Trump's Executive Order on Birthright Citizenship, Explained

The ACLU on Jan 21, 2025

The American Civil Liberties Union and immigrants' rights advocates sued the Trump administration on its first day in office after President Donald Trump signed an executive order that seeks to strip certain babies born in the U.S. of the United States citizenship that the Constitution guarantees to them.

The lawsuit charges the Trump administration with violating the 14th Amendment and federal law. It was filed on behalf of organizations with members whose children will be denied citizenship under the order, including New Hampshire Indonesian Community Support, League of United Latin American Citizens and Make the Road New York.

At the ACLU, we know that denying citizenship to U.S.-born children is not only unconstitutional -- it's also a reckless and ruthless repudiation of American values. Birthright citizenship is part of what makes the United States the strong and dynamic nation that it is. This order seeks to repeat one of the gravest errors in American history, by creating a permanent subclass of people born in the U.S. who are denied full rights as Americans.

We will not let this attack on newborns and future generations of Americans succeed. Below, we detail how the Constitution and decades of legal precedent protect us from this egregious overreach by the Trump administration.

The Constitution Protects Birthright Citizenship

With extremely limited exceptions, the 14th Amendment's citizenship clause provides that all children born in the U.S. are citizens. The birthright citizenship rule comes from English common law and dates back centuries. This rule was briefly rejected by Dred Scott v. Sandford when the Supreme Court denied citizenship to the descendants of slaves. This shameful attempt to deprive natural-born Americans of their rights was later rectified by the 14th Amendment, which has safeguarded birthright citizenship ever since.

The 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." Today, there is only one group that is not "subject to the jurisdiction" of the U.S. and thus does not attain birthright citizenship: children born to foreign diplomats who are protected by sovereign immunity and are therefore not "subject to the jurisdiction" of the U.S.

Whether a U.S.-born child's parents are U.S. citizens does not impact whether that child is a citizen. This principle was upheld in United States v. Wong Kim Ark, in which the Supreme Court confirmed more than 100 years ago that a child born in the U.S. to Chinese parents -- who at that time were prohibited from becoming U.S. citizens -- was a citizen under the 14th Amendment.

Trump Can't Override the 14th Amendment's Protections

Only constitutional amendments, not executive orders or legislation, can change the Constitution.

That's why scholars have overwhelmingly condemned earlier, failed attempts by some state and federal lawmakers to pass legislation that denies citizenship to the U.S.-born children of undocumented noncitizens as unconstitutional. Because even Congress could not alter the constitutional right of birthright citizenship, a president certainly cannot do so by unilateral executive action.

Birthright Citizenship Is Fundamental to American Life

Birthright citizenship has allowed the U.S. to become a vibrant, dynamic nation of people whose families come from every country on earth.

In the past, efforts to limit birthright citizenship, including the Dred Scott decision, resulted in grave injustice. This order will stigmatize and send a message of exclusion not only to children directly impacted by the order, but also to many others who will have their citizenship questioned because of their race or who their parents are.

The 14th Amendment ensures that no politician can ever decide who among those born in our country is worthy of citizenship. In the face of the Trump administration's threats, the 14th Amendment's protections continue to safeguard the rights of every person born in this country.

Cody Wofsy is deputy director of the ACLU Immigrants' Rights Project. Hannah Schoen Steinberg is a staff attorney with the ACLU Immigrants' Rights Project. For more than 100 years, the ACLU has worked in courts, legislatures and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, the ACLU takes on the toughest civil liberties fights in pursuit of liberty and justice for all. To find out more about the ACLU and read features by other Creators Syndicate writers and cartoonists, visit the Creators website at www.creators.com.