WHAT YOU SHOULD KNOW ABOUT BIRTHRIGHT CITIZENSHIP UNDER THE U.S. CONSTITUTION AND HOW IT MAY BE ATTACKED

Did you know that if you’re born on U.S. soil, you’re automatically an American citizen? This principle is deeply rooted in our Constitution, established as part of the 14th Amendment following the Civil War. It was a monumental step toward equality and clarity on citizenship rights. But this long-standing principle could be on shaky ground.

Former President Donald Trump has pledged to end birthright citizenship if re-elected, sparking a constitutional debate that may soon involve the Supreme Court. Can he actually do this?
Let’s rewind to 1868. The 14th Amendment was added to the Constitution to make it clear: anyone born on American soil is a citizen of the United States. This was a deliberate effort to protect the rights of all people born here, regardless of their parents’ status.

The Constitution explicitly guarantees citizenship by birth. Altering that guarantee would require either a constitutional amendment or a drastic reinterpretation by the Supreme Court—a move that could reshape the legal landscape for generations.

Let’s clear up some misconceptions about birthright citizenship. Since there’s quite a bit of confusion surrounding this issue, let’s dive into its historical roots.

At the founding of the United States, racial inequality was not just a social norm—it was codified into law. Around the time of the American Revolution, nearly half the population in the southern states owned enslaved individuals as property.

This stark inequality carried over to the Constitutional Convention of 1787, where one of the most contentious debates centered on how enslaved people would be counted for congressional representation. Slaveholding states wanted to count enslaved individuals to boost their representation, while non-slaveholding states opposed this. The result was the infamous Three-Fifths Compromise, where enslaved people were counted as three-fifths of a person for census purposes. Additionally, Native Americans were excluded from being counted altogether.

By the mid-19th century, free Black individuals lived in America, but they were often denied basic rights. In the 1856 Dred Scott v. Sandford decision, the Supreme Court ruled that descendants of enslaved Africans were not and could never be citizens, regardless of their free status or residence.

This legal precedent was overturned only after the Civil War. In 1863, President Abraham Lincoln issued the Emancipation Proclamation, and shortly thereafter, the Thirteenth Amendment abolished slavery nationwide. With the Confederacy defeated, the Three-Fifths Compromise was rendered meaningless. However, this led to a new question: were the formerly enslaved and their descendants now full citizens?
During Reconstruction, Congress addressed this issue with the Civil Rights Act of 1866. This landmark legislation declared that all individuals born in the United States, except for those under foreign jurisdiction or Native Americans not taxed, were U.S. citizens.

Two years later, Congress solidified this principle in the Constitution with the 14th Amendment and its Citizenship Clause.

This amendment was a transformative moment in American history, enshrining birthright citizenship as a fundamental constitutional right. Its language is clear and unambiguous, leaving little room for reinterpretation without a constitutional amendment or a drastic shift in judicial interpretation.
After the Civil War, freed slaves were, at least in theory, granted full citizenship under the law. The 14th Amendment to the Constitution leaves little room for interpretation: if you are born on U.S. soil, you are an American citizen. There are only two narrow exceptions, which we’ll explore shortly.

To understand the power and scope of birthright citizenship, let’s examine a case every law student studies early on: United States v. Wong Kim Ark.

Wong Kim Ark was born in San Francisco in 1873 to Chinese immigrant parents. His parents, Chinese citizens, came to America to work as laborers but later returned to China, bringing Wong with them. In 1895, Wong attempted to return to the United States but was denied entry. The government argued that despite being born in America, Wong was not a U.S. citizen because his parents were not U.S. citizens when he was born. Instead, they were Chinese subjects, which the government claimed excluded Wong from U.S. jurisdiction under the 14th Amendment.

The Supreme Court disagreed. In their landmark decision, the Court clarified that the phrase “not subject to the jurisdiction” under the 14th Amendment applies to only two specific groups:
Foreign diplomats and their families: Ambassadors and consular officials enjoy diplomatic immunity, meaning they are not fully subject to U.S. laws. Embassies, for example, are treated as foreign territory, so children born within an embassy are not granted U.S. citizenship.

Children of enemy soldiers occupying U.S. territory: During a hostile invasion, enemy soldiers are not considered under U.S. jurisdiction, and their children born on occupied U.S. soil would not automatically gain citizenship.

In ruling in favor of Wong, the Supreme Court reaffirmed what it called the “ancient and fundamental rule” of birthright citizenship. The Court stated:
“The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in allegiance and under the protection of the country, including all children here born of resident aliens, with exceptions as old as the rule itself: children of foreign sovereigns or their ministers, children born on foreign public ships, or children of enemies within and during a hostile occupation, and one additional exception: children of members of Indian tribes owing direct allegiance to their tribes.”

The Court concluded that the amendment applies to all children born within the United States to parents domiciled here, regardless of their race, color, or national origin. The critical test is whether the parents are subject to U.S. laws, which all resident aliens are.

