The Future of Birthright Citizenship: Constitutional Protection or Executive Power Overreach?

Written by Jane, Edited by Rishika

Vol 2, Issue 1 – January 2026

Abstract 

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        This paper examines the constitutional and political stakes of Barbara v. Trump (2025), a landmark case in which the Supreme Court wrestles with whether a president may unilaterally restrict birthright citizenship for children born in the United States to undocumented immigrants. The dispute arises from President Trump’s executive order targeting the Citizenship Clause of the Fourteenth Amendment, an unprecedented attempt to eliminate a constitutional guarantee that has defined what it means to be an American since Reconstruction [1]. By examining the history of jus soli, to the devastation of Dred Scott v. Sandford (1857) to the ratification of the Fourteenth Amendment and the Civil Rights Act of 1866, this paper seeks to explain how birthright citizenship emerged as a foundational protection for racial equality in the United States, and set it apart globally as one of the first modern nations to adopt BRC as a part of their constitution. It then analyzes United States v. Wong Kim Ark (1898), the Supreme Court decision that firmly established that all children born on U.S. soil are citizens regardless of parental immigration status. This paper demonstrates that the Fourteenth Amendment’s guarantee remains a critical safeguard against political attempts to redefine citizenship and that any reinterpretation of “subject to the jurisdiction thereof” requires constitutional, not executive, change. 

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Introduction

        In 2025, the Supreme Court agreed to hear Barbara v. Trump, a case questioning whether a president can restrict citizenship for children born in the United States to undocumented immigrants. The case emerged in response to President Trump’s executive order seeking to end automatic birthright citizenship for certain U.S. born children, an unprecedented challenge to a constitutional guarantee that has defined American identity for over 150 years. 

At the heart of this debate lies the principle of birthright citizenship, known in legal terms as jus soli, the “right of the soil.” This doctrine guarantees that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States [2].” It was written in direct response to the injustices of the pre–Civil War era, particularly the Supreme Court’s ruling in Dred Scott v. Sandford (1857), which denied citizenship to African Americans. By codifying jus soli, the framers of the Fourteenth Amendment sought to create a universal and inclusive definition of American citizenship, one based not on ancestry or race, but on the simple fact of birth within the nation’s borders. 

         For more than a century, this principle has been upheld as settled law, most notably in United States v. Wong Kim Ark (1898), which confirmed that the Fourteenth Amendment grants citizenship to nearly all individuals born on U.S. soil, regardless of their parents’ immigration status. Yet in recent years, this fringe decision has been drawn back into political contention. Modern efforts through executive orders and legal reinterpretations have attempted to narrow the meaning of “subject to the jurisdiction thereof,” suggesting that children of undocumented immigrants should be excluded from the Citizenship Clause’s protection. 

        These challenges raise questions of constitutional interpretation, and test the durability of Reconstruction’s promise in a twenty-first-century context defined by immigration. As new litigation and policy efforts attempt to redraw the boundaries of citizenship, the Fourteenth Amendment once again acts as a shield protecting the idea that equality begins with the simple, democratic fact of being born on American soil. 

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[1] Totenberg, Nina. “Trump Takes Birthright Citizenship to the Supreme Court.” NPR, 14 Mar. 2025, 

www.npr.org/2025/03/14/nx-s1-5327552/trump-takes-birthright-citizenship-to-the-supreme-court.

[2] Constitution Annotated, “Fourteenth Amendment Section 1 | Constitution Annotated | Congress.gov | Library of Congress,” constitution.congress.gov, n.d., https://constitution.congress.gov/browse/amendment-14/section-1/. 

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Historical Foundations of the Citizenship Clause 

        The Citizenship Clause of the 14th Amendment, as follows “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” emerged from one of the most important moments of American History, when the nation was attempting to reconstruct its foundation after the Civil War [3]. 

