Hugo Black, and has since been employed by the courts to analyze the validity of controversial Presidential Actions.
Justice Black, writing for the majority, stated that under the Constitution, “the President’s power to see that laws are faithfully executed refuted the idea that he is to be a lawmaker.” Specifically, Justice Black stated that Presidential Authority to issue such an executive order, “if any, must stem either from an act of Congress or from the Constitution itself.” While Justice Black’s opinion indicated that he refuted the idea that the President possesses implied constitutional power, four concurring opinions maintained quite the opposite. Of these concurrences, Justice Jackson’s has proven to be the most influential. In his concurring opinion, Justice Jackson established a three-tier scheme for analyzing the validity of Presidential Actions in relation to constitutional and congressional authority. Essentially this proposition leads the inextricable conclusion that guidance and support from Congress is more likely to ward off constitutional challenges.
Under the three-tier scheme, the President’s authority to act is considered at its maximum when he acts pursuant to an express or implied authorization of Congress because this includes “all that he possesses in his own right plus all that Congress can delegate.” Such action “would be supported by the strongest of presumptions and the widest latitude of judicial interpretation.”
However, where Congress has neither granted nor denied authority to the President, Justice Jackson maintained that the President could still act upon his own independent powers. For this second category, there is a “zone of twilight in which [the President] and Congress may have concurrent authority, or in which distribution is uncertain.” Under these circumstances, Justice Jackson observed that congressional acquiescence or silence “may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility,” yet “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”
In contrast, the President’s authority is considered at its “lowest ebb” when he “takes measures incompatible with the express or implied will of Congress … for he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter.” He cautioned that examination of Presidential Action under this third category deserved more scrutiny because for the President to exercise such “conclusive and preclusive” power would endanger “the equilibrium established by our constitutional system.”
As Youngstown case stands for the preposition that President’s authority to act is considered at its maximum when he acts pursuant to express or implied authorization of Congress but is considered at its lowest when the President acts on his own constitutional powers without Congress’ power. Thus, any Presidential Action without the express or implied authorization of the Congress may either attract more judicial scrutiny under the third tier or land such actions in the “twilight zone” under the second tier. It is difficult for the Executive Branch to overcome judicial scrutiny if Presidential Action falls within the third tier; however, a compelling argument can be presented if such action can be supported by either Congress’s acquiescence or silence under the second tier. All in all, to play it safe, Presidential Actions should be further to the express or implied authorization of Congress.
Section 301 of the INA, 8 U.S.C. § 1401, states that “a person born in the United States, and subject to the jurisdiction thereof” “shall be [a] national[] and citizen[] of the United States at birth.”
Contrary to the INA, the President Trump’s executive order declares a federal policy of refusing to recognize or accept the citizenship of individuals born in the United States to (i) a mother who is unlawfully present or lawfully present in the United States on a temporary basis, and (ii) a father who was neither a citizen nor a lawful permanent resident. The President has no authority to override Section 301’s statutory guarantee of citizenship, and his Executive Order directly contradicting Section 301’s requirements usurps Congress’s legislative authority and violates the Constitution’s separation of powers.
Analyzing the impacts of this executive order is crucial. It is projected to deny birthright citizenship to over 150,000 children nationwide each year. A 2025 analysis by the National Demographics Corporation found that in 2022, approximately 153,000 children were born to two noncitizen parents without legal status.
Thousands of these children may never have the opportunity to naturalize or obtain citizenship from another nation. They will be ineligible for most federal benefits, such as student financial aid, and will live under the constant threat of deportation. As they grow older, they will face restrictions on lawful employment, voting, running for office, and even international travel. Leaving the country would mean losing the ability to lawfully return.
Compared to citizens and lawfully present immigrants, children without legal status will experience significant harm to their health and well-being. Fear of deportation and harassment may deter them from accessing health services, even those for which they qualify. This lack of preventive care, including vaccinations and screenings, not only affects their health but also poses risks to public health.
If these children remain in the United States and have children of their own, their offspring will inherit their lack of legal status. Over time, this will create a multigenerational class of marginalized families—rooted in the United States yet excluded from its society—forever outsiders in the only country they know.
In conclusion, despite its “America First” premise, the executive order is unlikely to enhance U.S. safety or advance its interests. Rather, it will disrupt the functioning of the immigration system, which is crucial for the nation’s prosperity, and destabilize American families and communities.
At HSD Immigration Lawyer, we specialize in complex employment-, investment- and family-based immigration matters. We will continue to monitor and share additional updates related to birthright citizenship. Contact one of HSD Immigration Lawyer offices in Chicago, IL, Naperville, IL, Raleigh, NC, or Clark, NJ, for additional information about this recent announcement and for questions related to citizenship applications.