Case study: Birthright Citizenship

In one of his first acts as the 47th president of the United States, Donald Trump signed an executive order to end automatic citizenship rights for nearly anyone born on US territory - known as "birthright citizenship". 

Executive Order 14160, titled "Protecting the Meaning and Value of American Citizenship", on January 20, 2025. The executive order aims to challenge the prevailing interpretation of the Citizenship Clause of the 14th Amendment to the United States Constitution, in order to end birthright citizenship in the United States for children of illegal immigrants as well as immigrants legally but temporarily present in the U.S., such as those on student, work, or tourist visas.

The order was swiftly challenged in court by multiple organizations and states, being blocked by multiple federal judges.

Trump's executive order seeks to redefine how the Fourteenth Amendment's clause "and subject to the jurisdiction thereof" should be interpreted.It argues that the language excludes children of non-citizens who are in the US unlawfully.

Courts have generally disagreed. In Plyler v Doe, a 1982 Supreme Court case involving a different part of the 14th Amendment, 

 that undocumented immigrants were not "persons within its jurisdiction". The court ruled that migrants are both subject to US laws and granted the protections afforded by them.

A constitutional amendment could do away with birthright citizenship, but that would require a two-thirds vote in both the House of Representatives and the Senate and approval by three quarters of US states - a virtual impossibility on such a controversial proposal, given the current finely balanced divide in American politics.

The executive order states two different situations where a person is no longer a U.S. citizen at birth.

When the mother was unlawfully present in the U.S. and the father was neither a U.S. citizen nor a lawful permanent resident when the person was born.

When the mother was in the U.S. in temporary status, such as a student visa, work visa, tourist visa or under the Visa Waiver Program, and the father was neither a U.S. citizen nor a lawful permanent resident when the person was born.

Most legal scholars say the president doesn't have the power to unilaterally change the law in this area, which is based on an amendment in the US Constitution. 

The concept of birthright citizenship, also known by the legal term "jus soli", is based in English common law and was generally accepted to apply to white men throughout early American history.

However, it did not become part of the Constitution until 1868, when the 14th Amendment was passed in the wake of the US Civil War in order to settle the question of the citizenship of freed, American-born former slaves.

Previous Supreme Court cases, like Dred Scott v Sandford in 1857, had determined that African Americans could never be US citizens. The 14th Amendment overrode that.

In 1898, the US Supreme Court ruled that birthright citizenship applies to the children of immigrants in the case of US v Wong Kim Ark.

The Supreme Court's arguments on birthright citizenship, have rested on another significant constitutional question: Are nationwide injunctions constitutional? This is when a single federal judge blocks the president from implementing a certain policy. In Trump's first hundred days, various groups have sued to block orders and other actions by the Trump administration. In United States law, a nationwide injunction (also called a universal injunction  or national injunction) is when  a court binds the federal government even in its relations with nonparties. Nationwide injunctions are used to restrict the federal government from enforcing a statute or regulation 

The practice of nationwide injunctions was unknown for most of US history and it may have begun in 1963, when a panel for the Court of Appeals for the District of Columbia Circuit conditionally enjoined the Secretary of Transportation from applying his challenged wage regulation to any parties, not merely the plaintiffs. According to the Department of Justice, nationwide injunctions remained "exceedingly rare" for a few decades after 1963

Courts issued an average of 1.5 nationwide injunctions per year against the Reagan, Clinton, and George W. Bush administrations According to the Department of Justice, federal courts issued 19 or 20 nationwide injunctions against the Obama administration According to the Department of Justice, federal courts issued 20 nationwide injunctions against the first Trump Administration in its first year alone, and as of early 2020 had issued 55 such injunctions..      25  nationwide injunctions were issued during the first hundred days of the second Trump Administration, between January 20, 2025, and April 29, 2025. 

The best argument for the constitutionality of national injunctions is that Article III does not define the “the judicial Power. The Constitution does not limit the remedial powers of the federal courts. Subject to regulations and exceptions made by Congress, the federal courts may develop and refine their remedial powers over time.  Two  arguments are typically made for the national injunction. One is that it is needed to protect certain rights — that without a national injunction, there could be widespread violation of a constitutional right, yet the right will be vindicated by the courts only in a relatively few particular cases. The other is that the national injunction allows the judicial system to more quickly get to the right answer — in other words, speed and efficiency. 

The Supreme Court will Rule

While the underlying case concerns the Trump administration’s move to eliminate the Fourteenth Amendment right to birthright citizenship, the Supreme Court has been asked to decide only whether federal district courts have the power to issue nationwide injunctions blocking the executive order while the lawsuits are pending. The ruling could carry broad implications for checks on executive power, options open to pressure groups and citizens right groups as well as the balaance of powers in the constitution. 

The case, set for oral argument on May 15, 2025 stems from three nationwide injunctions issued by federal judges blocking one of the Trump administration’s latest executive orders (Trump v. CASA, Inc., Trump v. Washington, Trump v. New Jersey). The Trump administration has asked the Supreme Court to limit the reach of any injunctive relief entered by federal district courts to the specific plaintiffs in each individual case.