Washignton — President Donald Trump’s executive order to end birthright citizenship in the U.S. has ignited a legal and political debate, raising questions about the 14th Amendment to the U.S. Constitution and the extent of presidential power.

The amendment guarantees citizenship to anyone born on U.S. soil.

“We’re the only country in the world that does this with birthright, as you know. And it’s just absolutely ridiculous. But, you know, we’ll see. We think we have very good grounds and certain people have wanted to do this for decades,” Trump said while signing the executive order on his first day in office.

The United States is one of about 30 countries that grant automatic citizenship to individuals born on their soil, including Brazil, Mexico, and Canada, among others. The practice is known as jus soli (Latin for “right of the soil”). But the U.S. remains notable for its broad application of unconditional jus soli, as enshrined in the 14th Amendment.

Are there limits to 14th Amendment?

The amendment, ratified in 1868, was designed to address citizenship questions following the U.S. Civil War and to overrule the Supreme Court’s 1857 Dred Scott decision, which denied African Americans citizenship.

The text reads: “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.”

“This language ratifies the traditional understanding that anyone born in the United States is automatically a citizen,” John Yoo, a professor at University of California Berkeley Law School and visiting fellow at the Hoover Institute, told VOA in a phone intervie

However, critics argue that the phrase “subject to the jurisdiction thereof” implies that at least one parent must be a U.S. citizen for a child to be granted citizenship.

According to Yoo, this interpretation aligns more closely with the European jus sanguinis, or “law of blood” approach, which ties citizenship to parentage rather than birthplace.

“To me, that just doesn’t make sense of the language of the 14th Amendment and historical practice,” Yoo said. “The Supreme Court, in cases like United States v. Wong Kim Ark, has consistently interpreted the amendment to mean birthright citizenship.”

Critics of Trump’s executive order say the 14th Amendment is a cornerstone of civil rights in the United States.

“The 14th amendment, it was created to give birthright citizenship. … Constitutional rights cannot be taken away by a president. They can only be taken away by Congress, and thus the executive order is illegal,” said Tuyet Duong, an immigration lawyer and policy expert with the National Asian Pacific American Women’s Forum.

However, supporters of the executive order argue a more limited interpretation of the amendment is warranted.

“President Trump has made it clear that restoring fairness to our immigration system and defending the true intent of the 14th Amendment are central to his vision of making America great again,” Republican Congressman Brian Babin of Texas, told reporters during a press conference last Thursday.

Amy Swearer, a senior legal fellow at The Heritage Foundation, a conservative think tank, wrote in a report in 2019 that there is good reason for the United States to reconsider its long-standing policy of automatically granting citizenship to everyone born on U.S. soil.

Swearer argued that the 14th Amendment was intended to give birthright citizenship only to those U.S.-born children whose parents were “like the freed slaves, subject to the complete jurisdiction of the United States. In a modern immigration context, this would mean that the Constitution only mandates birthright citizenship for the U.S.-born children of citizens, nationals, and lawful permanent residents.”

Legal challenges

Trump’s executive order is facing significant legal challenges, with multiple lawsuits in progress. Twenty-two Democratic-led states have filed a lawsuit arguing the order violates the 14th Amendment.

A federal judge in Seattle has temporarily stopped the birthright citizenship order from taking effect. Last Thursday, U.S. District Judge John C. Coughenour of Seattle temporarily blocked it, describing it as “blatantly unconstitutional.”

But if the case reaches the Supreme Court, the outcome could reshape the nation’s understanding of citizenship.

If the court were to side with Trump, the most immediate impact will be on newborns and those yet to receive birth certificates and Social Security numbers. And questions about retroactive application would arise.

“Figuring out how this rule would operate retroactively is extremely complex. Would it deny citizenship to people born here historically without citizen parents? How far back would it go? These are precisely the issues the 14th Amendment was designed to avoid,” Yoo told VOA.

While much of the focus is on judicial challenges, Yoo pointed out that Congress could settle the issue legislatively.

“Congress could extend birthright citizenship by statute, reaffirming the traditional understanding. But it’s unclear what Congress might do in this politically charged environment,” Yoo said.

Still, he believes the Supreme Court would uphold birthright citizenship.

“The text of the 14th Amendment, its history, and consistent Supreme Court rulings all point to birthright citizenship,” he said.
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