Imran Rassiwalla
Recently, United States President Donald Trump signed an executive order restricting birthright citizenship for children born to illegal immigrants or those on temporary visas. This move was met with immediate legal pushback, with twenty-two states immediately suing the federal government over said executive order. To fully understand the scope of the issue though, it’s worth examining birthright citizenship more fully, its global origins, how it became rooted in the United States, and what this means for President Trump’s prospects going forward.
Jus soli, Latin for ‘right of soil,’ is the right of anyone born within a state to citizenship. President Trump has previously claimed that America is the only country in the world to have jus soli, and while this claim is overblown the system is fairly rare globally. Currently, 32 countries outside of America have systems of birthright citizenship. These countries are not distributed equally across the globe: they are primarily in North and South America where jus soli is the predominant system. Outside of the Americas, only two African countries and three Oceanic countries have unconditional birthright citizenship. Restricted jus soli, similar to the system President Trump hopes to implement, is more common globally. 38 countries outside of America have restricted systems of birthright citizenship. Furthermore, the United States is arguably already in this category, even before President Trump’s executive order, as those born in the U.S. territory of American Samoa do not acquire citizenship at birth unless one of their parents is an American citizen.
That last fact is often considered surprising, as most view America as almost a symbol of unconditional birthright citizenship due to its strong immigrant culture. However, this was not always the case. Federal laws on citizenship begin with the Naturalization Act of 1790, which recognized married women as the property of their husband, and while it did not prevent them from achieving citizenship, when married only the husband’s authority would be recognised. Nearly 60 years later in 1857, the Supreme Court ruled in Dred Scott v. Sandford that African Americans, whether free or slave, had never and could never become American citizens. Partially in response to this in the aftermath of the U.S. Civil War Congress passed the Civil Rights Act of 1866, which granted citizenship to anyone born in the United States except for those subject to a foreign power and to Native Americans who lived on reservations. The 14th Amendment to the United Constitution then enshrined this law into the constitution, stating “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.”
Most of the legal challenges against Trump’s executive order trace back to the birthright clause of the 14th Amendment. However, it is important to note that even in its own era the amendment didn’t stop citizenship from being denied to people who by all means should have complied. The Expatriation Act of 1907 made it so that women lost their citizenship upon marrying a non-citizen. Furthermore, the Asian exclusion act made it such that an American-born woman would lose her citizenship if she married any Asian immigrant, all of whom were now ineligible for citizenship. It wouldn’t be until 1936 that these laws restricting citizenship for women would be overturned. Additionally, it wasn’t until 1924 that Native Americans on reservations could finally claim citizenship.
America has long had a messy history with birthright citizenship, and our progress to a society where all born in America are citizens was not a straight path. Many times, America took one step forward and two steps back, like with the Chinese Exclusion Act. Trump’s executive order poses another potential setback for birthright citizenship. However, despite having appointed 3 of the 9 Justices on the Supreme Court, a court that now has a 6-3 conservative majority, many legal scholars still believe that it will be difficult for Trump to achieve his ambitions. Although the court has overturned precedent in the past, most notably and controversially with the Dobbs decision which overturned the unconditional right to abortion, the constitutional right to process was derived out of an implied right to privacy from the due process clause in the United States constitution. The Supreme Court’s predominant ideology is Originalism, or examining what the original framers of the constitution or any subsequent amendments intended, and from this perspective abortion was unconstitutional. However, as a response to Dred Scott, the framers of the 14th amendment did intend for it to truly extend birthright citizenship, and so restricting birthright citizenship would be a more difficult ordeal for the current court to agree upon or justify. Furthermore, President Trump restricted birthright citizenship through executive order, which is a mechanism with less statutory authority than Congress. Indeed, within days of Trump signing his executive order a Reagan appointed judge in Seattle temporarily blocked the order from taking effect, calling the order blatantly unconstitutional. Whether the court will agree with the Seattle judge, side with Trump, or take a stance in the middle remains yet to be seen.
Sources:
https://www.bbc.com/news/articles/c3605g34jx5o.amp
https://www.bbc.com/news/articles/c7vdnlmgyndo.amp
https://www.history.com/news/birthright-citizenship-history-united-states
https://amp.cnn.com/cnn/2025/01/31/americas/birthright-citizenship-america-analysis-intl-latam
Oxford Society for International Development 