Why Trump's challenge to birthright citizenship could set the ground for a legal battle

On January 20, immediately after taking the oath of office for his second term, President Donald Trump signed a series of executive orders that have the potential to reshape American society and politics. Among the most controversial is an order targeting the reinterpretation of the 14th Amendment to the United States Constitution, particularly its guarantee of birthright citizenship. This principle, which grants citizenship to nearly all individuals born on American soil, has been a cornerstone of American citizenship law since the amendment’s ratification in 1868. Trump's executive action has reignited debates about immigration, constitutional interpretation and the meaning of American identity.

The 14th Amendment emerged in the transformative post-Civil War era, addressing the citizenship status of formerly enslaved individuals. Prior to its ratification, African Americans were often denied citizenship. The amendment’s framers sought to dismantle this exclusionary system, declaring that "all persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." This established the principle of jus soli, or citizenship by birthplace, with narrow exceptions for children of foreign diplomats, enemy soldiers or those aboard foreign ships.

Legal scholar Cristina Rodríguez has described the 14th Amendment as America’s “constitutional reset button,” aimed at eradicating entrenched systems of caste and subordination. By guaranteeing equal treatment under the law, the amendment laid the foundation for dismantling societal hierarchies based on race or background. Its implications extended beyond civil rights, shaping immigration and citizenship policies in the decades that followed.

The 14th Amendment’s guarantee of birthright citizenship was clarified in the landmark Supreme Court case United States v. Wong Kim Ark (1898). Wong, born in California to Chinese immigrant parents who were ineligible for naturalisation, was denied re-entry to the United States after a visit to China. The Supreme Court ruled in his favour, affirming that the 14th Amendment guaranteed citizenship to all individuals born on US soil, irrespective of their parents’ immigration status.

Justice Horace Gray, writing for the majority, emphasised that removing birthright citizenship would undermine the foundational principles of American democracy. He noted that the phrase “subject to the jurisdiction thereof” was intended to exclude only a limited group, such as children of foreign diplomats or enemy soldiers and not the children of immigrants.

This ruling set a critical precedent during a period of mass immigration. Between 1870 and 1900, approximately 12 million immigrants, primarily from Europe, arrived in the United States. The decision in the Wong case reinforced the inclusive principle of birthright citizenship, solidifying the US’s identity as a nation of immigrants. Subsequent cases, such as Plyler v. Doe (1982), further extended protections to children of undocumented immigrants, underscoring the enduring relevance of the 14th Amendment.

Despite its historical significance, birthright citizenship has faced sustained opposition. During the early 20th century, American women who married foreign nationals could lose their citizenship—a law in effect from 1907 to 1922. Indigenous Americans, similarly excluded, only gained citizenship through the Indian Citizenship Act of 1924.

In the modern era, the debate has centred on the children of undocumented immigrants. In the 1980s, Yale professors Peter H. Schuck and Rogers M. Smith argued that the 14th Amendment might not apply to these children. Although their argument was primarily academic, it gained traction among conservative politicians. In 1991, Republican Congressman Elton Gallegly of California introduced legislation to limit the scope of birthright citizenship, citing its alleged strain on public resources. While the proposal failed, it popularised terms like “anchor babies” and inspired further efforts to reinterpret the amendment.

During his first term, Trump repeatedly criticised birthright citizenship, calling it “ridiculous” and advocating for its termination. His 2018 proposal to end it via executive order faced widespread legal criticism, with scholars arguing that such a move distorted the 14th Amendment’s original intent. The Congressional Research Service reaffirmed that birthright citizenship is constitutionally guaranteed, citing over a century of legal precedent.

Birthright citizenship is increasingly rare among developed nations. Of the world’s 20 most advanced economies, only the United States and Canada still uphold jus soli. Countries like the UK, Australia and Ireland have shifted to ancestry-based citizenship laws, often citing concerns about immigration and national identity. These shifts reflect broader anxieties about demographic change and cultural integration. With record migration levels—over two million annual encounters reported along the Mexican border in recent years—the US is grappling with similar challenges. Trump’s executive order taps into these concerns, but its legal viability remains uncertain.

Efforts to alter birthright citizenship face significant hurdles. A constitutional amendment would require approval by two-thirds of both houses of Congress and ratification by three-fourths of the states—an unlikely scenario in the current political climate. Legal experts argue that executive actions attempting to redefine citizenship are likely to be struck down by the courts. Overturning the Wong decision would not only defy longstanding precedent but also challenge fundamental principles of American democracy.

Critics of Trump’s order have vowed to fight its implementation. “We are prepared to sue, and so are many others,” said Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project. Democratic attorneys general are also preparing for a legal showdown. New Jersey Attorney General Matthew Platkin spoke to CNN about his personal stake in the battle, noting how Trump’s executive action could affect his wife, the daughter of Chinese immigrants born in Philadelphia. California Attorney General Rob Bonta dismissed Trump’s arguments as “extremist” and legally baseless.

The debate over birthright citizenship cuts to the heart of America’s identity as a nation of immigrants. While Trump’s executive order has energised conservative efforts to reinterpret the 14th Amendment, it faces formidable legal and political challenges. Advocates for birthright citizenship argue that the historical context, constitutional text, and legal precedent are unequivocal.

"The historical context is clear. The constitutional text is unambiguous. The longstanding precedent is irrefutable,” said Wofsy. “We are confident that, in the end, the constitution will prevail, and all individuals born here will continue to enjoy recognition as US citizens.”