Crisis for Birthright Citizenship – Trump’s Executive Order sparks Controversy

Link to all Predisent Donald Trump’s Executive Order on the White House Website:

Presidential Actions; The White House

I.  Trump bombards the world with Executive Orders on his first day back in the Oval Office

On January 20, 2025 U.S. Eastern Time, Donald J. Trump returns to the Oval Office as he was sworn in as the 47th President of the United States. President Trump swiftly signed 46 Executive Orders on the first day he took office, and has been continuously churning out more and more Executive Orders on a daily basis. These Executive Orders cover a wide range of topics, ranging from declassifying dubious documents to combatting illegal immigration. Among these wide array of topics, one specific order held the focus of global public discourse – Executive Order 14160.

II.  Trump’s long-standing plan to end birthright citizenship

As of February 11, 2025, there is only one Executive Order signed by the Trump Administration that opens the possibility of curtailing the legitimate interest of legal immigrants. Specifically, Executive Order 14160 (Protecting the Meaning and Value of American Citizenship) intends to effectively terminate birthright citizenship in the United States.

Direct link to Executive Order 14160:

Protecting The Meaning And Value Of American Citizenship – The White House

Executive Order 14160 can be summarized as follows:

Starting February 20, 2025, children born within United States territory cannot obtain citizenship of the United State if the parents’ status is one of the following:

• neither parent is a citizen or lawful permanent resident of the United States; or
• the parents’ residency in the United States are based solely on temporary means (Student visa, temporary work visa, tourism visa, and visa-free entry etc.).

Executive Order 14160 drew unprecedented attention even among all the other controversial orders signed by the Trump Administration, since this order aims to irreversibly abridge birthright citizenship enshrined in the 14th Amendment. In order to justify this legally dubious order, the Trump Administration focuses on the text of the 14th Amendment. The 14th Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”. The Trump Administration rests its interpretation of the 14th Amendment on a single sentence, namely “…subject to the jurisdiction thereof….” The Trump Administration argues that only individuals with lawful and permanent status in the United States are in fact subject to the jurisdiction of the United States, as such, undocumented immigrants, illegal aliens, and individuals with temporary status are, from a constitutional standpoint, beyond the jurisdiction of the United States Government. Following this line of logic, children of undocumented immigrants, illegal aliens, and individuals with temporary status that were born in the United States are excluded from obtaining U.S. citizenship status.

Despite the obvious shock value of Executive Order 14160, Trump’s desire to end birthright citizenship has been years in the making and traces of his intend can be observed all the way back prior to his first presidency. In 2015, when Donald Trump was gearing up for his first presidential campaign, he told the then Fox News host Bill O’Reilly that he was exploring the possibility of terminating birthright citizenship and all that would be needed to accomplish this task was “an act of Congress.” President Trump’s then statement in 2015 is legally sound, since under the separation of powers arrangement of organizing the federal government, only the legislative branch possesses the legal authority to pass a bill that amends the U.S. Constitution. However, the possibility of Congress passing a bill terminating birthright citizenship is, under the current political climate, an impossibility. Ever since the Obama Administration, Congress has been stuck in a deadlock for nearly two decades, escalating divisions along party lines has left any legislative efforts with even mild political or social controversies stranded in Congressional bickering and legislative limbo. This seemingly insurmountable obstacle may have resulted in Trump’s inaction during his first term.

On the other hand, there was a visible pivot by Trump towards a different strategy during his first term in office. In 2018, during an interview with Axios, Trump revealed that he was informed by White House counsel that birthright citizenship can be terminated with a simple executive order, completely circumventing Congress. The legal consensus then was that Trump cannot simply end birthright citizenship via an executive order, and if he did, it would very likely be overturned by federal courts. Nonetheless, Trump continued to express his plan to terminate birthright citizenship using executive order during the remainder of his first term, but he never took any meaningful action. Gradually, the public’s attention was overtaken by more explosive incidents by the end of 2020.

Fast forward to 2024, Trump was deep into his second presidential campaign. Trump was more confident, more steadfast, and much more politically entrenched to realize his vision for the United States going forward, fully addressing all the goals that he couldn’t accomplish during his first term. On his campaign trail, Trump expressed in multiple interviews, rallies, and social media posts that he is reviving an old promise, that on Day 1 of the new term as president, he would issue an executive order terminating birthright citizenship for children born to parents staying in United States illegally or temporarily. This is part of his larger campaign promise to secure the borders and put an end to the Biden Administration’s so called laissez-faire immigration policy. And this time, Trump fulfilled his promise.

III. A brief history of birthright citizenship and the 14th Amendment

By issuing Executive Order 14160, Trump has essentially amended the 14th Amendment. The content of Executive Order 14160 is in direct contradiction with the 14th Amendment. The text of the 14th Amendment was drafted with a very specific historical and political context, which shaped the judicial interpretation of birthright citizenship in the years to follow.

