Opinion: Birthright Citizenship

Birthright citizenship remains a pressing contemporary issue, particularly in light of President Trump’s recent executive order. For the past 125 years, legal scholars have largely interpreted birthright citizenship as applying to all individuals born in the United States, regardless of their parent’s immigration status. President Trump’s reinterpretation of the Fourteenth Amendment to the Constitution challenges this more-than-a-century-long legal consensus by seeking to exclude the children of undocumented immigrants. Under this new policy, United States citizenship is denied if the child’s mother was unlawfully present or temporarily in the United States and if the child’s father was neither a citizen nor a lawful permanent resident at the time of birth. 

The interpretation of birthright citizenship as extending to the children of undocumented immigrants is based on a synthesized reading of two Supreme Court cases: United States v. Wong Kim Ark and Plyler v. Doe. In Wong Kim Ark, the plaintiff was a U.S.-born son of Chinese immigrants who legally resided in California. After traveling to China, he was denied reentry into the United States. He challenged the government’s refusal by arguing that his birthright citizenship was guaranteed under the Fourteenth Amendment. The Supreme Court concluded that Wong Kim Ark’s parents were “entitled to the protection of, and owe[d] allegiance to, the United States” and “subject to the jurisdiction thereof” when their son was born. Therefore, Wong Kim Ark established that the Fourteenth Amendment’s Citizenship Clause applies to children of foreigners present on American soil. In 1975, Plyler centered on a class action lawsuit filed on behalf of school-age Mexican children who were denied enrollment in Texas public schools because they had not been “legally admitted” into the United States. The Supreme Court concluded that undocumented immigrants who are “present within a State’s boundaries and subject to its laws” are “within the jurisdiction” of a state for equal protection purposes. Therefore, Plyler established that undocumented immigrants are entitled to equal protection under the Fourteenth Amendment. 

Although Wong Kim Ark did not involve undocumented immigrants and Plyler did not involve the Citizenship Clause, legal scholars have combined the precedents established in these two cases to extend birthright citizenship for children born in the United States to parents who are undocumented. However, the Trump administration is renegotiating these precedents. With legal challenges to the Trump administration’s reinterpretation of birthright citizenship already underway, this clash between President Trump’s prerogatives and legal scholarship will likely go to the Supreme Court–and the recent executive order may be affirmed and upheld. 

The Supreme Court has plausible grounds to distinguish the precedents established in Wong Kim Ark and Plyler from a case involving both birthright citizenship and undocumented immigrants. Undocumented immigrants who are “within the jurisdiction” under the Equal Protection Clause according to Plyler may not necessarily be “subject to the jurisdiction” under the Citizenship Clause according to Wong Kim Ark. 

Additionally, the Supreme Court may invoke the Bodinian theory of subjection-for-protection and Calvin’s Case to argue that children of undocumented immigrants lack the “obedience to” and “protection by” the state required for birthright citizenship. The Bodinian principle has long underpinned birthright citizenship, asserting that children of obedient subjects living under “a sovereign’s protection” will naturally become loyal subjects themselves. The Supreme Court may argue that undocumented immigrants lack the most fundamental protection of all; the right to remain within the nation’s borders. As President Trump’s press secretary stated, “Everybody who is here illegally is subject to removal at any time.” Moreover, Calvin’s Case affirms that citizenship is determined by allegiance and 

“obedience” rather than birthplace. By holding that an undocumented immigrant’s presence on American soil “plainly constitute[s] a continuing crime,” the Supreme Court may argue that a child born on United States soil to undocumented parents would be born of an illicit and inherently “disobedient” act. Thus, although undocumented immigrants are entitled to equal protection, due process, and certain other constitutional protections, they are not “obedient to” or “protected by” the sovereign, and therefore they are not entitled to birthright citizenship. 

This executive order that reinterprets the boundaries of birthright citizenship would disproportionately target nonwhite communities, redistributing resources along racialized lines and legitimizing nativist hostilities. Unchallenged, President Trump’s executive order would leave large segments of traditionally Democratic constituencies disenfranchised while a substantial stateless population would emerge, unable to access higher education, secure stable employment, or obtain a passport. The United States has historically defined itself as a nation of immigrants. Revoking birthright citizenship would undermine this historic principle and realize an exclusionary racial project that reshapes national identity around whiteness. 

Works Cited

“Protecting the Meaning and Value of American Citizenship.” The White House, January 21, 2025. https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/. 

Raley, Gage. "Could the Supreme Court Defy the "Legal Consensus" and Uphold a Trump-like Executive Order on Birthright Citizenship?" Charleston L. Rev. 17 (2022): 97. 

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