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Executive Order on Birthright Citizenship: Legal and Constitutional Implications

  • By: Immigration Attorney Osas Iyamu
  • Published: February 4, 2025
Executive Order on Birthright Citizenship Legal and Constitutional Implications

On January 20, 2025, President Donald Trump issued an executive order titled Protecting the Meaning and Value of American Citizenship,” aiming to redefine birthright citizenship in the United States. This executive order attempts to strip fundamental rights provided by the U.S. Constitution from individuals born in the United States. The Constitution establishes that individuals born on U.S. soil are, with limited exceptions, U.S. citizens. The order expressly prohibits issuing citizenship documentation to children born in the United States if:

  1. The mother was unlawfully present in the U.S. at the time of birth and the father was neither a U.S. citizen nor a lawful permanent resident.
  2. The mother was lawfully present in the U.S. temporarily, and the father was neither a U.S. citizen nor a lawful permanent resident.

This executive order significantly limits the automatic acquisition of citizenship, effectively targeting children of undocumented parents as well as children of parents in lawful nonimmigrant status, such as those holding TPS or H-1B visas. Such restrictions could hinder the ability of U.S. companies to attract top global talent, potentially impacting economic growth and innovation.

The executive order was set to take effect 30 days after issuance, on February 20, 2025. Additionally, it narrowly defines “mother” and “father” as immediate female/male biological progenitors, potentially impacting children of same-sex couples and those born through Artificial Reproductive Technologies (ART). (Whitehouse.gov)

The executive order immediately faced legal challenges from multiple states and civil rights organizations. A coalition of 18 states, along with the District of Columbia and San Francisco, filed a lawsuit in Massachusetts, arguing that the order violates the Fourteenth Amendment of the U.S. Constitution. Similarly, Washington, Arizona, Illinois, and Oregon initiated a separate lawsuit in the Western District of Washington.

On January 23, 2025, U.S. District Judge John C. Coughenour issued a temporary restraining order (TRO), preventing the executive order from taking effect and effectively suspending its enforcement for fourteen days. 

Constitutional Analysis

The executive order relies on the argument that certain individuals are not “subject to the jurisdiction” of the United States, as required by the Fourteenth Amendment. However, this claim lacks merit. Historically, the jurisdiction clause has applied to only a narrow group of people, such as foreign diplomats and some Native American tribes before they became U.S. citizens. The interpretation that undocumented immigrants and nonimmigrants are outside U.S. jurisdiction contradicts legal precedent, as these individuals are subject to federal immigration laws and enforcement.

The Fourteenth Amendment’s Citizenship Clause states:

“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.”

The U.S. Supreme Court reaffirmed this principle in United States v. Wong Kim Ark (1898), ruling that a child born in the U.S. to foreign parents is a citizen by birth.

The executive order directly conflicts with established constitutional law and Supreme Court precedent by introducing conditions based on parental legal status. Critics argue that such a restriction is inconsistent with the clear language of the Fourteenth Amendment.

Potential for Judicial Overturn

Given the constitutional protections enshrined in the Fourteenth Amendment and the Supreme Court’s historical rulings, there is strong legal reasoning that this executive order exceeds presidential authority and violates well-established law. The temporary restraining order (TRO) already signals that the judiciary is likely to intervene against its enforcement.

However, the courts make the final decision on its legality. As lawsuits progress, higher courts—including the U.S. Supreme Court—may ultimately decide whether this executive order stands.

Conclusion

While this executive order aims to redefine birthright citizenship, it faces significant constitutional challenges and strong opposition in the courts. The legal battle underscores the ongoing debate between executive authority and constitutional rights, reaffirming that the courts remain the ultimate arbiters of such issues.

Disclaimer: This blog post is for informational purposes only and should not be construed as legal advice. Always consult with a qualified immigration attorney regarding your specific situation.

Osas Iyamu

Distance Is No Barrier, Call Us Now!
(800) 974-6480
(352) 237-2403