Can Trump actually revoke birthright citizenship? Here's what the federal law will do

Mathew Miranda, The Sacramento Bee on Jan 21, 2025

By clicking submit, I authorize Arcamax and its affiliates to: (1) use, sell, and share my information for marketing purposes, including cross-context behavioral advertising, as described in our Privacy Policy , (2) add to information that I provide with other information like interests inferred from web page views, or data lawfully obtained from data brokers, such as past purchase or location data, or publicly available data, (3) contact me or enable others to contact me by email or other means with offers for different types of goods and services, and (4) retain my information while I am engaging with marketing messages that I receive and for a reasonable amount of time thereafter. I understand I can opt out at any time through an email that I receive, or by clicking here

Hours into his second presidency, Donald Trump signed an executive order to end birthright citizenship despite more than 100 years of legal precedent guaranteeing citizenship to every person born in the country.

Trump’s order Monday declares that future children born to undocumented immigrants will no longer be treated as citizens — a long-held interpretation of the 14th Amendment. The order, which takes effect Feb. 19, would also extend to the children of some parents who have legal status on a temporary basis.

Trump promised the policy change during his campaign, falsely claiming the U.S. is the only country that grants citizenship through birth. He called birthright citizenship “absolutely ridiculous” while signing the order on Monday.

But implementation is unlikely, according to many legal scholars.

“No reputable constitutional law scholar thinks that doing away with birthright citizenship is consistent with the 14th Amendment,” said Kevin Johnson, former dean of UC Davis’ School of Law and nationally recognized immigration expert.

The proposed policy change already faces several legal challenges, including those of California Attorney General Rob Bonta. In all likelihood, experts believe Trump has set the stage for a yearslong legal battle that will ultimately fail.

“We believe that this is just fundamentally unconstitutional, it’s illegal and it will be overturned,” said Deirdre Schifeling, chief political and advocacy officer for the American Civil Liberties Union.

On Monday, the ACLU and other organizations filed a lawsuit on behalf of immigrants’ rights groups in federal court in New Hampshire. Attorneys general from 18 states filed another lawsuit Tuesday.

What is birthright citizenship?

The broad legal consensus is that birthright citizenship is guaranteed through the 14th Amendment of the U.S. Constitution.

“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,” the first sentence of the 14th Amendment states.

The amendment was ratified following the Civil War to ensure all states were providing citizenship to Black people, Johnson said.

In 1898, the U.S. Supreme Court affirmed that a child born to noncitizen Chinese parents in San Francisco was “subject to the jurisdiction” and a U.S. citizen under the 14th Amendment in the case of Wong Kim Ark v. United States. Birthright citizenship has largely been unchallenged since then.

“Usually, when somebody doesn’t challenge a law for that long a period of time, it suggests that the law is pretty settled and there aren’t any good challenges to it,” Johnson said.

What is Trump proposing?

Trump’s executive order argues the 14th Amendment has never been interpreted to extend citizenship to anyone born in the country. Some legal scholars throughout the years supported that thinking, saying the 1898 Supreme Court ruling was interpreted too broadly.

The order, which is not retroactive, would exclude citizenship to future people if at least one parent isn’t an American citizen or green card holder. The proposed policy change also extends to people whose parents are in the country legally but temporarily, such as foreign students and tourists.

Under the order, people in those categories would not be recognized as citizens by federal agencies. That could mean the denial of a passport, citizenship certificates and other documents.

What are the chances the order will be upheld?

The order has already seen a barrage of criticism and will likely result in a legal battle that could take years and make its way to the U.S. Supreme Court.

The ACLU moved quickly following Trump’s signing, saying “the Constitution and Congress — not President Trump — dictate who is entitled to full membership in American society” in its lawsuit.

Schifeling said the order signaled a “racist and nationalist” message to newcomers.

“The idea that citizenship is hereditary is an anathema to what it means to be an American,” she said.

In a press conference Tuesday, Bonta said the president had “overstepped his authority by a mile.” Trump’s order would deny citizenship to more than 20,000 babies a year in California, he added.

“I am deeply disappointed that we are here one day into the administration and also not surprised,” Bonta said.

Gov. Gavin Newsom sent out a short written statement Monday night.

“This is unconstitutional,” Newsom said.

Regardless, experts say the order has minimal chances of being implemented and was designed to show Trump’s dedication to immigration enforcement. Johnson said even a conservative majority U.S. Supreme Court would likely rule against Trump.

“To me, this is one of the clear ones,” he said.

_______