Birthright Citizenship:
5 Things to Know

1) The Constitution guarantees birthright citizenship to all people born in the United States, with very limited, well-defined exceptions.

The guarantee of birthright citizenship is laid out in the Fourteenth Amendment, which establishes that “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.”

Following the abolition of slavery more than 150 years ago, Congress and the States adopted the Fourteenth Amendment as the centerpiece of an effort to guarantee equality for those born on U.S. soil, a matter critical to formerly enslaved people and their children in the aftermath of the Civil War. The Fourteenth Amendment also ensures that children born in the U.S. to parents who settled here from abroad would be recognized as citizens.

More than 125 years ago, the Supreme Court affirmed\ the straightforward reading that the Fourteenth Amendment guarantees access to citizenship to anyone born in the U.S., even if their parents are immigrants who are present without authorization. Some anti-immigrant advocates have pushed a fringe interpretation of the text of the Fourteenth Amendment positing that undocumented people owe “allegiance” to another country, and therefore are not “subject to the jurisdiction” of the United States. This theory has never been adopted by any court and finds almost no support in the historical record. The phrase “subject to the jurisdiction” was broadly understood to exempt people with diplomatic immunity and the like, such as the children of foreign diplomats born in the United States.

Despite efforts to portray this as an open question, birthright citizenship has been a settled legal fact since the 19th century.

2) No President has the power to amend the Constitution through executive order.

The suggestion that the president has the power to amend the Constitution through executive order is a dramatic overreach that should be completely rejected. Article V of the Constitution explicitly describes the process for amending the Constitution. by Congress and the States. Critically, there is no role for the president in this process. Any attempt to limit or alter the guarantees in the Fourteenth Amendment, including citizenship by birth, through executive order, would be flatly unconstitutional and would encounter immediate litigation.

As Assistant Attorney General Walter Dellinger testified in 1995, “because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution.…The amendment’s purpose was to remove the right of citizenship by birth from transitory political pressure.”

Short of explicitly overturning or reinterpreting the Fourteenth Amendment protections, President-elect Trump could take other steps to limit access to citizenship and its benefits for children of immigrants, including limiting access to documentation (like passports and social security numbers) and public benefits to individuals whose parents lack proof of their immigration status. These actions would face similar legal challenges.

3) Birthright citizenship is a key factor in assimilation and integration.

A 2015 report by the National Academy of Sciences found that “[b]irthright citizenship is one of the most powerful mechanisms of formal political and civic inclusion in the United States; without it, the citizenship status of 37.1 million second-generation Americans living in the country (about 12% of the country’s population), and perhaps many millions more in the third and higher generations, would be up for debate.”

Research shows that children of immigrants are generally very successful in the U.S., surpassing their parents and matching or exceeding their typical American peers in key markers of integration like education, earnings, and home ownership.

Birthright citizenship is a hugely positive feature of American society that allows new generations to be completely welcomed as Americans, to more fully integrate into and participate in civic and community life across the United States. The promise of birthright citizenship embodies the core principles of the American promise and the American dream—it is a rejection of a caste or legacy system in favor of inclusion and equal opportunity.

4) Eliminating birthright citizenship has long been the primary goal of the anti-immigrant lobby.

The United States is one of 33 countries around the world, including most countries in the Western Hemisphere, that guarantee birthright citizenship, along with another 32 countries that provide more limited citizenship access to children of immigrants.

Despite the majority of Americans supporting the constitutional guarantee of citizenship for people born in the U.S., anti-immigrant lobbying groups have fought for decades to eliminate it. Groups like the Heritage Foundation, V-Dare, and the Federation of American Immigrant Reform—founded by avowed eugenicist and white nationalist John Tanton, author of The Case for Passive Eugenics—have invested heavily in lobbying efforts to repeal the constitutional guarantee.

Such a repeal would allow them to fundamentally remake the American immigration system, blocking millions of American-born children from citizenship and reinstating a kind of discriminatory racial preference we haven’t seen since the racist exclusionary policies of the 1920s.