On August 12, 2020, a conservative law professor published an opinion piece in Newsweek questioning the eligibility of then-Senator Kamala Harris to run for President. The argument was based on a misrepresentation of Wong Kim Ark: the claim that only children of lawful permanent residents are entitled to citizenship under the 14th Amendment. The professor speculated that Harris’s parents, who were likely in the U.S. on student visas, made her ineligible for birthright citizenship.

This argument dismissed the clear language in Wong Kim Ark, which explicitly exempted only the children of foreign diplomats or soldiers from enemy armies occupying U.S. territory. The professor referred to this language as “dicta,” or non-binding commentary, but legal scholars widely recognize that Supreme Court dicta carries significant weight and is often treated as law.

The article sparked outrage, with many condemning it as a thinly veiled attempt to perpetuate the same xenophobic narratives that fueled the “birther” conspiracy against President Barack Obama. Newsweek ultimately apologized, acknowledging the harm caused by the piece and its misuse to further racism and xenophobia.

The author of that controversial article? John Eastman, a name that has since become associated with other polarizing legal arguments.

John Eastman has been a prominent opponent of birthright citizenship for decades, often challenging the legal precedent established by United States v. Wong Kim Ark. In 2005, he testified before Congress, asserting that Wong Kim Ark was wrongly decided and that lawmakers should feel free to disregard it.
Mr. Eastman opened his congressional testimony with a controversial and historically inaccurate claim. He argued that the Three-Fifths Compromise was not racist against Black people. Instead, he claimed its sole purpose was to reduce the political representation of slave owners. This framing conveniently ignores the reality: the compromise still dehumanized enslaved Black individuals, counting them as less than a full person, and was deeply entwined with the systemic racism of the era.

Such arguments reflect a broader trend of fringe beliefs being thrust into mainstream discussions. While the principle of open debate is central to democracy, it can sometimes amplify ideas that misrepresent history and undermine long-standing legal rights.

The hostility toward birthright citizenship is not limited to John Eastman. Michael Anton, a former speechwriter for Rupert Murdoch and later a White House policy director under the Trump administration, echoed similar sentiments. He claimed that the Supreme Court’s decision in United States v. Wong Kim Ark has been misunderstood for over a century. According to Anton, the decision applies only to the children of lawful residents, not individuals residing in the U.S. without authorization.

Such claims not only misrepresent the clear legal precedent set by Wong Kim Ark but also perpetuate misconceptions about one of the most fundamental guarantees of the 14th Amendment. Birthright citizenship is not merely a legal technicality; it embodies the promise of equal opportunity and inclusion that underpins the American ideal.

Let’s dive into the heart of the latest legal challenge involving the 14th Amendment, Texas border enforcement, and its implications. We’ll start in Eagle Pass, Texas—a frequent crossing point for undocumented migrants—where state officials have erected a highly controversial barrier right in the middle of the Rio Grande. The stated justification? Texas officials claim this is all about protecting migrants from dangerous crossings. But that same “safety measure” also includes rolls of razor wire along the riverbanks, preventing migrants from coming ashore. Tragically, multiple individuals have already drowned after becoming entangled in what many describe as a floating trap.

The Biden Administration sued Texas, demanding the removal of the barrier. The Justice Department argues that the Rio Grande is a navigable waterway, making the blockade a violation of the Rivers and Harbors Act of 1899, which prohibits unauthorized obstructions of navigable waters.

Texas, however, countered with a different perspective. State officials argued that the Rio Grande isn’t navigable and, even if it were, they claim the state has a right to bypass federal border laws. Their reasoning? Texas is supposedly under “hostile invasion” by undocumented immigrants and asylum seekers.

On January 24, 2024, Texas Governor Greg Abbott announced a bold and controversial move: invoking the Constitution’s Article I, Section 10, Clause 3 to declare an “invasion.” In essence, Abbott is framing the situation as Texas being at war with what he describes as an “occupying army” of immigrants, giving the state the right to bypass federal laws. But is this legal theory viable?

The initial court rulings did not favor Abbott’s argument. Both the trial court and a three-judge panel from the Fifth Circuit Court of Appeals sided with the Justice Department. They ruled that the Rio Grande qualifies as a navigable waterway under the Rivers and Harbors Act, making Texas’s floating barrier a violation of federal law.

In his decision, U.S. District Judge David Ezra firmly rejected the notion that undocumented immigration constitutes an “invasion” under the Constitution, writing:

“States may not exercise immigration enforcement power except as authorized by the federal government, and surges in immigration do not constitute an invasion within the meaning of the Constitution, nor is Texas engaged in war by enforcing this law.”

Unwilling to accept the decision, Governor Abbott directed the state to appeal. When the Fifth Circuit Court of Appeals convened en banc—a full panel of its justices—its conservative majority reversed the earlier ruling. The court found that the Rio Grande is not a navigable waterway, thus allowing Texas to maintain its floating barrier.

