Trump Issues ‘Birthright Citizenship’ Executive Order

Of all the immigration actions that President Trump issued on his first day (back) in office, the one that has attracted the most attention is most likely an executive order captioned “Protecting the Meaning and Value of American Citizenship” — better known as “the birthright citizenship” order. Here’s what it does — and more importantly, where I believe it’s going.

“It is the Policy of the United States”. The key provision in — if not the heart of — that order is subsection 2(a), and here’s how it reads:

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

There’s a lot to unpack there, but let’s start with the fact that most births in the United States these days occur in hospitals. Shortly after such children are born, a flurry of paperwork ensues.

Hospitals will generally immediately gather information from the attending physician or midwife and the parent or parents and then register the birth with the state health department. That’s because, as the CDC explains: “In the United States, State laws require birth certificates to be completed for all births, and Federal law mandates national collection and publication of births and other vital statistics data.”

If you are a parent, you likely don’t give much though to that process, but the Public Health Services’ National Center for Health Statistics has a 61-page guide, “Hospitals’ and Physicians’ Handbook on Birth Registration and Fetal Death Reporting”, to walk practitioners and administrators through the process.

In case you are wondering, page 6 explains that for births occurring outside of hospitals, “the physician or other attendant who is present at or immediately after the birth of a child” must “obtain and record information on all items listed on the certificate and is responsible for filing the birth certificate with the” state.

That birth certificate always states where the birth occurred and generally includes the place of birth of the mother and (if known) the father, but it doesn’t — or shouldn’t — state that the child is a U.S. citizen.

That’s because the child’s citizenship is a federal issue, which is generally resolved when the child, or more often the child’s parent, applies for either a Social Security number (SSN) or a passport for the child.

To the best of my knowledge, up until Trump issued that order, the Social Security Administration and the State Department would issue an SSN and a passport, respectively, to any person with proof that he or she was born in the United States.

As per the implied terms of the Trump order, effective February 19, 2025, neither the commissioner of Social Security nor the secretary of State will issue such documents to a child born to a mother here illegally or on a nonimmigrant visa if the father is not a U.S. citizen or a lawful permanent resident (LPR, that is, a “green card” holder).

I’ll explain the rationale for that 30-day delay below.

An Overly Truncated History of the 14^th Amendment. The parameters of U.S. citizenship are set forth in the first sentence of section 1 of the 14^th amendment to the U.S. constitution, which 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.”

The 14^th amendment wasn’t ratified until July 1868, and up until that point, with one very big exception, citizenship was determined according to common law principles, pursuant to which “all free persons born within a state or nation were citizens thereof”.

The very big exception was the Supreme Court’s 1857 opinion in Dred Scott v. Sandford.

The plaintiff, Scott, had been an enslaved person in Missouri, but later lived in Illinois (a “free” state) and in a section of the Louisiana Territory where slavery was outlawed by the Missouri Compromise of 1820. He brought the suit seeking his freedom, claiming that he became free as a matter of law during his journeys around the Midwest.

Chief Justice Roger Taney, writing for the majority, concluded that “neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were … acknowledged as a part of the people” under the Declaration of Independence or in “the legislation and histories of the times” and thus Scott couldn’t sue in a federal court.

To overrule the Court’s opinion in Dred Scott, Congress enacted, over President Andrew Johnson’s veto, the Civil Rights Act of 1866, which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States”.

Still, proponents of the bill were concerned about the permanence of this provision, and its susceptibility to revision by subsequent legislation. Consequently, Congress took steps to include similar language when it considered the draft of the 14^th Amendment.

Notably, however, the second clause in the 1866 act differs slightly from the same clause in the 14^th amendment, with the former — “not subject to any foreign power” — being exclusive and the latter, “subject to the jurisdiction thereof [the United States]” being inclusive.

As I explained in my November 2018 Backgrounder, “Birthright Citizenship: An Overview”, however, there wasn’t much legislative history on this issue when the 14^th amendment was up for consideration in Congress and what discussion there was largely related to the status of Native Americans.

As then-Prof. John Eastman explained in congressional testimony in 2015:

The switch from the “not subject to any foreign power” clause of the 1866 Act to the “subject to the jurisdiction” clause of the 14^th Amendment simply avoided the concern that the Indian tribes might be deemed within rather than without the grant of automatic citizenship because they were “domestic” rather than “foreign” sovereign powers. Because of this interpretative gloss, provided by the authors of the provision, an amendment offered by Senator James Doolittle of Wisconsin to explicitly exclude “Indians not taxed,” as the 1866 Act had done, was rejected as redundant.

U.S. v. Wong Kim Ark. The most significant interpretation of the citizenship clause in the 14^th amendment can be found in an opinion issued by the Supreme Court in 1898, U.S. v. Wong Kim Ark.

Wong Kim Ark’s parents were living legally in the United States with the 19^th century equivalent of LPR status when he was born in San Francisco in 1873. He later left on a brief trip to China, and when he returned in August 1895, Wong Kim Ark was stopped by Customs officials and detained.

He sought habeas corpus to be released from custody, and eventually the matter made its way to the Supreme Court on the question of whether Wong Kim Ark was a U.S. citizen under the 14^th amendment and thus entitled to be admitted.

A majority of the Court concluded:

The 14^th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

Notably, however, the Court’s conclusions with respect to the status of individuals other than the children of permanent residents are, essentially, dicta.

Sen. Harry Reid Weighs In. Regardless, Wong Kim Ark has controlled determinations of the statuses of children born in the United States for nearly 127 years. Notably, however, Trump is not the first elected official to question its conclusions or their applicability to children born to unauthorized aliens.

