Birthright citizenship in the United States

United States citizenship can be acquired by birthright in two situations: by virtue of the person's birth within United States territory (jus soli) or because at least one of their parents was a U.S. citizen at the time of the person's birth (jus sanguinis).^[1] Birthright citizenship contrasts with citizenship acquired in other ways, for example by naturalization.^[2]

Birthright citizenship is explicitly guaranteed to anyone born under the legal "jurisdiction" of the U.S. federal government by the Citizenship Clause of the Fourteenth Amendment to the United States Constitution (adopted July 9, 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.

This clause was a late addition to the Amendment, made in order to clarify what some of the drafters felt was already the law of the land: that all those born to parents beholden to U.S. law ("even of aliens") were guaranteed citizenship.^[3] Nonetheless, contrary laws in multiple states had culminated in the Dred Scott v. Sandford decision (1857), wherein the Supreme Court universally denied U.S. citizenship to African Americans regardless of the jurisdiction of their birth.^[4]

Since the Supreme Court decision United States v. Wong Kim Ark the Citizenship Clause has generally been understood to guarantee citizenship to all persons born in the United States and "subject to the jurisdiction thereof", which at common law excluded the children of foreign diplomats and occupying foreign forces.^[5]

Native Americans living under tribal sovereignty were excluded from birthright citizenship until the Indian Citizenship Act of 1924. Over time Congress and the courts did the same for unincorporated territories of Puerto Rico, the Marianas (Guam and the Northern Mariana Islands), and the U.S. Virgin Islands (notably excluding American Samoa).^[6]^[7] The Immigration and Nationality Technical Corrections Act of 1994 granted birthright citizenship to children born elsewhere in the world if either parent is a U.S. citizen (with certain exceptions); this is known as jus sanguinis ("right of blood").

Political opposition to jus soli birthright citizenship has arisen in the United States over the past several decades, punctuated by the election of Donald Trump—who explicitly opposes jus soli citizenship for children of undocumented immigrants—as President of the United States in 2016 and 2024.^[8] Most legal observers agree that the Fourteenth Amendment explicitly endorses jus soli citizenship, but a dissenting view holds that the Fourteenth Amendment does not apply to the children of unauthorized immigrants born on US soil.

Upon taking office in 2025, Trump issued an executive order asserting that the federal government would not recognize jus soli birthright citizenship for the children of non-citizens. The executive order has been challenged in court, and a federal judge issued a temporary restraining order blocking its implementation, calling it "blatantly unconstitutional."

^ Lee, Margaret Mikyung (January 10, 2012). "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents" (PDF). Federation of American Scientists. Congressional Research Service.
^ 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever.") (emphasis added).
^ See Citizenship Clause § Senate Debate and #Sailor's Snug Harbor below 28 U.S. 99 (1830)
^ Smith, Rogers M. (2009). "Birthright Citizenship and the Fourteenth Amendment in 1868 and 2008". University of Pennsylvania Journal of Constitutional Law. 11 (5): 1329–1336.
^ "The Citizenship Clause and "Birthright Citizenship": A Brief Legal Overview". Congressional Research Service. 2018. Retrieved February 4, 2025. At least since the Supreme Court's decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes. In Wong Kim Ark...[t]he Court reasoned that the Citizenship Clause should be "interpret[ed] in light of the common law" and grounded its holding in the common law principle of jus soli or "right of the soil." Pursuant to that principle, "every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born." The Court interpreted the "subject to the jurisdiction thereof" requirement in the Citizenship Clause to mean that the federal government could deny citizenship to people born on U.S. soil who fell within these two narrow, common law exceptions.
^ See 8 U.S.C. § 1101(a)(36) (defining "State") and 8 U.S.C. § 1101(a)(38) (defining "United States"), as well as Territories of the United States § Incorporated vs. unincorporated territories.
^ Weiner 1998, p. 238.
^ Ehrenfreund, Max (August 17, 2015). "Understanding Trump's plan to end citizenship for undocumented immigrants' kids". The Washington Post.

[1] Lee, Margaret Mikyung (January 10, 2012). "Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents" (PDF). Federation of American Scientists. Congressional Research Service.

[2] 8 U.S.C. § 1101(a)(23) ("The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever.") (emphasis added).

[3] See Citizenship Clause § Senate Debate and #Sailor's Snug Harbor below 28 U.S. 99 (1830)

[4] Smith, Rogers M. (2009). "Birthright Citizenship and the Fourteenth Amendment in 1868 and 2008". University of Pennsylvania Journal of Constitutional Law. 11 (5): 1329–1336.

[crs-5] "The Citizenship Clause and "Birthright Citizenship": A Brief Legal Overview". Congressional Research Service. 2018. Retrieved February 4, 2025. At least since the Supreme Court's decision in the 1898 case United States v. Wong Kim Ark, the prevailing view has been that all persons born in the United States are constitutionally guaranteed citizenship at birth unless their parents are foreign diplomats, members of occupying foreign forces, or members of Indian tribes. In Wong Kim Ark...[t]he Court reasoned that the Citizenship Clause should be "interpret[ed] in light of the common law" and grounded its holding in the common law principle of jus soli or "right of the soil." Pursuant to that principle, "every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born." The Court interpreted the "subject to the jurisdiction thereof" requirement in the Citizenship Clause to mean that the federal government could deny citizenship to people born on U.S. soil who fell within these two narrow, common law exceptions.

[6] See 8 U.S.C. § 1101(a)(36) (defining "State") and 8 U.S.C. § 1101(a)(38) (defining "United States"), as well as Territories of the United States § Incorporated vs. unincorporated territories.

[7] Weiner 1998, p. 238.

[8] Ehrenfreund, Max (August 17, 2015). "Understanding Trump's plan to end citizenship for undocumented immigrants' kids". The Washington Post.

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