        Prior to the Civil War, the Constitution did not explicitly define national citizenship. The criteria involving who counted as an American was largely left to the states and courts, resulting in inconsistencies. Most notably, Dred Scott V Sandford of 1857. The decision, read by Chief Justice Roger Taney, stated that enslaved people were not citizens of the US, leaving them exempt from protection by the federal government. That a slave, Dred Scott, “who had resided in a free state and territory (where slavery was prohibited) was not thereby entitled to his freedom” [4]. He described African Americans as “beings of an inferior order” who “had no rights which the white man was bound to respect” [5]. This ruling excluded millions of people from the protections of the constitution and declared the Missouri Compromise, passed to balance power between non-slave and slave states, to be unconstitutional. 

        The Dred Scott decision provoked national outrage and heightened the antislavery movement. When the Civil War ended and slavery was abolished through the Thirteenth Amendment, the Reconstruction Congress sought to rebuild the South while redefining the meaning of American citizenship. Lawmakers recognized that unless citizenship itself was clearly defined in federal law, states could continue to deny newly freed people basic civil rights. Illinois Senator, Lyman Trumball, in particular believed “the abstract truths and principles” of the Thirteenth Amendment were useless “unless the persons who are to be affected… have some means of availing themselves of their benefits” [6]. In 1866 he introduced the first federal civil rights bill in The United State’s history. This bill was later vetoed by President Andrew Johnson on the claim that the “market forces would eventually resolve the issue” [7]. The veto enraged Congress “who had before it mountains of evidence of widespread mistreatment of African Americans” to act [8]. In response, Congress overroad Johnson’s veto and enacted the Civil Rights Act of 1866, declaring that “all persons born in the United States and not subject to any foreign power” were citizens [9]. However, legislators feared that a future Congress could repeal this statute, and therefore, moved to ensure its principles permanently in the Constitution. The Fourteenth Amendment was born. 

        The Dred Scott Decision exposed the legal void at the heart of the constitution, and the reality that securing one’s freedom was not enough to secure equality. Without constitutional recognition of birthright citizenship, the rights of formerly enslaved people remained vulnerable. In the aftermath of the Civil War, Congress sought to correct this failure. In 1868, when the Fourteenth Amendment was finally ratified, it went above solely reversing Dred Scott; it granted citizenship to all persons “born or naturalized in the United States” and extended all citizens “equal protection under the laws” [10]. Citizenship was no longer dependent on race, ancestry or discretion of state governments. It became a constitutional guarantee grounded in birth on U.S. soil. This principle jus soli or “the right of the soil” granted American Citizenship to anyone born on US territory, “regardless of their parent’s immigration status” [11]. It dates back to the English Common Law, which held that all persons born within the King’s dominions were his subjects, tying citizenship to place of birth. By adopting this framework, advocates for the 14th amendment rejected notions of racial citizenship known as jus sanguinis, or “right of blood” [12]. It ensured that all people born in the US shared equal legal status, binding the nation together under a single, inclusive definition of citizenship. 

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[3] Constitution Annotated, “Fourteenth Amendment Section 1

[4]  Melvin Urofsky, “Dred Scott Decision | Definition, History, & Facts,” in Encyclopedia Britannica, April 21, 2025, https://www.britannica.com/event/Dred-Scott-decision. 

[5] National Archives, “Dred Scott v. Sandford (1857),” National Archives (The U.S. National Archives and Records Administration, July 8, 2024), https://www.archives.gov/milestone-documents/dred-scott-v-sandford. 

[6] National Constitution Center, “Civil Rights Act of 1866, ‘an Act to Protect All Persons in the United States in Their Civil Rights, and Furnish the Means of Their Vindication’ | the National Constitution Center,” National Constitution Center – constitutioncenter.org, April 9, 1866, https://constitutioncenter.org/the-constitution/historic-document-library/detail/civil-rights-act-of-1866-april-9-1866-an-act-to-protect-all-persons-i n-the-united-states-in-their-civil-rights-and-furnish-the-means-of-their-vindication. 

[7] National Constitution Center, “Civil Rights Act of 1866, ‘an Act to Protect All Persons in the United States in Their Civil Rights, and Furnish the Means of Their Vindication’ | the National Constitution Center,” National Constitution Center – constitutioncenter.org, April 9, 1866, https://constitutioncenter.org/the-constitution/historic-document-library/detail/civil-rights-act-of-1866-april-9-1866-an-act-to-protect-all-persons-i n-the-united-states-in-their-civil-rights-and-furnish-the-means-of-their-vindication. 