As the Washington Post reported in October 2018:

Harry M. Reid appeared impassioned — even upset, at times — when he took the Senate floor in 1993 and declared “no sane country” would grant birthright citizenship to children born on its soil to parents who lack legal status.

The then-Nevada senator had recently introduced the Immigration Stabilization Act of 1993, which challenged the clause in the 14^th Amendment that grants automatic citizenship to any child born within U.S. borders.

“If making it easy to be an illegal alien isn’t enough, how about offering a reward to be an illegal immigrant. No sane country would do that, right?” Reid, a Democrat, asked his peers on Sept. 20, 1993. “Guess again. If you break our laws by entering this country without permission and give birth to a child, we reward that child with U.S. citizenship and guarantee a full access to all public and social services this society provides — and that’s a lot of services.”

As the Post goes onto note, Reid — a Democrat who served from 2007 to 2015 as the Senate majority leader — later reversed his position on the issue, calling his statements a “mistake”, and the bill in question ended up dying in committee. But it’s not like Trump is the first politician to call the issue out.

J.D. Vance on “Face the Nation”. In any event, numerous legal challenges have been filed in response to Trump’s executive order, and on January 23, Judge John Coughenour of the U.S. District Court for the Western District of Washington (a 1981 Reagan appointee) issued a nationwide temporary restraining order in State of Washington v. Trump, blocking the order from taking effect.

Host Margaret Brennan asked Vice President J.D. Vance about that litigation on January 26 on CBS News’ “Face the Nation”. Here’s the beginning of that exchange:

Brennan: There are five legal challenges already to one of the other immigration actions, the order on birthright citizenship. A federal judge, appointed by Ronald Reagan, who I think you’d agree, has some conservative credentials–

Vance: –Sure–

Brennan: –paused the order to end birthright citizenship, calling it “blatantly unconstitutional.” How do you reconcile this challenge to the 14^th Amendment to the Constitution?

Vance: So, I obviously disagree with that judge and these things — some of them will be litigated. That’s the nature of our constitutional system.

The discussion thereafter devolved — as many such do — into a debate over the status of the United States as a “country founded by immigrants”, but I want to focus on the key takeaway from that portion of the vice president’s remarks: “some of them will be litigated”.

While I have no insight on the president’s thought processes, as soon as I read the order, I concluded that Trump was hoping that states like Washington would file legal challenges, so that the interpretation of the citizenship clauses in the 14^th amendment can be revisited by the courts — and the Supreme Court in particular. Hence, the 30-day delay in implementation of the order.

Trump can’t just ask the justices what they think, because federal courts can’t issue what is referred to in the law as an “advisory opinion”, that is a “nonbinding interpretation of law”.

Instead, under Article III, section 2 of the U.S. Constitution, federal judges can only resolve “cases” or “controversies”, in which parties opposed to one another with stakes in the matter argue their respective positions.

There are reams of history explaining why the drafters restricted the courts’ jurisdiction, but suffice it to say that if either the executive or the legislative branch didn’t take some action challenging the assertion that every child in the United States whose parent wasn’t a diplomat is a citizen at birth, that assertion would be the rule.

As an attorney, it’s disquieting at best not to know dispositively the actual parameters of U.S. citizenship, given how precious, beneficial, and important that status is, particularly given the clarity the law affords to much less important questions.

Take, for example, the size limits on a blue crab that recreational crabbers are permitted to catch and keep on the shores of Chesapeake Bay in Maryland.

If it’s between April 1 and July 15, they can keep a hard-shell male if it’s five inches from tip to tip of his spikes, but between July 15 and December 15, that male must be one-quarter inch larger to end up in their pots. Females are off limits, crabs cannot be caught between December 15 and April 1, and there are different size restrictions for “peelers” and soft shells.

In case you’re wondering, most crabbers carry rulers, but the point is that given the precision the law has brought to bear on such a relatively minor issue like casual crab harvesting, why isn’t there more clarity than just dicta from a 19^th century opinion on whether a child born of an illegal alien is a U.S. citizen?

“Family Units”. That’s especially true now given that the demographics of the recent illegal migrant surge have given the question more saliency than it had in 1898, or even than in 1993.

In 1898, few aliens — aside from stowaways on steam or sail vessels — entered illegally. The Southwest border was a dusty and remote area that few aliens traversed on their way to the interior. For what it’s worth, even in FY 1925, the year after the Border Patrol was founded, agents apprehended just 22,199 illegal entrants at the nation’s borders, total.

By 1993, apprehensions had risen to more than 1.263 million, but nearly all of those migrants were single adults, and most of them were males from Mexico coming to work, and nearly all were quickly returned.

Adults with children travelling illegally in “family units” didn’t start showing up in significant numbers until FY 2013 (when Southwest border agents apprehended fewer than 15,000 of them), but even that year, 64 percent of illegal entrants came from Mexico, and again, most were quickly turned around and sent back.

Since FY 2022, more than 1.7 million illegal entrants apprehended at the Southwest border came in FMUs, and an estimated 1.52 million of them were subsequently released into the United States under Biden administration border policies.

Admittedly, there’s a difference between a parent traveling illegally with a child and a couple traveling with children, but it’s safe to say that thousands of couples either entered illegally or came separately and were reunited here over the past three fiscal years.

The Center recently estimated that 7 percent of all U.S. births in 2023 (between 225,000 and 250,000 in total) were to illegal alien parents, and given the hundreds of thousands of migrant family releases under Biden, that number is likely to be significantly higher going forward.

When it comes to major questions, the law abhors uncertainty just as nature abhors a vacuum. Whether children born here to illegal migrants are citizens — the definition of a “major question” — is a lot more legally uncertain than most believe. Donald Trump wants an answer to that question and is likely to get a dispositive one soon.