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A little bit of President Donald Trump's new executive orders It has caused as much anxiety as that of birthright citizenship.
The order prohibits federal agencies from issuing or accepting citizenship documents Children born in the United States When neither parent is a US citizen or lawful permanent resident at the time of the child's birth.
Critics call it blatantly unconstitutional, including a misguided federal judge in Seattle who issued a temporary injunction against it last week. But the new policy fits perfectly with the original text and meaning of the Fourteenth Amendment.
'Blatently unconstitutional': US judge temporarily blocks Trump's ban on birthright citizenship
For the first century after Ratification of the Fourteenth Amendment, Few legal scholars have focused on a directive like Trump's. If anything, they would be more puzzled as to why the federal government would issue passports to U.S.-born children to illegal aliens, tourists, and “temporary residents” in the first place.
Migrants from a caravan in Tapachula, Chiapas state, Mexico walk as they head to the US border on January 20, 2025. (Isaac Guzman/AFP via Getty Images)
Contrary to popular belief, the Fourteenth Amendment does not state that all persons born in the United States are citizens. It states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens. This second critical and conditional statement is ignored or misinterpreted by proponents of “universal” birthright citizenship.
The intent was to constitutionalize the protections afforded by the Civil Rights Act of 1866, which provided that “all persons born in the United States, and not subject to any foreign power” would be considered citizens.
The change in language did not reflect Congress' desire to eliminate the legal definition or embrace universal birthright citizenship. In fact, the Civil Rights Act remained in effect for another seventy years, with courts and legal scholars alike assuming that it was fully consistent with the Citizenship Clause.
This is because the sponsors of the Fourteenth Amendment made clear that the phrase “subject to the jurisdiction” of the United States meant political allegiance to the United States, not to another country. Children born to foreigners are citizens of the country of origin of their parents and therefore owe allegiance to that country of origin and are subject to its jurisdiction.
Legislative history shows that Congress intended the Fourteenth Amendment to remove permanent race-based barriers to citizenship—not to grant citizenship to every person born within the geographic borders of the United States. Congress did not intend to apply birthright citizenship to children born in the United States who owed only limited loyalty to the United States.
Even modern proponents of “universal birthright citizenship” acknowledge that children born on American soil to diplomats or tribally related Native Americans do not acquire citizenship by birthright. In fact, they and their children only became citizens through the Indian Citizenship Act of 1924—legislation that would not have been necessary if the Fourteenth Amendment had adopted the common law rules of universal birthright citizenship.
While critics of Trump's order claim that universal birthright citizenship is the “settled law of the land,” the Supreme Court has never definitively addressed the issue.
The first time the country's highest court expressed its opinion on the meaning of the citizenship clause – in the famous Slaughterhouse Cases of 1872 – it stated that the phrase “subject to its jurisdiction” excluded “the children of ministers, consuls, citizens or subjects.” From foreign countries born within the United States.”
People raise their hands as they take the Pledge of Allegiance during a naturalization ceremony at the Stavros Niarchos Foundation Library on July 02, 2024, in New York City. (Photo by Michael M. Santiago/Getty Images)
The Court affirmed this understanding in 1884 in Elk v. Wilkins, where it denied birthright citizenship to an American Indian because he “owed immediate allegiance” to his tribe and not to the United States.
Most legal arguments in favor of universal birthright citizenship ignore these early cases and point to the 1898 United States v. Wong Kim Ark decision. However, this decision simply states that children born in the United States who are legal permanent residents are American citizens.
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Moreover, this decision concerned the constitutionality of laws that created a class of lawful permanent residents who, just like Dred Scott-era blacks, had always been excluded from citizenship based solely on their race—precisely the situation the Fourteenth Amendment was designed to prevent.
Our country's current immigration and citizenship laws no longer create the kind of permanent, race-based barriers to citizenship. Today, the federal law defining citizenship (8 USC § 1401) simply repeats the language of the Fourteenth Amendment, including the phrase “subject to the jurisdiction thereof.”
Even modern proponents of “universal birthright citizenship” acknowledge that children born on American soil to diplomats or tribally related Native Americans do not acquire citizenship by birthright.
This language retains the same meaning today as it had when it was drafted and ratified. It does not evolve to mean something else simply because previous administrations interpreted it incorrectly more broadly.
As a result, the President has the authority to direct federal agencies to act within the original meaning of the Fourteenth Amendment, issuing government documents and benefits only to individuals truly subject to the jurisdiction of the United States.
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Far from being an attempt to rewrite the Constitution or “end birthright citizenship,” Trump’s order is a much-needed and long-overdue course correction, reversing a decades-old policy that was never constitutionally enforced in the first place.
Amy Swearer is a senior legal fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies. Hans von Spakovsky is the Director of the Election Law Reform Initiative and a Senior Legal Fellow at the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies.
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Click here to read more from Hans von Spakovsky
Hans von Spakovsky is a senior legal fellow at the Heritage Foundation's Mays Center for Legal and Judicial Studies and director of the Center's Election Law Reform Initiative.
