Update: A federal judge on Feb. 5, 2025, issued a second temporary pause on President Trump’s executive order that aims to limit the right to citizenship for children born in the United States, according to the Associated Press. Read more.
Within hours of taking office, President Donald Trump signed an executive order to revoke birthright citizenship – a right that automatically grants citizenship to anyone born in the United States.
The policy is one of many Trump campaigned on. But implementing it won’t be as easy as signing an order.
The order seeks to deny automatic citizenship for children born on U.S. soil to undocumented parents or for children whose parents are in the country on temporary visas.
But birthright citizenship is enshrined in the U.S. Constitution through the 14th Amendment and could only be reversed with a two-thirds majority vote in the Senate and House of Representatives.
Trump’s move has already faced legal challenges. Attorneys general from 22 states, including California, have filed a lawsuit to challenge the order. On Thursday, a federal judge in Seattle temporarily blocked the executive order, calling it “blatantly unconstitutional.”
Cara Jobson, a California-based immigration lawyer, is confident the order will be struck down in the courts but says the move could be the start of new challenges from this administration.
“We have a president who has a good bit of power but is not a king,” Jobson said. “He can’t change the statute and he certainly can’t change the Constitution.”
We’re answering some of the most pressing questions about birthright citizenship and asked Jobson to weigh in.
What does the order state?
The executive order Donald Trump signed on Jan. 20 declared that people born in the U.S. are not entitled to automatic citizenship if their parents are “unlawfully present in the United States” or “lawful but temporary” residents on temporary visas.
However, such a change would have to be amended in the U.S. Constitution through a congressional vote. Trump’s order also instructed government agencies to stop issuing documents recognizing U.S. citizenship, such as social security cards or passports, to those in question born after Feb. 19, 2025.
Does this affect children born before February 19, 2025?
The order is not retroactive. A person who already has citizenship documents should not be affected by this order, Jobson says.
As mentioned above, the order only applies to people born in the U.S. after 30 days from the date of the order, which is Feb. 19, 2025. It is still unclear at this time if the courts will uphold Trump’s challenge to end birthright citizenship.
The federal government is facing lawsuits over the order, what happens in the meantime?
This will depend on the court’s response to the coalition of attorneys general that launched the lawsuit challenging Trump’s executive order.
California Atty. Gen. Rob Bonta asked the court for a preliminary injunction to stop the order from taking effect and honor birthright citizenship while litigation proceeds. Jobson also points out that given the unconstitutionality of the order, it is likely the courts will put a hold on the demands of the order.
What happens if one parent is a U.S. citizen or legal resident, and one is undocumented?
The newborn gets citizenship, Jobson said. The order as written only appears to apply where both parents are undocumented or where the parent giving birth is only on a temporary visa (the order only specifies “mother”). If one of the parents is a U.S. citizen or lawful permanent resident, then the newborn is a citizen by birth.
What if you’re on a temporary visa when you give birth?
Currently, those born on U.S. soil while the parent giving birth is on a temporary travel, student or work visa, are citizens. If birthright citizenship were to be revoked, that would end.
In his executive order, Trump has suggested that newborns are not citizens if the “parent giving birth”mother” is on a temporary visa, and the other parent is undocumented (the order specifies “father”).
What do supporters say about this?
Supporters of the executive order argue that the children of undocumented immigrants can’t be citizens because they aren’t “subject to the jurisdiction” of the United States.
Traditionally, that language has only applied to very particular circumstances like diplomats who have immunity, according to Jobson. However, undocumented immigrants are required to follow laws and pay taxes while they are in the U.S.
What’s next?
If courts decide the Constitution protects birthright citizenship, then only an amendment could change it. The last amendment to the Constitution was in 1992.
Next is to watch what happens with the litigation, Jobson said. It will be up to the courts how departments and agencies proceed after Feb. 19.
Editor’s Note: This post was updated on Thursday, Jan. 23 to reflect that a federal judge temporarily blocked President Trump’s executive order on birthright citizenship.
The topic has been widely discussed in U.S. politics, and your explanation of its legal background and implications makes it much easier to understand.
I really appreciated how you outlined the historical context of the 14th Amendment and its role in guaranteeing birthright citizenship. Many people may not be aware of how deeply rooted this principle is in American law, and your article does a great job of clarifying its significance.
Your discussion on the potential impact of changes to birthright citizenship was particularly interesting. The possibility of modifying this long-standing right would have major legal and social consequences, especially for immigrant families and communities across the U.S.
Additionally, the way you addressed different perspectives and political viewpoints makes this a balanced and informative read. Immigration policy is a complex issue, and it’s important to consider the broader implications of any proposed changes.
Thanks for sharing such a thought-provoking and well-explained article! It’s a must-read for anyone interested in U.S. immigration laws and constitutional rights.