Birthright Citizenship: The Legislative Path

The Supreme Court is currently considering Trump v. Barbara, No. 25-365, which presents the question of whether the Citizenship Clause of the Fourteenth Amendment automatically extends United States citizenship to children born on U.S. soil to parents present in the country illegally or on temporary non-immigrant visas. Oral arguments were heard on April 1, 2026. A decision is expected by the end of the October 2025 Term.

The case originates from Executive Order 14160, signed January 20, 2025, which directs federal agencies to deny citizenship documentation to children born after February 19, 2025 to parents who are both present without lawful status. The order has been blocked by a class-wide preliminary injunction in Barbara v. Trump (D.N.H.) since July 2025.^[4] An adverse ruling on the merits would close the executive path. The legislative path remains open in either outcome.

The Constitutional Question

The Fourteenth Amendment, Section 1, states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The administration's position is that the phrase "subject to the jurisdiction thereof" excludes persons whose presence in the country is itself a violation of federal immigration law.

The 1866 ratification debates support a narrow reading of the clause. Senator Lyman Trumbull, principal author of the Civil Rights Act of 1866 that the Amendment was designed to constitutionalize, defined "subject to the jurisdiction" on the Senate floor as "not owing allegiance to anybody else."^[14] The exclusions Congress identified during the debates were foreign diplomats and tribal Native Americans, both of whom owed primary legal allegiance to a competing sovereign.

The controlling Supreme Court precedent is United States v. Wong Kim Ark, 169 U.S. 649 (1898). The Court held that a child born in the United States to Chinese parents who were lawful permanent residents was a citizen at birth. The holding was tied to the parents' lawful status. The administration's argument does not require overruling Wong Kim Ark; it requires the Court to hold that the precedent does not extend to children whose parents entered or remained in the country in violation of federal law.

Legislative Tools

Section 5 of the Fourteenth Amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Two bills currently pending in the 119th Congress invoke that authority.

The Birthright Citizenship Act of 2025 (H.R. 569 / S. 304), introduced January 2025 by Representative Brian Babin and Senator Lindsey Graham, amends 8 U.S.C. § 1401 to require that at least one parent be a U.S. citizen, lawful permanent resident, or active-duty member of the Armed Forces at the time of the child's birth. The bill applies prospectively only. The same legislation has been introduced in every Congress since 1993 and has never received a floor vote in either chamber.

The Constitutional Citizenship Clarification Act of 2025 (S. 2274 / H.R. 4741), introduced July 15, 2025 by Senator Tom Cotton, takes a different drafting approach. Rather than amending the citizenship statute directly, it defines "subject to the jurisdiction thereof" for purposes of the Fourteenth Amendment as excluding persons present in the country without lawful authorization, persons present solely on temporary non-immigrant visas, and persons engaged in hostile occupation or espionage. The legislation is framed as Congress exercising its Section 5 enforcement power to give the Amendment's jurisdictional requirement substantive content.

The Cotton bill is the stronger drafting. After City of Boerne v. Flores, 521 U.S. 507 (1997), Congress's Section 5 authority is interpreted as power to enforce the Amendment as the Court has construed it, not to alter the substantive scope of constitutional rights. Legislation framed as definitional clarification of an open constitutional question is more defensible under Boerne than legislation framed as a statutory override.

A third statutory change, not yet introduced as standalone legislation, would close the I-130 immediate-relative petition pathway for citizen children whose parents were present in the country illegally at the time of the child's birth. This change does not affect the citizenship of the child. It eliminates the principal long-term incentive for illegal immigrants to give birth in the United States by closing the eventual sponsorship pathway to permanent residency for the parents.

Executive Tools

Three executive actions are available under existing statutory authority and do not require either a court ruling or new legislation.

First, the Department of State can tighten passport application requirements to require documentation of parental immigration status at the time of the applicant's birth. This action does not deny citizenship; it creates a verifiable evidentiary record that supports future enforcement and complicates fraudulent applications.

Second, the Department of State can issue an internal memorandum directing consular officers to deny B-1 and B-2 non-immigrant visas to applicants who are visibly pregnant and lack strong ties to the home country. The Center for Immigration Studies estimates more than 33,000 birth tourism births per year, concentrated among Chinese and Russian nationals.^[15] Visa denials at the consular post are not subject to judicial review under existing doctrine.

Third, U.S. Immigration and Customs Enforcement can be directed to treat the presence of a U.S.-citizen child as legally irrelevant to the deportation calculus for parents present without lawful status. The current informal practice of treating citizen children as a de facto bar to enforcement is not required by statute. Removal of the parents during the child's minor years produces the same practical family-unit outcome as a citizenship ruling.

International Precedent

The United Kingdom ended unconditional jus soli citizenship in the British Nationality Act 1981, requiring at least one parent to be a British citizen or settled resident. Australia did the same in the Australian Citizenship Amendment Act 1986. Ireland amended its constitution by referendum in 2004; the amendment passed with 79% of the vote.^[19] New Zealand amended the Citizenship Act in 2005. None of these reforms required a court ruling that the existing rule was unconstitutional. Each was accomplished through ordinary legislative process.

The United States and Canada are now the only major developed nations that extend automatic citizenship to every child born on national soil regardless of parental status.

Recommendation

The Center for Assimilation supports enactment of the Constitutional Citizenship Clarification Act (S. 2274 / H.R. 4741) as the strongest available legislative vehicle. The drafting positions Congress's Section 5 authority as a clarification of an open constitutional question rather than a statutory override of judicial precedent, which is the posture most likely to survive challenge under City of Boerne v. Flores.

A companion measure closing the I-130 immediate-relative petition pathway for parents who were present in the country illegally at the time of the citizen child's birth should be introduced and enacted alongside it. This measure does not affect the child's citizenship status. It eliminates the principal demographic incentive that makes birthright citizenship for children of illegal immigrants a long-term immigration policy problem.

The substantive policy goal is to align the United States with the international standard observed in the United Kingdom, Australia, Ireland, and New Zealand: citizenship as a function of parental legal status rather than mere geographic location of birth. Whether enactment occurs in the current Congress, the next Congress, or a subsequent administration is a separate question from whether the policy is correct. The Center for Assimilation's position is on the policy. The legislative timing is determined by Congress.

Sources

The Constitutional Question

Legislative Tools

Executive Tools

Three executive actions are available under existing statutory authority and do not require either a court ruling or new legislation.

International Precedent

The United States and Canada are now the only major developed nations that extend automatic citizenship to every child born on national soil regardless of parental status.

Birthright Citizenship: The Legislative Path

Key Findings

The Constitutional Question

Legislative Tools

Executive Tools

International Precedent

Recommendation

Sources

Birthright Citizenship: The Legislative Path

Key Findings

The Constitutional Question

Legislative Tools

Executive Tools

International Precedent

Recommendation

Sources