Supreme Court to Review Birthright Citizenship Challenge

The Supreme Court is preparing to hear arguments concerning an executive order signed by President Donald Trump. This order sought to eliminate birthright citizenship for children born in the U.S. to parents residing here illegally or temporarily.

This legal challenge stems from an executive order issued on the first day of Trump's second term. The order aimed to end the practice known as birthright citizenship, which grants citizenship to almost everyone born on U.S. soil.

Constitutional Basis and Precedent

Birthright citizenship is rooted in the legal principle of jus soli, or the “right of soil.” In the United States, this right was formally established in the Constitution following the Civil War. This inclusion was partly intended to guarantee citizenship for formerly enslaved people.

The 14th Amendment clearly states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” Exceptions to this rule are currently limited, primarily applying to children born to foreign diplomats.

A significant historical case involved Wong Kim Ark, who was born in the U.S. to Chinese parents. After being denied reentry following overseas travel, his subsequent lawsuit led to a Supreme Court ruling affirming that the 14th Amendment grants citizenship regardless of parental legal status.

Global Perspectives on Citizenship Acquisition

The American concept of birthright citizenship is uncommon worldwide. Only about three dozen nations, predominantly in the Americas, guarantee citizenship based solely on being born within their borders.

Most countries adhere to the principle of jus sanguinis, or “right of blood.” Under this system, a child’s citizenship is determined by the citizenship of their parents, irrespective of the birthplace.

Varying International Approaches

  • European Union: None of the 27 member states grant automatic, unconditional citizenship to children born to foreign citizens on their territory.
  • Asia and Africa: Similar restrictions apply across much of Asia and Africa, where parental lineage is prioritized.
  • Australia: This nation previously allowed birthright citizenship until 1986. Since then, citizenship requires at least one parent to be an Australian citizen or permanent resident.

Some nations employ a hybrid approach, considering factors like parenthood, residency duration, and ethnicity. Germany, for instance, modified its laws significantly.

Until recently, German citizenship required at least one parent to be German. However, starting in 2024, children born in Germany to non-German parents receive automatic citizenship if one parent has held unlimited residency status for over five years. The government noted that studies showed earlier citizenship grants improved educational prospects for children with migration backgrounds.

Arguments Against Current U.S. Policy

Advocates for restricting birthright citizenship in the U.S. focus intensely on the phrase “subject to the jurisdiction thereof” within the 14th Amendment. They contend this clause permits the government to exclude children born to individuals unlawfully present in the country.

However, lower courts have repeatedly blocked the administration’s executive order, placing it on hold. The case originating in New Hampshire saw a U.S. district judge rule that the order “likely violates” both federal law and the Constitution.