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After being sworn into office, Donald Trump signed a flurry of executive orders, including an effort to end birthright citizenship—challenging a right granted by the U.S. Constitution.
The executive order seeks to deny children United States citizenship if their parents are noncitizens. The order has prompted lawsuits from more than 20 states and civil rights organizations that argue the move is unconstitutional and an abuse of power.
“We need to discuss bipartisan commonsense immigration reforms, but denying birthright citizenship, which dates back centuries and has been upheld twice by the U.S. Supreme Court, is not the solution,” said Illinois Attorney General Kwame Raoul.
Borderless put together a guide to help you understand Trump’s executive order, its ramifications and the challenges it faces.
What is birthright citizenship?
Birthright citizenship is a guaranteed right under the 14th Amendment of the Constitution. The constitution 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 amendment, ratified in 1868, sought to extend citizenship to formerly enslaved persons after the end of the Civil War.
Under the constitution, citizenship is granted through birthplace-based citizenship, regardless of the parent’s legal status, or restricted ancestry-based citizenship as long as statutory requirements are met for that state.
The right was later reaffirmed in 1898 by the Supreme Court in United States v. Wong Kim Ark, which recognized that birthright citizenship is the process of citizenship automatically given to individuals upon birth in the United States, regardless of their parent’s status.
What does Trump’s executive order say?
The executive order argues that the 14th Amendment has “never been interpreted to extend citizenship universally to everyone born within the United States.” The administration hopes to reinterpret the phrasing “subject to the jurisdiction thereof” in the Amendment to mean that those who are in the country on temporary visas or without documentation are not subject to the jurisdiction of the United States.
Trump and his administration argue that the Amendment does not extend to people born in the United States if their parents do not have at least legal permanent status. If the father isn’t a citizen or lawful permanent resident and the mother is either not legally in the U.S. or is temporarily in the country with a Visa, the administration argues.
The executive order instructs federal agencies to deny birthright citizenship to children born to undocumented parents and would apply to people born in the United States after Feb. 19.
Can Trump overturn birthright citizenship?
Legal experts have said that Trump cannot end birthright citizenship with an executive order, and that this is something they expect to be decided in court.
“They are skipping any sort of due process,” said Michael Lukens, executive director of the Amica Center for Immigrant Rights. “It is a complete reversal of American jurisprudence.”
A direct amendment to the U.S. Constitution would require a two-thirds vote in both chambers of Congress and approval from at least three-quarters of American states. However, advocates and legal scholars say that it is likely the decision will be made in court because it’s something he can’t decide on his own and can trigger legal challenges.
Who would this impact?
Each year, around 150,000 children are born in the U.S. to parents who do not have legal status, as stated in a lawsuit challenging the executive order.
The Pew Research Center estimated that 1.3 million adults are children of unauthorized immigrants, according to the latest data available in 2022.
The executive order would also impact H1-B visa holders, which grant temporary work to noncitizens. Under the executive order, children of H1-B visa holders born in the U.S. would also not be able to claim birthright citizenship. Around 600,000 immigrants who work in the U.S. are H1-B visa holders, according to the Economic Policy Institute.
Who is challenging this executive order?
Illinois Attorney General Raoul joined at least 21 other states in filing a lawsuit against the Trump administration arguing the executive order was unconstitutional.
“That one of Donald Trump’s first days in office as president should be so diametrically opposed to our values as Americans is incredibly disappointing, though not surprising,” Raoul said. “The children born in the U.S. to immigrants are entitled to the rights and privileges that go along with U.S. citizenship.”
Governor JB Pritzker called the effort to strip birthright citizenship from people born in this country was unconstitutional. “Here in Illinois, we follow the law,” Pritzker said, “and the people of Illinois can count on me to stand against unconstitutional actions.”
Advocacy groups like the American Civil Liberties Union and the Lawyers for Civil Rights have also filed lawsuits against Trump’s executive order.
The ACLU case cites that under this amendment, some children would also be denied required identification and, later on, the right to vote, serve on juries, hold some jobs, and be productive members of American society despite being born and having lived only in the United States.
What’s next?
Trump’s order was temporarily blocked by U.S. District Court Judge John Coughenour, who called it “blatantly unconstitutional.”
The order will prohibit Trump and federal employees from implementing the order until at least Feb. 6. Each side will submit additional briefings on the legal merits of the executive order over the next two weeks.
Meanwhile, other legal challenges will be heard by other jurisdictions in the coming weeks.
Editor’s note: On February 6, Judge Coughenour doubled down with another injunction on the birthright executive order, one day after a federal judge in Maryland had also issued a temporary block.
Tara Mobasher is a Northwestern Medill Reporting fellow at Borderless Magazine. Email Tara at Tara@borderlessmag.org.
Samantha Nicole Monje is a Northwestern Medill Reporting intern at Borderless Magazine.