[8] National Constitution Center, “Civil Rights Act of 1866, ‘an Act to Protect All Persons in the United States in Their Civil Rights, and Furnish the Means of Their Vindication’ | the National Constitution Center,” National Constitution Center – constitutioncenter.org, April 9, 1866, https://constitutioncenter.org/the-constitution/historic-document-library/detail/civil-rights-act-of-1866-april-9-1866-an-act-to-protect-all-persons-i n-the-united-states-in-their-civil-rights-and-furnish-the-means-of-their-vindication. 

[9] Scott Bomboy, “Revisiting the Birthright Citizenship Question and the Constitution | Constitution Center,” National Constitution Center – constitutioncenter.org, 2024, https://constitutioncenter.org/blog/revisiting-the-birthright-citizenship-question-and-the-constitution. 

[10] United States Senate, “U.S. Senate: Landmark Legislation: The Fourteenth Amendment,” www.senate.gov, 2024, https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm.

[11] Laila Khan, “The Origins of Birthright Citizenship in the United States, Explained - American Immigration Council,” American Immigration Council, 2024, https://www.americanimmigrationcouncil.org/blog/origins-birthright-citizenship-united-states-explained/. 

[12] Laila Khan, “The Origins of Birthright Citizenship in the United States, Explained - American Immigration Council,” American Immigration Council, 2024, https://www.americanimmigrationcouncil.org/blog/origins-birthright-citizenship-united-states-explained/.

The Legal Precedent: United States v. Wong Kim Ark (1898) 

        The Fourteenth Amendment’s Citizenship Clause established birthright citizenship in principle, but its full meaning was not tested until the Supreme Court’s decision in United States v. Wong Kim Ark (1898). This landmark case defined the constitutional boundaries of American citizenship and affirmed the principle of jus soli, that citizenship comes from birth on U.S. soil, not from ancestry or parental status. For over a century, Wong Kim Ark has stood as the basis of American citizenship law, shaping national identity. 

        Wong Kim Ark was born in 1873 in San Francisco, California, to Chinese immigrant parents who were permanent residents but not citizens of the United States. Under the restrictive Chinese Exclusion Acts of the late nineteenth century, they were legally barred from naturalization. In 1895, after visiting family in China, Wong attempted to reenter the United States but was denied admission by customs officials, who claimed he was not a U.S. citizen due to his parents’ nationality. 

        The Supreme Court was questioning whether a child born in the United States, to parents who, at the time of their birth, are subjects of the Emperor of China, becomes at the time of his birth a citizen of the United States because of the protections provided by the first clause of the Fourteenth Amendment. Wong Kim Ark’s challenge to his exclusion forced the Supreme Court to decide whether the promise of the Citizenship Clause applied universally, or whether it could be limited based on ancestry or immigration status. 

        The central legal issue before the Court was whether Wong Kim Ark was a citizen “within the meaning of the Fourteenth Amendment,” despite his parents’ foreign allegiance. The federal government argued that because Wong’s parents remained subjects of China, he inherited their foreign status through jus sanguinis (the “right of blood”). They contended that the phrase “subject to the jurisdiction thereof” excluded the children of foreigners, particularly those whose governments maintained diplomatic relations or treaties with the United States. 

        Wong’s attorneys, however, argued that the framers of the Fourteenth Amendment had deliberately chosen jus soli as the rule of citizenship, consistent with English common law and with the framers’ intent in 1868. They maintained that Wong was “subject to the jurisdiction” of the United States from birth because he was required to obey its laws, regardless of his parents’ nationality. Thus, by virtue of his birth in San Francisco, Wong was constitutionally a citizen. 

        In a 6–2 decision written by Justice Horace Gray, the Supreme Court ruled in favor of Wong Kim Ark, holding that he was indeed a U.S. citizen. The Court grounded its reasoning firmly in the English common law tradition that the Fourteenth Amendment had codified. Justice Gray explained that the phrase “subject to the jurisdiction thereof” referred to being subject to the laws and authority of the United States, not to political allegiance or racial origin. Only limited exceptions applied: children of foreign diplomats, enemy occupiers, or members of sovereign Native nations. 

