United States: Supreme Court Strikes Down Effort to Limit Birthright Citizenship

Upon taking office on January 20, 2025, President Trump issued a birthright citizenship Executive Order stating that the following classes of children born in the United States after February 19, 2025 would no longer be U.S. citizens at birth:

• Children whose mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of the child’s birth; and
• Children whose mother’s presence in the United States at the time of the child’s birth was lawful but temporary, and the father was not a United States citizen or lawful permanent resident at the time of the child’s birth. This group includes children born to parents in nonimmigrant status such as F, H, L, O, P and all other nonimmigrant categories with no exceptions, and with no exception provided for nonimmigrant parents seeking permanent residence.

The Citizenship Clause in the 14th Amendment to the U.S. Constitution states (emphasis added): “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 basis of President Trump’s EO was a significant reinterpretation of the phrase “subject to the jurisdiction thereof,” which for more than a century has been interpreted to grant citizenship based solely on birth in the United States, subject to some very narrow exceptions.

Since early 2025, various injunctions prevented implementation of the birthright citizenship EO, even after a June 27 Supreme Court decision seemed to limit the authority of federal courts to issue nationwide (or “universal,” in the court’s terminology) injunctions. The White House responded by seeking a Supreme Court ruling that the EO is constitutional in its reinterpretation of the 14th Amendment Citizenship clause.

In striking down the birthright citizenship EO, the Supreme Court relied on common law principles, U.S. history, and the seminal 1898 birthright citizenship case interpreting the 14th Amendment Citizenship Clause, United States v. Wong Kim Ark (169 U.S. 649 (1898).

The Court rigorously explored the text and history of the Citizenship Clause and found no evidence that the intent of the clause was to impose a domicile or immigration status limitation on parents of children born in the United States. Instead, the Court reaffirms the longstanding principle that the 14th Amendment Citizenship Clause phrase – “subject to the jurisdiction” – refers to the power of the United States to govern those within its territory. Therefore, children born in the United States are U.S. citizens at birth, with the only current exception being children born to foreign diplomats who receive certain privileges and immunities from U.S jurisdiction.

Today’s Supreme Court decision means that the country’s longstanding birthright citizenship legal framework remains unchanged. Children born in the United States continue to be U.S. citizens at birth unless they are subject to the narrow exception for children of certain foreign diplomats.

The Barbara case was decided on constitutional grounds. However, several Supreme Court justices took the position in dissenting or concurring opinions that Congress could amend federal law to create exceptions to birthright citizenship for children born to parents present in the United States temporarily or unlawfully.  While there may be efforts to introduce legislation into Congress that limits birthright citizenship, any legislation that is passed is likely to face constitutional challenge in the courts.