President Donald Trump’s recent executive order seeking to end birthright citizenship for children of non-citizen parents has faced immediate legal pushback.
Multiple federal judges, including those in Washington State, Maryland, New Hampshire, and Massachusetts, have issued nationwide injunctions, ruling the order unconstitutional under the 14th Amendment.
The amendment, passed in 1868, explicitly grants citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
The Trump administration argues that the clause has been misinterpreted and that the federal government has the authority to restrict birthright citizenship through executive action. Some conservative legal scholars, like Edward Erler, believe that the phrase “subject to the jurisdiction thereof” was not meant to apply to children of non-citizen parents.
Similarly, John Eastman, a law professor and Claremont Institute fellow, argues that Wong Kim Ark (1898), which granted birthright citizenship to children of legal immigrants, does not apply to undocumented immigrants. He contends that the 14th Amendment has been misinterpreted and does not guarantee automatic citizenship for all U.S.-born children.
Currently, the Trump administration faces a lengthy legal fight. The U.S. Courts of Appeals will first review the rulings, and if they uphold the injunctions, the case is likely to reach the Supreme Court. If the Court declines to hear the case, the executive order will remain permanently blocked.
Newsweek has reached out to legal experts to analyze whether Trump’s executive order truly contradicts the 14th Amendment and, if so, to clarify the legal reasoning behind such a determination.
From Professor Richard Alba: Trump’s Birthright Citizenship Order Could Create a Class of Americans Lacking Rights
The birthright citizenship in 14th Amendment, intended to settle the question of the rights of emancipated African Americans, has served as a guarantee ever since that inferior legal status could not be inherited. That will no longer be true if Trump has his way.
If successful, the attempt to reinterpret the meaning of the phrase, “subject to the jurisdiction thereof,” could create a class of Americans permanently lacking the full panoply of rights associated with citizenship and therefore subject to exploitation and social inferiority. Such a change would undermine our ideal of the United States as a society where anyone with talent and ambition can climb the social ladder.
Richard Alba, Distinguished Professor of Sociology, emeritus, The Graduate Center, CUNY, Member, National Academy of Sciences.
From Cody Wofsy: Trump’s Birthright Citizenship Order Is Legally and Historically Baseless
The purpose of the Citizenship Clause was to repudiate the shameful decision in Dred Scott and enshrine in the Constitution the ancient principle of universal birthright citizenship. Apart from a few well understood exceptions, none of which is relevant today, the plain text of the Clause guarantees citizenship to everyone born on U.S. soil.
Proponents and opponents of the Clause agreed that it would recognize the children of immigrants as U.S. citizens—they just disagreed about whether that was a good idea.
Trump’s new “interpretation” of the Citizenship Clause is really an effort to rewrite one of our most fundamental constitutional principles by executive dictate. The arguments the government has offered are not only legally and historically baseless, but were directly rejected by the Supreme Court over 125 years ago.
Four courts have now enjoined the order, and have taken the unusual step of ruling from the bench in each case. That underscores both how critical birthright citizenship is to our values as a nation, and how egregiously illegal this assault on our Constitution is.
Cody Wofsy, Deputy Director, American Civil Liberties Union, Immigrants’ Rights Project, California.
From Dr. Michael Kagan: Trump’s Birthright Citizenship Order is An Ugly Attempt To Expel Non-white People From The U.S.
Birthright citizenship was the norm in Anglo-American law even before the Civil War. The 14th Amendment enshrined long-standing law to ensure that it would be protected for newly freed slaves. Much as on climate change, there may be an effort to gin-up a manufactured debate to legitimize a very ugly attempt to challenge the Constitution and to expel mostly non-white people from the country. But this is not a close call for any serious attorney or legal scholar.
Michael Kagan, Joyce Mack Professor of Law/Director, UNLV Immigration Clinic, William S. Boyd School of Law, University of Nevada, Las Vegas.
From Dr. Dana Elizabeth Weiner: Trump’s Birthright Citizenship Order Contradicts Legal Precedent
The Fourteenth Amendment established right to national citizenship, which had previously been ambiguous and defined locally and at the state level. During Reconstruction, the era immediately following the Civil War and emancipation, Congress was working to protect the rights of African Americans especially in states that had recently ended slavery.
They faced substantial local and state level threats to their voting rights, personal safety, economic freedom, and civil rights. By creating national citizenship established at birth and naturalization, the Fourteenth Amendment aimed to define citizenship and clarify the mechanisms for protecting it.
The Fourteenth Amendment is standing law and this executive order aims to take a shortcut around the constitutional amendment process. The order makes a number of statements about the “policy of the United States” but this is intended to establish new, more restrictive citizenship policies rather than clarify the existing procedures.
Removing this access to birthright citizenship on the basis of parent’s status is in keeping with the Heritage Foundations Project 2025 agenda. Executive orders need to follow the U.S. Constitution, and this executive order is consequently facing challenges in four federal courts already.
Dana Elizabeth Weiner, Associate Professor of History, Wilfrid Laurier University, Ontario, Canada.
From Professor Calvin Schermerhorn: Trump Wants to Turn The U.S. Back to Pre-14th Amendment Racial Citizenship Policies.
The Fourteenth Amendment is clear and unambiguous: “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.”
The jurisdiction clause was meant to exclude American Indians who were not granted U.S. citizenship until 1924. But the Supreme Court in 1898 ruled that birthright citizenship extended to the children of immigrants who were born in the United States, even if their parents had entered the country illegally.
Trump’s argument is a radical departure from the intent of the framers and settled law over nearly 130 years. This reinterpretation is meant to return the country to a period in which citizenship was limited to native-born or naturalized white people since the Fourteenth Amendment sought to overturn eighty years of racial citizenship under a patchwork of state constitutions and statutes. That’s why the framers put it first and why they mentioned “the State wherein they reside.”
Calvin Schermerhorn, Professor, School of Historical, Philosophical, and Religious Studies at Arizona State University.
From Professor Nancy Foner: U.S.-Born Children Are U.S. Citizens at Birth
As legal scholars note, Trump’s argument does not align with historical interpretations of the amendment. Indeed, in 1898, in a landmark Supreme Court decision involving the U.S.-born child of Chinese immigrants who themselves were prohibited from naturalizing as U.S. citizens (United States vs. Wong Kim Ark), the Supreme Court reaffirmed that no matter where their parents were born or what their parents’ status, U.S.-born children are U.S. citizens at birth.
Nancy Foner, Distinguished Professor Emerita of Sociology, Hunter College and CUNY Graduate Center, New York.
From Professor Joe Lockard: Trump’s Executive Order Overlooks The History of African Americans
Trump’s executive order deviates entirely from the historical meaning of the 14th amendment. This amendment, a product of the post-Civil War constitutional revolution, guaranteed that every person born within the United States would be guaranteed citizenship and all its rights.
Those who were without citizenship rights—enslaved African Americans being the main case—could not be denied citizenship. The amendment was a direct response to the 1857 Dred Scott decision where the U.S. Supreme Court ruled that people of African descent were not included in the definition of ‘citizen’. The 14th amendment states in plain terms that everyone born on U.S. territory is a citizen, no matter what their descent. We are all equal. Trump’s radical misinterpretation seeks to overturn this established constitutional principle.
Joe Lockard, Associate Professor, English Department, Arizona State University.
