When President Trump took office for his second term on January 20, 2025, he immediately signed more executive orders than any other president had on their first day. Immigration had been a hot topic for voters during his campaign, and President Trump seemed determined to make good on some of his campaign promises.
Executive orders are written directives by a president which circumvent the legislative branch and any delays that can occur there. Executive orders are still subject to judicial review to ensure that they are constitutional. The president derives permission to create executive orders from the executive powers clause of the Constitution, as well as from a precedent going back to the first President, George Washington. The full and updated list of current executive orders can be found here: Presidential Actions – The White House
What is Birthright Citizenship?
Birthright Citizenship is a protection for any baby born in U. S. territory (to parents subject to the jurisdiction thereof) that they will automatically be considered a United States citizen. This is according to the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution.1 This means that even children of undocumented immigrants who are in the United States unlawfully can automatically become citizens if they are born here, which then may create an easier path for the child’s parents to become citizens as well.
On his first day in office, Trump issued an executive order revoking birthright citizenship to children born to undocumented immigrants. The argument for this is that if an undocumented person is not paying taxes or in good standing with the laws (due to entering or remaining in the states unlawfully) then they are not subject to the jurisdiction of the United States.
Challenge to Birthright Citizenship Executive Order
The order was set to go into effect on February 19, 2025, but it was quickly challenged in court. On January 23, 2025, a Seattle federal judge placed a 14-day temporary restraining order against the order. On February 5, 2025, a federal judge in Maryland issued a nationwide preliminary injunction which will remain in place until either the resolution of the case or overturning by a higher court. The judge justified her ban for all states because one of the plaintiffs in the case in front of her is an agency that works with immigrants in many different states. These immigrants include undocumented women due to give birth very soon. The judge went on to state that the order goes against the “law and tradition” that babies born on U.S. soil have always been considered U.S. citizens.
History of the Fourteenth Amendment to the U.S. Constitution
The 14th Amendment was created to overrule a famous Supreme Court decision in the case Dred Scott vs. Sandford (1857). Dred Scott was an enslaved person in Virginia who was taken to states where slavery was not legal. He filed a lawsuit in federal court arguing that he should be free since he had resided in those places, and the case was thrown out. The basis for that decision was the judges’ opinion that enslaved people were not entitled to any protection from the courts because they were not considered U.S. citizens.
The 14th Amendment was subsequently ratified in 1868, following the American Civil War and the freeing of the slaves, specifically to grant citizenship to formerly enslaved people who the Dred Scott court said did not qualify as citizens. The opening sentence of the 14th Amendment is clear: “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.”
In 1895, Wong Kim Ark filed a lawsuit because he had been born in San Francisco to Chinese parents and when he tried to re-enter the U.S. from a trip abroad he was denied entry. He argued successfully that being born on U.S. soil made him automatically a citizen. While Mr. Ark won that case and set that precedent for later courts, there was a dissenting opinion issued by one of the Supreme Court judges (Justice Fuller) who claimed that
“the Fourteenth Amendment does not exclude from citizenship by birth children born in the United States of parents permanently located therein, and who might themselves become citizens.” But “on the other hand,” Fuller continued, the amendment also does not “arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.”2
This dissenting opinion may be one echoed in the argument used by the U.S. Department of Justice to support their position in the current Citizenship Birthright cases pending in district courts.
Future of the Birthright Citizenship Executive Order
While the cases challenging President Trump’s Birthright Citizenship executive order are ongoing and it is unknown how long it will be until there is a decision, the Maryland judge has made clear her position. She has already said her court will not be the first to change the traditional interpretation of the Fourteenth Amendment, pointing towards the probable outcome. There are three other cases pending in other courts however, and the defendant Justice Department’s position is that the Fourteenth Amendment has been misinterpreted in the past to include the children of people who are in the U.S. either illegally or temporarily.
No matter the outcome, cases that are tried in District Courts can appeal decisions to the higher Circuit Court and ultimately the Supreme Court. This process could take years, and given that previous decisions hold a lot of weight in the court system, it is not presumptuous to guess that the traditional interpretation may not be changing any time soon. In the meantime, the status quo remains and any baby born on U.S. soil is still entitled to U.S. citizenship.
What To Do If You Have More Questions
Immigration laws and regulations change from time to time, and never so much as now. If you have any question or uncertainty about your own status or that of a family member or employee, the best way to protect yourself is to consult with an experienced and knowledgeable immigration attorney. The laws and paperwork surrounding immigration to the U.S. can be complex and confusing. You can find more information about immigration and the different visas available in the articles here Immigration Attorneys Blog – Siri & Glimstad LLP.
Or for immediate help with your immigration questions from an immigration attorney, contact the immigration attorneys of Siri & Glimstad.
[1] 14th Amendment – Citizenship Rights, Equal Protection, Apportionment, Civil War Debt | Constitution Center
[2] A history of birthright citizenship at the Supreme Court – SCOTUSblog
