By Dusty Miriam Gutierrez
On January 20, 2025, President Trump issued an Executive Order named “Protecting the Meaning and Value of American Citizenship.” This order states that as of February 19, 2025, not all children born in the United States will be categorically recognized as U.S. citizens. If neither parent holds U.S. citizenship or lawful permanent residency at the time of the child’s birth, the child will not automatically become a U.S. citizen. The order, therefore, prohibits federal agencies from issuing or accepting citizenship documents for such children. Consequently, these children will be considered citizens of their parents’ original nation.
President Trump’s Executive Order is being legally challenged by group litigations of several states and affiliates, even though it reaffirms the Fourteenth Amendment to the U.S. Constitution.
The 14th Amendment is one of three post-Civil-War amendments (the 13th, 14th, and 15th), and was designed to ensure that those recently freed from slavery were recognized as citizens throughout the United States. The Amendment was passed by Congress in 1866, and ratified in 1868 by the states, partially as a requirement for the states that had seceded to rejoin the Union. Its intention was not related to the immigration status of legal or illegal aliens. (Mark Levin, Constitutional Lawyer and American Broadcaster at Fox News)
The 14th Amendment, Section 1 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." This quotation is sometimes referred to as the “citizenship clause.” A “naturalized” U.S. citizen is someone who was born outside of the U.S., but became a U.S. citizen through a legal process. The term "jurisdiction" refers to the official power to make legal decisions and judgments.
The legislative history of the Fourteenth Amendment indicates that Congress intended to eliminate permanent race-based barriers to citizenship. However, the Supreme Court has never directly addressed the meaning of the citizenship clause, often referred to as "birthright citizenship," or the interpretations surrounding it.
There are a few instances where the Supreme Court has referred to the citizenship clause. (Amy Sweare, Heritage Senior Legal Fellow) For example:
- In the Slaughterhouse Cases (1872), the Supreme Court ruled that the Fourteenth Amendment applied only to privileges and immunity rights associated to U.S. citizenship, not rights associated with state citizenship. (The purpose of the privileges and immunity rights of U.S. citizenship was to prohibit states from discriminating against citizens from another state.)
- In Elk v. Wilkins (1884), the Supreme Court denied birthright citizenship to an American Indian because he "owed immediate allegiance" to his tribe and not to the United States. This is important because illegal aliens are citizens of foreign countries and have no allegiance to the U.S.
- In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that Wong Kim Ark was a child born in the United States, whose parents were lawful, legal, and permanent residents of San Francisco, California. Therefore, he was granted U.S. citizenship. This is important because illegal aliens are not lawful, legal, or permanent residents of the U.S.
In all three cases, the Supreme Court confirmed that citizenship is based on legal principles and status. The Supreme Court's interpretations aligned with the Fourteenth Amendment and its intent.
President Trump’s Executive Order is being challenged. The order will probably prevail if the case reaches the Supreme Court. Historically, the Supreme Court makes decisions grounded in “case law.” Case law is a collection of legal decisions made by judges that establish legal precedents. The Supreme Court makes decisions interpreting the Constitution as it was understood at the time a law was enacted and considering applicable precedents.
Currently, President Trump’s Executive Order is being challenged by several states. The lower courts' ongoing challenges are merely driven by political factors, government funding, and social gains. I believe these challenges will fail.
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Dusty Miriam Gutierrez has earned degrees in economics, IT, and legal technology, and has published an economic article in the Townhall magazine.
