In 1868, the 14th Amendment to the U.S. Constitution was ratified, establishing birthright citizenship for “All persons born or naturalized in the United States.” This landmark legislation aimed to grant citizenship to formerly enslaved people and overturned the 1857 Dred Scott v. Sandford Supreme Court ruling that denied citizenship to enslaved individuals.

Trump Administration's Executive Order

More than 150 years later, in January 2025, President Donald Trump issued an executive order seeking to redefine who qualifies for birthright citizenship. The directive proposed denying citizenship to children born in the U.S. or its territories to parents who are undocumented or hold temporary visas.

Scope of the Order

The executive order, effective after February 19, 2025, argued that the Fourteenth Amendment does not extend to individuals not “subject to the jurisdiction thereof.” This reinterpretation aligns with the Trump administration’s broader efforts to restrict immigration and target nonwhite citizens, which began in 2015.

Legal Challenges and ACLU Lawsuit

Immediately following the order’s signing, multiple federal judges blocked its implementation, deeming it unconstitutional. However, in June, the Supreme Court ruled that district courts lacked the authority to issue nationwide injunctions against the order.

The American Civil Liberties Union (ACLU) subsequently filed a nationwide class-action lawsuit, Trump vs. Barbara, in New Hampshire last June. The suit aims to block the executive order on behalf of all children potentially affected by the directive. A district court judge granted a preliminary injunction, halting enforcement of the order.

Supreme Court Review

In December, the Supreme Court announced it would review the district court’s ruling. Oral arguments are scheduled for April 1, with a final decision expected by late June or early July.

ACLU's Perspective and Concerns

Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project, emphasized that the only legitimate path to altering birthright citizenship is through a constitutional amendment ratified by the states. He expressed doubt that such an amendment would pass.

Domicile Requirement

Wofsy explained that the Trump administration seeks to require parents of U.S.-born children to be “domiciled” in the country – meaning they reside there with the intention of staying indefinitely. He noted that most parents targeted by the order already meet this requirement.

Precedent and Historical Context

The 1898 Supreme Court case United States vs. Wong Kim Ark affirmed citizenship for children born in the U.S. to parents who were Chinese nationals. The Trump administration’s brief acknowledged this ruling but argued it doesn’t apply to children of aliens “not permitted by the United States to reside here.”

Potential Consequences

Wofsy warned that a favorable outcome for the Trump administration could establish a second-class citizenry, vulnerable to having their citizenship questioned. He stated, “Citizenship is not a policy tool to be wielded just because the people temporarily in office would rather the electorate looked different from the way it does.”

He further cautioned that the order’s implementation could render thousands of children born since February 19, 2025, undocumented, facing potential arrest, detention, and deportation. These children would also be denied access to essential services like passports and Social Security cards.

Wofsy described the Trump administration as “the most anti-immigrant administration that we’ve seen in at least 100 years,” asserting its goal is to revert to a “less free, less equal, and more white” America.