Sharing the Facts About Birthright Citizenship

The United States guarantees citizenship to all children born inside its borders, regardless of the immigration status of their parents. This guarantee, known as birthright citizenship, was established by the 14th Amendment to the Constitution. It’s been in a place for a century and a half.

Hours after returning to power, President Trump issued an executive order that attempts to exclude some children born in the U.S. from citizenship. The order says the federal government will no longer consider the U.S.-born children of undocumented people, lawful temporary residents, and DACA beneficiaries to be citizens. The order defies the Constitution and would have major consequences for states.

Multiple lawsuits challenging the order were quickly filed, including by attorneys general from 22 states, citing imminent harm to those born on U.S. soil that are the children of undocumented or temporary immigrants.

On Feb. 5, 2025, a federal court in Maryland entered a nationwide preliminary injunction, prohibiting enforcement of the order until the case is resolved, or a stay is entered pending appeal. The judge in that case published an opinion that stated that no court has ever adopted the Trump administration’s position, and the executive order is “clearly unconstitutional.” He cited the 1898 U.S. Supreme Court case United States v. Wong Kim Ark, which held that birthright citizenship is an enshrined constitutional right, with only a few limited exceptions. Only a few days after the first preliminary injunction, a second, third, and fourth federal court similarly entered nationwide preliminary injunctions of the order, for similar reasons.

For the time being, the executive order is unlikely to go into effect while the matter is litigated. The Department of Justice will likely appeal and seek stays of the preliminary injunctions – which, if granted, would allow the executive order to go into effect. On Feb. 19, 2025, the 9th Circuit Court of Appeals denied the administration’s emergency bid to stay the nationwide preliminary injunction. The issue could end up in front of the Supreme Court.

Here are some key takeaways about birthright citizenship and the executive order:

• The Constitution is clear. The U.S. guarantees citizenship to all children born inside its borders. Denying that right is not only unconstitutional, but against the very values and foundations of our nation laid out in the Constitution.
• The 14th Amendment states that every child born in the U.S. is considered equal under the law and entitled to full participation in our civic life and economy. That’s a foundational principle of our democracy, enshrined in law and upheld in the courts time and time again. And it’s a principle we must defend on behalf of all American people.
• The courts have already spoken. The Supreme Court has repeatedly held that citizenship automatically applies to all children born in the United States, including the children of most immigrants. That’s a guarantee we’ve honored for a century and a half. The court has identified only a few extremely limited exceptions, such as children born to foreign diplomats.
• The states decide when we change the Constitution. The president can’t just rewrite it whenever he wants. The text of the 14th Amendment is clear. Changing birthright citizenship would require the consent of two-thirds of Congress and then ratification by at least 38 states. We have checks and balances in this country.
• State officials are busy doing the jobs the people elected them to do. This executive order would swamp both state officials, and taxpayers, with new burdens and divert critical state resources.
  • Under Trump’s order, millions of children would be ineligible for food and health programs that are available to all citizens and administered by the states. In each state, for each program, state officials would have to create new procedures and go through administrative hurdles to sift through who is and isn’t a birthright citizen. Meanwhile, large numbers of children could go hungry and be left without homes. Some states would also have to change the procedures they use for issuing birth certificates.
• This sweeping attempt to exclude U.S.-born children from citizenship, in violation of the 14th amendment, is an attack on the rule of law and the Constitution.