Historically, the 14th Amendment was drafted as a direct response to the American Civil War. Before the war, nearly all African Americans were enslaved by the Southern states. Since people of African descent were largely enslaved and were only considered as chattel, they were systematically excluded from obtaining U.S. citizenship. In 1857, the notorious U.S. Supreme Court case Dred Scott v. Sandford reflected the inhumane attitude towards people of African descent by the highest court of the land during the pre-war period. In Dred Scott v. Sandford, an African slave from Virginia named Scott was sold to an army doctor and was subsequently brought to another state in which slavery was illegal. Scott thus filed a suit in federal court demanding freedom for himself and his family. The case eventually reached the U.S. Supreme Court. The Justices of the U.S. Supreme Court ruled against Scott, denying his request for freedom. The Justices reasoned that the legal status of people of African descent as human chattel excluded them from obtaining U.S. citizenship. Without the status as an U.S. citizen, federal courts can exercise no jurisdiction over people of African descent.

After the American Civil War, all slaves were guaranteed freedom on paper. However, the legal status of these former slaves remained dubious, they were simultaneously free and yet without a nationality. Therefore, Congress passed the 14th Amendment in 1868 to bestow U.S. citizenships upon former slaves. In order to neutralize the dreaded influence of the Dred Scott case, the 14th Amendment mandates that all persons born within the United States, regardless of their parents’ status, shall become citizens of the United States. The Amendment was constructed in a way that should, in theory, cover all former slaves in the United States, since all former slaves were born in the United States by 1868 (the Act Prohibiting Importation of Slaves of 1807 has, in theory, terminated the Atlantic slave trade after January 1, 1808).

Moreover, the U. S. Supreme Court followed up with a subsequent landmark case United States v. Wong Kim Ark, stating that the 14th Amendment applies to all persons born within the United States (excluding narrow cases such as children of foreign diplomats or enemy soldiers), regardless of race, are subject to United States jurisdiction and thus U.S. citizens. This landmark case affirmed the principle of jus soli (right of the soil) as a fundamental aspect of U.S. nationality law, contrasting with the principle of jus sanguinis (right of the blood) adopted by many other countries, under which children’s citizenship status rests upon their parents’ nationality.

IV.  Backlash to Executive Order 14160 ensues

Considering the historical and political context of the 14th Amendment, combined with relevant judicial interpretations, it is clear how Executive Order 14160 immediately drew the ire of legal scholars, democrats, and human rights organizations. Trump Administration intends to include additional considerations regarding the parents’ immigration status when determining whether children born in the United States shall obtain citizenship status, in effect shifting U.S. nationality law to a jus sanguinis model. This is in direct contradiction with the historical purpose and judicial interpretation of the 14th Amendment, overturning a cornerstone in American citizenship jurisprudence. In addition, long-standing consensus in the legal community is that executive orders can only address issues not directly regulated by written laws or existing jurisprudence. Therefore, it is rather obvious that Executive Order 14160 has breached this constraint, extending presidential power beyond its constitutional limit.

As such, it is rather predicable that numerous lawsuits against Executive Order 14160 arose almost immediately after it was signed by the Trump Administration. As of February 11, 2025, 22 blue states and more than half a dozen civilian organizations brought suits against Trump’s executive order, stating constitutional challenge. Federal judge in the State of Washington has issued an emergency injunction against Executive Order 14160 for “obvious constitutional violations,” and issued a damning statement questioning the integrity of Trump’s counsel. The Federal judge stated that any legal professional in the United States shall find Executive Order 14160 a blatant violation of the 14th Amendment. Moreover, Federal judge in the State of Maryland produced a ruling on February 5, 2025, to indefinitely block Executive Order 14160. The Trump Administration has issued statement demonstrating intend to appeal the rulings, but no concrete action has been taken.

V.  Final remarks

Lawsuits surrounding Executive Order 14160 are likely to persist for an extended period. The whole process of constitutional challenge starts at Federal District Courts, but rulings issued by Federal District Courts will most definitely not de-escalate the situation. Challenges against Executive Order 14160 will likely be appealed all the way to the U.S. Supreme Court, and the legality of Executive Order 14160 shall be finally determined by the Justices of the Supreme Court. It should be noted that despite strong constitutional challenges to Trump’s executive order, the outcome of the case may not be accurately predicted at the current stage. As political divisions between Democrats and Republicans along party lines reached the highest level since the American Civil War, conventional legal wisdom may not be as meaningful as it has been in the past. The Trump Administration would undoubtedly put its faith in the Republican-leaning Justices on the bench, outnumbering the Democrat-leaning Justices 6 to 3, to rule in its favor. Recent trend of the Supreme Court, such as the overturning of Roe v. Wade in 2022, singled the possible dawn of a new era which the U.S. Supreme Court is more likely to produce “right-leaning” rulings instead of progressive ones. As such, it is still too early to determine the future trajectory of Executive Order 14160.

Despite the murky standing of Executive Order 14160, there are two significant upsides for applicants of lawful permanent residency under EB categories. First, Executive Order 14160, though not completely certain, has a significant possibility of being struck down by the U.S. Supreme Court for prima facie violation of the 14th Amendment. Second, even if Executive Order 14160 survived the scrutiny of the courts, there exists a significant carve-out within the executive order for lawful permanent residents. Namely, children born to parents that are lawful permanent residents will not be affected by Executive Order 14160. Therefore, we can arrive at a definite conclusion in such a volatile time, that legal immigration under EB categories is still very much preferred by the Trump Administration and has remained a stable pathway for interested applicants.