Gray’s opinion sought to show that the Fourteenth Amendment “affirms the ancient and fundamental rule of citizenship by birth within the territory,” unless specific and narrow exceptions applied. The ruling thus established jus soli, citizenship by birthplace, as the constitutional standard for determining national membership. In doing so, the Court explicitly rejected the government’s attempt to reinstate jus sanguinis into American law, confirming that the Citizenship Clause’s protection extended to all persons born on U.S. soil under U.S. jurisdiction, including the children of immigrants. 

IV. Contemporary Challenges and Political Context 

        The Constitutional guarantee of birthright citizenship, and the landmark US v. Wong Kim Ark now finds itself at the center of renewed political and legal controversies. In recent years, the question of who is a citizen has been contested because politicians and proposals have sought to challenge and reintercept it. 

        Upon taking office for his second term, Donald Trump issued several executive orders, one of which entitled Protecting the Meaning and Value of American Citizenship, touched on birthright citizenship. The 14th Amendment says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States" (Totenberg) Trump, however, has consistently maintained that automatic citizenship does not exist for all children born on U.S soil. According to his administration, “the Fourteenth Amendment’s protections should not extend to the children of unauthorized immigrants or those in the country on a temporary visa”[13]. His order directs federal agencies to halt their issuing of citizenship documents for children born after February 19. This reinterpretation of the Citizenship clause is “widely considered a fringe view” because in the past 127 years the decision has been left untouched [14]. 

        Federal Judges wasted no time blocking the President’s executive orders, and three separate appeal courts have refused to unblock the orders. Judge John Coughenour, a Reegan appointee out of Seattle, was the first judge to grant a temporary hold on the policy, calling the President's efforts “blatantly unconstitutional” [15]. “It has become ever more apparent that to our president, the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate around or simply ignore, whether that be for political or personal gain,” Coughenour said. “Nevertheless, in this courtroom and under my watch, the rule of law is a bright beacon which I intend to follow.” Coughenour has served on the bench for over four decades and “can’t remember another case where the question presented was as clear” [16]. Attorney General Lane Polozola, for the state of Washington, told the judge that “births cannot be paused”[17] while the case is under the court’s consideration. He emphasized that “Babies are being born today here, and in the plaintiff states and around the country, with a cloud cast over their citizenship” [18]. Polozola fears the “long-term substantial negative impacts” children denied citizenship will face [19]. 

        Twenty-two states have filed lawsuits challenging Trump’s executive order, with four, Arizona, Illinois, Oregon, and Washington, joining the case assigned to Judge Coughenour. A separate lawsuit, filed on behalf of three pregnant immigrant women, was also assigned to him. Coughenour issued a longer-term preliminary injunction arguing if the Government wishes to change birthright citizenship “it needs to amend the Constitution itself” [20]. 

        Civil rights organizations made similar efforts to strike down the President's executive order. On June 27, The Supreme Court decided on the case of Trump v. Casa, a challenge to Executive Order 14160. The plaintiffs argued the President cannot override the Constitution through an executive order, citing cases such as Youngstown Sheet & Tube Co. v. Sawyer (1952), the “Steel Seizure Case”, as precedent that the President cannot act contrary to explicit constitutional provisions. The district Court granted a preliminary injunction blocking enforcement of the executive order nationwide. The government appealed, and the Supreme Court later limited the scope of the injunction (allowing partial enforcement in some jurisdictions). In the majority opinion the court expressed that these nationwide injunctions exceed judiciary power unless necessary to provide the plaintiff with “complete relief” [21]. Hours after The Supreme Court's decision was released, Barbara V. Trump was filed by the American Civil Liberties Union. The class action lawsuit, similar to a nationwide injunction, was seen as the best possible method to block the order. The lawsuit called on the U.S District Court for the District of New Hampshire to issue a class-wide injunction protecting all individuals whose rights may be impacted by the Executive Order 14160. On July 10, 2025 Judge Joseph Laplante granted the ACLU’s request, certified a class consisting of born and unborn children who would lose their citizenship under the administration’s policy, and issued a preliminary injunction preventing enforcement of the order against that class. 

