By Laila Khan, IMMIGRATION IMPACT | Editorial credit: 5 second Studio / shutterstock.com

The American Immigration Council does not endorse or oppose candidates for elected office. We aim to provide analysis regarding the implications of the election on the U.S. immigration system.

For over a century, the United States has applied the principle of jus soli, or birthplace-based citizenship, to grant American citizenship to anyone born on U.S. territory regardless of their parent’s immigration status. But over the past few decades, anti-immigrant politicians have advocated for the restriction of birthplace-based citizenship to deny birthright citizenship, primarily to children of undocumented immigrants.

In 2018, former President Donald Trump called birthright citizenship a “crazy policy,” and later in 2019, stated that he was looking at birthright citizenship “very seriously.” These statements lacked detail and never came to fruition. Studies have demonstrated the calamitous consequences of ending birthplace-based citizenship given that such a change would create a subclass of individuals in the United States. However, the debate over birthright citizenship has remained at the forefront of the 2024 presidential election.

A new factsheet from the American Immigration Council explains the origins of birthright citizenship, as well as laws currently governing birthright citizenship in the United States. The research concludes that the only way by which the United States could take away birthplace-based birthright citizenship would be to ratify an amendment to the U.S. Constitution or through a radical departure by the U.S. Supreme Court from centuries-old precedent interpreting the Fourteenth Amendment to the Constitution. interpreting the Fourteenth Amendment to the Constitution.

The Fourteenth Amendment to the Constitution

The adoption of birthright citizenship in the United States can be traced to the ratification of the Fourteenth Amendment in 1868. Enacted following the end of the Civil War, the Fourteenth Amendment (among many things), guaranteed certain rights for African Americans in all states. Importantly, it rectified the 1857 Dred Scott decision which ruled that the U.S. Constitution did not extend citizenship to people of African descent. The first sentence of the Fourteenth Amendment known as the Citizenship Clause sought to ensure birthright citizenship for everyone born on U.S. territory regardless of race, with some limited exceptions.

The clause 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.”

While the fight for equal rights has continued well after the ratification of the Fourteenth Amendment, the use of birthright citizenship through the Citizenship Clause was to ensure that all those born within the United States regardless of race were born equal.

Supreme Court Interpretations of the Fourteenth Amendment

The Fourteenth Amendment became the basis for landmark Supreme Court rulings over the years addressing birthright citizenship. The Citizenship Clause’s line about being “subject to the jurisdiction” of the United States had created some uncertainty about who was subject to the jurisdiction of the United States. However, the 1898 ruling in United States v. Wong Kim Ark established the explicit precedent that anyone born in the United States, regardless of their parent’s immigration status, is a citizen at birth.

Wong Kim Ark was born in the United States to Chinese parents. When attempting to return to the United States from a temporary visit to China in 1890, the U.S. government barred Wong Kim Ark from entering the country under the Chinese Exclusion Act. This Act had declared some racial groups permanently ineligible for citizenship. However, the Supreme Court held in a 6-2 decision that because Ark was born in the United States, he was indeed a U.S. citizen, and the Chinese Exclusion Act could not supersede the mandate of the Fourteenth Amendment.

In the years since, the Supreme Court has reaffirmed that undocumented immigrants and their children are “subject to the jurisdiction” of the United States. In the 1982 case of Plyler v. Doe, the Supreme Court stated that there is “no plausible distinction” between documented and undocumented immigrants in regard to jurisdiction, as both are “subject to the full range of obligations imposed by [the location’s] civil and criminal laws.” This case held that undocumented children have a constitutional right to an education.

Could the U.S. Take Away Birthright Citizenship?

Taking away birthright citizenship from children born in U.S. soil would not be simple. Doing so would only be possible through the passage of a new constitutional amendment—requiring a two-thirds vote in both the House and Senate, as well as a ratification by three-quarters of the states.

Alternatively, the U.S. Supreme Court could adopt a more restrictive interpretation of the Citizenship Clause of the Fourteenth Amendment to restrict birthright citizenship. This path, however, would require the Court to radically deviate from well-established precedent that cements the fact that children born in the country are lawful U.S. citizens regardless of their parents’ immigration status. While Congress or the president could try to restrict birthright citizenship through legislation or executive order, these actions would violate the Fourteenth Amendment.

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