RBC-Ukraine explains what could hinder Trump. This is reported by Kontrakty.UA.
Did Trump abolish birthright citizenship? What happened
According to the 14th Amendment of the U.S. Constitution, all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and the state in which they reside.
In the executive order, Trump argues that the amendment has never extended citizenship to all those born in the U.S. and has always excluded from birthright citizenship children born in the U.S. who are not subject to its jurisdiction.
Among these categories are those whose circumstances at birth include:
- a mother who was unlawfully present in the country, and a father who was neither a citizen nor a lawful permanent resident of the U.S.
- a mother who was legally in the country but temporarily (under visa-waiver programs or with a tourist, work, or student visa), and a father who was not a U.S. citizen or lawful permanent resident
Trump ordered to not accept applications for citizenship and not issue documents recognizing U.S. citizenship for the aforementioned categories.
The president's executive order becomes law without the need for Congressional approval. However, the law does not have retroactive effect, meaning it does not apply to those born in the U.S. prior to this. And it will not apply to children born within the next 30 days.
Trump has long promised to change U.S. policy in this area. His order is effectively aimed at denying citizenship to children of migrants who are in the country either illegally or on temporary visas.
However, there are concerns that in a country where citizenship by "jus soli" has long been rooted as a value, the new president's attempt to abolish this right for future generations could lead to policies specifically targeting "colored communities," writes The Guardian.
It remains unclear how this mechanism will be implemented. Trump's initiative has already faced legal obstacles - a number of states have sued the federal government.
What is birthright citizenship in the U.S.
The principle of "jus soli" (from Latin, "right of the soil") has its roots in English law, which centuries ago stated that all born in England are its subjects.
Unrestricted birthright citizenship in the U.S. derives from the American Constitution. Until the second half of the 19th century, it applied only to white Americans. Specifically, in 1857, the Supreme Court in the case of "Dred Scott v. Sanford" ruled that the descendants of black slaves - African Americans - could not be citizens.
Everything changed after the Civil War. The 13th Amendment to the Constitution abolished slavery in 1865, and three years later, the 14th Amendment enshrined the right to citizenship for former slaves born in America.
Thus, the principle that those born and naturalized in the U.S. and under its jurisdiction are citizens, along with a series of related laws, forms the basis of modern birthright citizenship policy.
Hardline supporters argue that this policy is a "great magnet for illegal immigration." They claim it encourages undocumented pregnant women to cross the border. This phenomenon is derogatorily referred to as "birth tourism" and "anchor baby."
Is there a court ruling on citizenship for children of migrants?
After the ratification of the 14th Amendment, Americans actively opposed migrants, especially Chinese workers. Soon Congress passed a law that significantly restricted immigration from China and made life difficult for those already in the country.
The definitive ruling on this issue came from the case of "Wong Kim Ark v. United States." Wong was the child of Chinese migrants but was born on U.S. soil. He traveled to China to visit relatives but was denied entry back into the U.S. upon his return. The basis for this was that he was not an American citizen.
The Supreme Court viewed the situation differently. The justices ruled in favor of Wong and recognized him as a U.S. citizen, despite the fact that his migrant parents had no opportunity to naturalize.
"This case confirmed that regardless of the race or immigration status of the parents, all individuals born in the United States have the right to all the rights that citizenship provides," quotes BBC the director of the Immigration History Research Center at the University of Minnesota, Erika Lee.
Since then, the court has not revisited this issue. It should be noted that the U.S. follows common law, so decisions from a century ago can still be referenced today.
Who cannot become a citizen, even if born in the U.S.
Despite the constitutional amendment, there have been and still are exceptions to the "jus soli" principle. For example, prior to the passage of a separate law in 1924, members of indigenous Indian tribes were not recognized as U.S. citizens.
U.S. legislation distinguishes between nationality and citizenship. Residents of unincorporated territories such as Puerto Rico, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands are subjects and citizens of the U.S.
Meanwhile, residents of American Samoa, according to a Supreme Court ruling from 2021, are subjects but do not automatically receive birthright citizenship unless Congress passes a relevant law.
Children of foreign diplomats cannot claim birthright citizenship. In a stricter scenario, neither can "children of hostile occupiers."
At the same time, a foreigner born outside the U.S. can obtain American citizenship if at least one of their parents is a U.S. citizen. This rule only applies to one generation.
How many people could be affected
According to Pew Research, in 2016, about 250,000 children were born to illegal migrants in the U.S. By 2022 (the most recent year for which data is available), that number could have risen to 1.2 million children.
However, since these children will also have children, the cumulative effect of abolishing birthright citizenship could increase the number of illegal immigrants to 4.7 million by 2050, as determined by the Migration Policy Institute.
In December 2024, Trump stated that he did not want to break up families, so children born in the U.S. to illegal migrants should be deported along with their parents.
Where else is there birthright citizenship?
"We need to put an end to this. We are the only country where it exists," Trump previously criticized birthright citizenship.
But that is not true. As of now, more than 30 countries practice automatic "jus soli" rights without restrictions in almost all cases. Most of these countries are located in the Western Hemisphere, including Canada and Mexico.
In other regions of the world, this right is less common. Australia and the United Kingdom allow automatic citizenship for a child if one of the parents is a citizen or permanent resident.
For example, in Ukraine, citizenship is granted to a child born on its territory if:
- they do not acquire foreign citizenship by "jus sanguinis" from their parents
- their parents have been granted asylum or refugee status
- they are stateless (or their citizenship is unknown)
What could hinder Trump
Most lawyers agree that Donald Trump cannot abolish the right to citizenship for children of migrants by executive order.
"He is doing something that will upset many people, but ultimately, it will be the courts that decide. This is not something he can unilaterally resolve," quotes BBC constitutional expert and professor at the University of Virginia School of Law, Saikrishna Prakash.
A constitutional amendment could abolish "jus soli," but it requires two-thirds of the votes in both the House of Representatives and the Senate, as well as approval from at least three-quarters of the states.
Currently, this is unlikely, as Republicans hold a slim majority in both chambers of Congress, and not all of them support a hardline stance against migrants. Moreover, nearly two dozen states have already filed lawsuits against the federal government.
A coalition of 18 states, including New Jersey, New York, and California, has filed a lawsuit in Massachusetts seeking to overturn Trump's order. Another group of states - Arizona, Oregon, Illinois, and Washington - has filed a separate lawsuit in Seattle. A hearing is expected tomorrow, January 23.
"The Constitution could not be clearer: the citizenship of children born in the United States does not depend on the citizenship of their parents. This principle is fundamental to who we