[13] Rachel Reed, “Can Birthright Citizenship Be Changed? - Harvard Law School,” Harvard Law School, January 24, 2025, https://hls.harvard.edu/today/can-birthright-citizenship-be-changed/.

[14] Totenberg, Nina. “Trump Takes Birthright Citizenship to the Supreme Court.”

[15] Tierney Sneed, “Judge Blocks Trump’s ‘Blatantly Unconstitutional’ Executive Order That Aims to End Birthright Citizenship,” CNN, January 23, 2025, https://www.cnn.com/2025/01/23/politics/birthright-citizenship-lawsuit-hearing-seattle. 

[16] Tierney Sneed, “Judge Blocks Trump’s ‘Blatantly Unconstitutional’ Executive Order That Aims to End Birthright Citizenship,” CNN, January 23, 2025, https://www.cnn.com/2025/01/23/politics/birthright-citizenship-lawsuit-hearing-seattle. 

[17] Tierney Sneed, “Judge Blocks Trump’s ‘Blatantly Unconstitutional’ Executive Order That Aims to End Birthright Citizenship,” CNN, January 23, 2025, https://www.cnn.com/2025/01/23/politics/birthright-citizenship-lawsuit-hearing-seattle. 

[18] Tierney Sneed, “Judge Blocks Trump’s ‘Blatantly Unconstitutional’ Executive Order That Aims to End Birthright Citizenship,” 

[19] Elfren Olivares, “Analyzing the Supreme Court’s Dangerous Decision in Trump v. CASA,” NILC, June 27, 2025, https://www.nilc.org/articles/analyzing-scotus-trump-v-casa/. 

[20] Tierney Sneed, “Judge Blocks Trump’s ‘Blatantly Unconstitutional’ Executive Order That Aims to End Birthright Citizenship,” CNN, January 23, 2025, https://www.cnn.com/2025/01/23/politics/birthright-citizenship-lawsuit-hearing-seattle. 

[21] Elfren Olivares, “Analyzing the Supreme Court’s Dangerous Decision in Trump v. CASA,” NILC, June 27, 2025, https://www.nilc.org/articles/analyzing-scotus-trump-v-casa/. 

Findings 

         President Trump cannot legally overturn birthright citizenship because the Constitution leaves him no authority to do so. The 14th Amendment states 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” a guarantee adopted to end the racial caste system upheld in Dred Scott [22]. For more than 125 years, the Supreme Court has consistently affirmed this interpretation, most notably in United States v. Wong Kim Ark (1898), which held that birthright citizenship is “ancient and fundamental,” and again in Plyler v. Doe (1982), which confirmed that even undocumented immigrants and their children fall under U.S. jurisdiction. President Trump’s claim that the children of undocumented immigrants are not “subject to the jurisdiction” of the United States contradicts the 14th Amendment and settled court findings. Only narrow exceptions, such as the children of foreign diplomats, fall outside its scope. Unsurprisingly, multiple federal courts immediately blocked Trump’s order, some even going as far as describing it as blatantly unconstitutional. Even the current Supreme Court, despite asking lower courts to reconsider the breadth of nationwide injunctions, has not questioned the order’s unconstitutionality. Because birthright citizenship is rooted in the Constitution’s text and has been reinforced by over a century of binding precedent, President Trump cannot legally revoke it. 

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[22] Constitution Annotated, “Fourteenth Amendment Section 1

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Conclusion 

         Birthright Citizenship is a constitutional guarantee, founded on the core principles of what it means to be an American. For over a century the Supreme Court has upheld that this guarantee applies to all persons born on U.S. soil, regardless of their parents’ status. Attempts to undermine this principle, such as President Trump's, Protecting the Meaning of American Citizenship executive order carry both legal and moral consequences. From a legal standpoint, efforts to reinterpret language in the 14th amendment defy precedent that has been upheld since the amendment was crafted.