Is Trump’s order on birthright citizenship constitutional? | Explained Premium

U.S. judge blocks Trump's executive order on birthright citizenship, sparking legal battles and constitutional debates.

The story so far: On January 23, U.S. District judge John Coughenour in Seattle blocked President Trump’s executive order attempting to curb ‘birthright citizenship’.

Birthright citizenship is a legal principle that grants automatic citizenship to individuals born within a country’s territory, regardless of their parents’ citizenship status. In the U.S., this right is enshrined in the 14th amendment of the Constitution, ratified in 1868, 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.” The 14th amendment was the hard-won result of a prolonged legal and political struggle to abolish slavery and advance racial equality. It directly overturned the infamous Dred Scott versus Sandford (1857) judgment, which had denied citizenship to African Americans.

Alongside the 13th amendment (abolishing slavery) and the 15th amendment (granting voting rights irrespective of race), the 14th amendment became a cornerstone of the Reconstruction era. It aimed to dismantle the legal framework of slavery and create a more inclusive society, redefining citizenship in a way that challenged the racial hierarchy of the time.

Nations worldwide largely determine citizenship through two principles — “jus soli” (right of the soil), which grants citizenship by birthplace, or “jus sanguinis” (right of blood), which grants it by familial descent. The U.S. employs both. The jus soli principle was reinforced in United States versus Wong Kim Ark (1898), which upheld the citizenship of a man born in California to Chinese parents despite the 1882 Chinese Exclusion Act barring their naturalisation. This ruling solidified birth in the U.S. as the primary basis for citizenship, irrespective of parental status.

Contrary to claims that the U.S. is the only country with birthright citizenship, 2022 data from the Global Citizenship Observatory shows that 60 countries have provisions for jus soli in their legal codes or constitutions.

Trump’s executive order reinterprets the 14th amendment, arguing that birthright citizenship excludes persons born in the U.S. but not “subject to the jurisdiction thereof”. The administration interprets this to mean that children born in the U.S. to undocumented parents or parents with temporary legal status, such as tourists or foreign students, are not automatically granted citizenship unless at least one parent is a U.S. citizen or lawful permanent resident.

The administration’s interpretation hinges on the phrase “subject to the jurisdiction thereof,” claiming it excludes children of non-citizens. However, this contradicts historical and legal precedent. The SC clarified the meaning of this phrase in Wong Kim Ark (1898), ruling that it applies to ‘traditional exceptions’, such as children of foreign diplomats (who have diplomatic immunity) or those born on foreign warships, visiting a U.S. port - groups not subject to U.S. jurisdiction. In contrast, undocumented immigrants and temporary visa holders are subject to U.S. jurisdiction. They live, work, and participate in society, and are bound by U.S. laws.