The Executive Order on Birthright Citizenship is Unconstitutional

Rule of Law Facts & Resources

On January 20, 2025, the new Presidential administration issued an executive order purporting to unilaterally limit birthright citizenship for children of certain undocumented parents.[1]  The order stated that it would have applied to births 30 days after its issuance, or February 19, 2025.[2]  The order was preliminarily blocked by multiple federal courts and later blocked by two appellate courts.  For the reasons set forth below, the New York City Bar Association (the “City Bar”) urges lawmakers, the courts, and the public to recognize the order as unconstitutional.

Birthright citizenship is guaranteed by the Fourteenth Amendment of the U.S. Constitution,[3] 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.”  As Congress explained when it drafted that language in 1866, the exception for those not “subject to the jurisdiction” of the United States applies only to very limited situations, such as – for a time – the children born to members of American Indian tribes[4] and the children of diplomats.[5]  When the issue was litigated in 1898, in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held that the Fourteenth Amendment’s citizens guarantee applied to the child of Chinese immigrants (who by virtue of the laws in place at the time could never become U.S. citizens themselves).

Birthright citizenship is also codified and protected further in the Immigration and Nationality Act of 1952 (8 U.S.C. § 1401), which provided that “person[s] born in the United States, and subject to the jurisdiction thereof shall be nationals and citizens of the United States at birth.” The Supreme Court reaffirmed these protections by stating in a 1982 opinion addressing the rights of undocumented children to attend school: “[n]o plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”[6]

The recent executive order purports to limit birthright citizenship by alleging that a child born to undocumented parents is not “within the jurisdiction of the United States.” It thereby posits that birthright citizenship does not extend to any child born in the United States to a mother who is unlawfully present or lawfully present on a temporary basis and a father who is neither a U.S. citizen nor a lawful permanent resident.[7]

The executive order prohibits any “department or agency of the United States government” from issuing “documents recognizing United States citizenship, or accept[ing] documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to children born to parents who are neither lawful permanent residents nor citizens. In practice, a government agency may refuse to issue a social security number and/or a passport to such a child.[8]  By denying these documents, these children may be excluded from access to crucial aid programs and many would be rendered stateless.  And they would live in perpetual fear of being deported from the country where they were born and typically the only country in which they have ever lived.[9]

Immediately after the executive order was announced, several lawsuits challenging it were filed in federal court.[10]  Their main argument is that the President has no authority to override or ignore the Fourteenth Amendment’s Citizenship Clause or otherwise amend the Constitution unilaterally,[11] and, therefore, the President lacks the authority to strip individuals of their right to citizenship.  Only a constitutional amendment could arguably alter birthright citizenship,[12] and that would require two-thirds vote in both the House of Representatives and the Senate and approval by three quarters of U.S. states.[13] On January 23, 2025, a federal judge in Seattle sided with the four states that had filed the lawsuit by temporarily blocking the administration’s “blatantly unconstitutional order”.[14] That same court later granted plaintiffs the preliminary relief sought, holding that citizenship “by birth is an unequivocal Constitutional right.  It is one of the precious principles that makes the United States the great nation that it is.  The President cannot change, limit, or qualify this Constitutional right via an executive order.”[15] On February 5, 2025, a federal judge in Maryland issued a preliminary injunction, temporarily halting the executive order until the case is resolved on the merits.[16] On February 19, 2025, the Ninth Circuit Court of Appeals denied the administration’s request for an emergency order to suspend a nationwide injunction which blocked the President’s executive order.[17] On February 28^th, 2025, the Fourth Circuit Court of Appeals also denied the administration’s request stating that “for well over a century, the federal government has recognized the birthright citizenship of children born in this country to undocumented or non-permanent immigrants.”[18]

Ultimately, the courts will determine whether to uphold the executive order.[19]  In so doing, we urge the courts not to take lightly the responsibility and potential repercussions of finding that a President has the power to unilaterally cancel individual rights enshrined in the U.S. Constitution or in federal law without recourse to the procedures either for amending the Constitution that were established by the Framers or which require involvement by Congress and the voting public.

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org