Attempting to End Birthright Citizenship by Executive Order: A Direct Challenge to the 14th Amendment Blocked by Every Court That Reviewed It
Tier 2Under Judicial Review2025-01-20 to 2026-04-09
Factual Summary
On January 20, 2025, his first day back in office, President Donald Trump signed Executive Order 14160, titled "Protecting the Meaning and Value of American Citizenship." The order directed federal agencies to deny U.S. citizenship to children born in the United States if both parents were not U.S. citizens or lawful permanent residents. Specifically, the order targeted two categories: children born to mothers who were unlawfully present in the United States and children born to mothers who were lawfully but temporarily present, such as those on student visas, work visas, or tourist visas.
The executive order directly challenged the prevailing interpretation of the Citizenship Clause of the Fourteenth Amendment to the U.S. Constitution, which states: "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." Since the Supreme Court's 1898 decision in United States v. Wong Kim Ark, this clause has been understood to guarantee citizenship to virtually all persons born on U.S. soil, regardless of the immigration status of their parents.
The executive order was immediately challenged in federal court by multiple parties, including state attorneys general, immigrant rights organizations, and the American Civil Liberties Union. Every federal court that considered the challenges struck the order down. As of February 2025, four federal judges had issued preliminary injunctions blocking the order's implementation and enforcement nationwide. The judges found that the order was likely unconstitutional and that its enforcement would cause irreparable harm to affected families.
Constitutional scholars across the political spectrum criticized the order. Conservative legal scholars who had otherwise supported the Trump administration's immigration enforcement priorities stated that the 14th Amendment's text was clear and that birthright citizenship could not be eliminated by executive action. The Federalist Society's own scholars were divided, with several prominent members stating that the order was unconstitutional. Liberal constitutional scholars uniformly condemned it. The bipartisan consensus among legal experts was that any change to birthright citizenship would require a constitutional amendment, not an executive order.
The case reached the U.S. Supreme Court for oral argument in the spring of 2026. Over more than two hours of argument, a majority of the justices appeared skeptical of the administration's position. As of April 2026, the Supreme Court had not issued its final ruling, but reporting from the argument indicated that the Court was likely to strike down or significantly limit the executive order. A definitive ruling was expected by the end of June or early July 2026.
The executive order has never gone into effect. No child has been denied birthright citizenship under its terms. The order nonetheless represented an extraordinary assertion of presidential power: the attempt to override a constitutional guarantee through executive action alone, without legislation or constitutional amendment.
Primary Sources
1. Executive Order 14160, "Protecting the Meaning and Value of American Citizenship," signed January 20, 2025
2. United States v. Wong Kim Ark, 169 U.S. 649 (1898) (Supreme Court precedent establishing birthright citizenship)
3. U.S. Constitution, Fourteenth Amendment, Section 1 (Citizenship Clause)
4. Federal district court preliminary injunction orders blocking the executive order, January-February 2025 (multiple jurisdictions)
5. U.S. Supreme Court oral argument transcript, spring 2026
Corroborating Sources
1. SCOTUSblog: "Supreme Court appears likely to side against Trump on birthright citizenship," April 2026
2. ACLU: "Trump's Birthright Citizenship Executive Order: What Happens Next," ongoing analysis
3. NAACP Legal Defense Fund: "Know Your Rights: FAQ on Trump's Birthright Citizenship Executive Order," 2025
4. Ogletree Deakins: "Supreme Court to Review Constitutionality of Birthright Citizenship in 2025-26 Term," 2025
5. American Immigration Council: "Supreme Court Expresses Skepticism at Trump's Effort to Eliminate Birthright Citizenship," April 2026
6. 19th News: "What's the latest on birthright citizenship? Supreme Court to review Trump's order," July 2025
Counterarguments and Context
The Trump administration argued that the Citizenship Clause's phrase "subject to the jurisdiction thereof" was not intended to encompass the children of individuals who are present in the United States unlawfully or temporarily, and that the 14th Amendment's framers intended to guarantee citizenship only to children of persons with a permanent allegiance to the United States. Some legal scholars, including John Eastman and others associated with the originalist movement, have argued that the historical understanding of "jurisdiction" at the time of the 14th Amendment's ratification supported a narrower reading. The administration contended that the executive order was a legitimate exercise of the president's authority to interpret and enforce constitutional provisions. However, the overwhelming consensus of constitutional scholarship holds that United States v. Wong Kim Ark resolved this question in 1898, establishing that birth on U.S. soil confers citizenship with extremely limited exceptions for children of foreign diplomats and hostile occupying forces. Every federal court to review the executive order agreed with this reading. The attempt to override a constitutional amendment through executive order, without legislative action or a new constitutional amendment, represented one of the most aggressive assertions of unilateral executive power in modern American history.
Author's Note
This entry is classified as Tier 2 because the executive order is the subject of active federal litigation that has reached the Supreme Court. The order has been formally reviewed and blocked by multiple federal judges, and the Supreme Court's consideration constitutes a formal investigation of its constitutionality. The case has not yet been fully resolved, as the Court's final ruling is pending. If the Court strikes down the order, the classification could be updated to reflect the adjudicated outcome.