However, the appeals court declined to address the broader constitutional question of whether undocumented migrants constitute an invasion under the so-called Actual Invasion Clause. This restraint aligns with longstanding judicial precedent against issuing constitutional rulings unless necessary to resolve a specific case.

However, one particular judge’s views are raising eyebrows—Judge James Ho, a judge on the Fifth Circuit Court of Appeals and someone who has shown interest in becoming a Supreme Court justice. Vox’s Ian Millhiser has even labeled him “the edgelord of the federal judiciary” for his often controversial and combative rulings.

Judge Ho has been known to defend unpopular positions, including advocating for the rights of individuals with criminal backgrounds, such as wife beaters and child abusers, to possess firearms. He’s also publicly criticized law schools like Columbia University for promoting what he sees as “cancel culture” and “wokeness” and has made a point of misgendering transgender litigants in his court.

Judge James Ho recently made waves with his views on undocumented migrants and the “Actual Invasion Clause” in the case involving the Rio Grande barrier. In his concurrence, Judge Ho went out of his way to argue that undocumented migrants could indeed be categorized as invaders, invoking a constitutional clause often referred to as the “Actual Invasion Clause.”

Following Trump’s election, Judge Ho spoke with conservative legal scholar Josh Blackman about his views, connecting birthright citizenship to his theories on national security and invasion. Judge Ho emphasized that, according to his interpretation, the 14th Amendment’s guarantee of birthright citizenship would not apply in times of war or invasion. Judge Ho’s interpretation draws a distinction between lawful combatants and unlawful combatants, arguing that the latter should not be afforded greater rights than the former.

Shockingly, it appears a growing group of fringe Republicans are labeling immigrants entering the United States illegally for economic opportunities or to flee persecution as “unlawful combatants.” This is a cataclysmic shift in immigration policy and could have a profound effect on the law of war.

In case you’re wondering what’s really going on here, the state of Texas is advancing a theory that treats undocumented immigrants as an invading force. And Judge Ho is essentially endorsing this idea, suggesting it could serve as a way to bypass the 14th Amendment. All one needs to do, according to this argument, is declare that the nation is being attacked by desperate individuals fleeing war and poverty, and just like that, the Constitution—and over a century of Supreme Court rulings—can be set aside.
Looking ahead, expect Donald Trump and his allies to use this approach as a regular tactic, declaring “emergencies” to skirt congressional oversight and ignore the separation of powers laid out by the Constitution. It seems like it could become one of Trump’s signature legal maneuvers.

President Trump has stated his plan to challenge the 14th Amendment and fundamentally change the rules regarding birthright citizenship. As we move forward, this is an area of law to watch closely, as Texas and others push their arguments that could have lasting effects on immigration policy in the U.S.
Now, this might not be a clear legal strategy, but let’s play along and consider the possibility that Trump might indeed take action on this issue. If he does, it’s likely to come in the form of an executive order. This order could claim that over 130 years of established law, along with a clear constitutional amendment, are simply wrong. Specifically, he might argue that the phrase “subject to the jurisdiction” in the 14th Amendment never applied to undocumented immigrants.

Alternatively, following the line of reasoning from Judge Ho, he could declare that immigrants are essentially an invading force, illegally occupying U.S. territory. It’s even possible that Trump could blend both of these contradictory positions into one order, despite the inherent conflict.

Whatever justification Trump uses, the outcome could be significant: he may instruct federal agencies to deny citizenship-related benefits to children of undocumented immigrants. This could include directives to the Social Security Administration to withhold Social Security numbers from newborns in these families, and the State Department could be directed to deny passports to children of undocumented immigrants, even if they were born on U.S. soil.

It’s likely that states like Texas will begin issuing birth certificates that clearly state the children of undocumented immigrants are not entitled to the rights of citizenship. These moves will almost certainly be challenged in court, and there’s a strong chance these rulings will be put on hold until the Supreme Court makes a final decision.

While 130 years of precedent should make us confident about the outcome, the recent decisions from the Supreme Court have shown us that the future of U.S. law is more uncertain than ever.

Looking back at Trump’s actions during his final term, including the separation of children from their parents at the border, it’s not hard to imagine a scenario where children born in the U.S., and thus entitled to citizenship, are deported along with their parents if the parents are sent back to their home countries.

This has the potential to affect an estimated 4 million families across the country who have mixed immigration status — where the parents may be undocumented but their children are legal citizens.
The true impact of this policy will become clear when we focus not just on the political debate, but on the real human beings it will affect. We cannot ignore the families whose lives will be disrupted by such policies, nor can we turn a blind eye to the new wave of immigrants who are simply trying to build a better future for their children.

The U.S. immigration system is undeniably broken. It’s inefficient, ineffective, and leaves too many people in limbo. If the Trump administration truly wants to fix the immigration system, it should first focus on creating an effective and efficient process for both undocumented immigrants and those seeking to immigrate legally. It can then use this system to address the current immigration problem.

*Special thanks to Devon at Legal Eagle for inspiring this article. https://www.youtube.com/@LegalEagle