By Augusto Zimmermann and Gabriël Moens AM.

Donald Trump, in one of his first acts as the 47^th president of the United States (U.S.), signed, on 20 January 2025, Executive Order 14156 aimed at denying the granting of citizenship to the children of parents who are either in the U.S. illegally or on temporary visas. The Order on Protecting the Meaning and Value of American Citizenship stipulates that ‘It is the policy of the United States that no department or agency … shall issue documents recognizing United States citizenship’ to these children. The Order tasks ‘The heads of all executive departments and agencies’ with the issuing of ‘public guidance within 30 days of the date of this order regarding this order’s implementation with respect to their operations and activities’.[1] Hence, the Order is unlikely to be applied retrospectively because it does not propose the withdrawal of those who have already received American citizenship.

Birthright citizenship is enshrined in the U.S. Constitution. The first sentence of the 14^th Amendment to the U.S. Constitution establishes the principle of “birthright citizenship”:

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 14^th Amendment, adopted in 1868, after the Civil War, purported to implement the principle of equality of all different races. Previous Supreme Court decisions, like Dred Scott v. Sandford in 1857, had decided that African Americans could not be U.S. citizens.[2] The 14^th Amendment sought to repudiate this ‘shameful decision’.[3]

However, immigration experts now contend that the Amendment’s provision has become a ‘magnet for illegal immigration’ and that it encourages pregnant women to illegally cross the border to give birth, an act that has been called ‘birth tourism’ or having an ‘anchor baby’.[4] According to Pew Research, about 1.2 million children were born to illegal immigrant parents in the United States in 2022, the latest year that data is available.

Can Trump resolve this dreadful problem? Of course, a constitutional amendment could undoubtedly resolve the problem, 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. Of immediate concern is the question whether Trump’s Executive Order can withstand a challenge to the constitutionality of the Order.

More than 30 countries adopt the “jus soli” or “right of the soil” principle, without restriction.[5] The United States fits into this case, since they adopt a very liberal model for the acquisition of citizenship. The United States is joined by Brazil, Argentina and Mexico, along with nearly every country in Central and South America. No country in Europe or East Asia has a similar citizenship model.

Jus soli is reminiscent of feudalism, where the socio-political organisation linked people and goods to the land. Today, it is justified by the need to incorporate the children of immigrants in the State where their parents arrived, with a clear intention to work and to participate in economic and social development.

Countries that offer birthright citizenship are located almost exclusively in the Western Hemisphere. The United States and Canada are the only two “developed” countries, as defined by the International Monetary Fund, that still have unrestricted birthright citizenship laws. Other countries, like the United Kingdom and Australia, allow for a modified version where citizenship is automatically granted if one parent is a citizen or permanent resident.

In 1898, the US Supreme Court, in the case of United States v. Wong Kim Ark, affirmed that birthright citizenship applies to the children of immigrants.[6] Wong was a 24-year-old child of Chinese immigrants, born in the U.S. but denied re-entry when he returned from a visit to China. Wong successfully argued that, because he was born in the US, his parents’ immigration status did not affect the application of the 14^th Amendment. In its judgment, a 6-2 decision, the Supreme Court wrote:

The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words …  the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which … by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

…

[T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory,… The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

The court has not re-examined these issues since then. Ultimately, the legality of President Trump’s Executive Order will be decided by the courts. Twenty-two states, along with the city of San Francisco and the District of Columbia, have already sued the federal government and challenged the constitutionality of the Executive Order.[7] Of course, the president is certainly allowed by law to order employees of federal agencies to interpret ‘citizenship’ more narrowly – agents with the U.S. Immigration and Customs Enforcement, for example. This would trigger legal challenges from anyone whose citizenship is denied, leading to court battles ultimately winding up at the U.S. Supreme Court.

It is often said that a fundamental tenet of the common law is that nobody should profit from their own wrong. But does the tenet apply to pregnant women illegally crossing the border to give birth on American soil?  Arguably, the original intent of the 14^th Amendment was to give citizenship to children born of parents legally inhabiting the American soil. Accordingly, it would be perfectly reasonable to assume that the phrase “and subject to the jurisdiction thereof” could be interpreted to exclude the granting of citizenship to children born to illegal migrants unauthorised by the State.

In an interview with NBC’s Meet the Press, Trump said he thought the children of illegal immigrants should be deported with their parents – even if they were born in the United States. ‘I don’t want to be breaking up families,’ Trump said last December. ‘So the only way you don’t break up the family is you keep them together and you have to send them all back.’[8] This is a perfectly valid concern. Whereas no child should benefit from the crimes of their parents, by the same token no child should be taken away from their parents. And yet, keeping the child on U.S. soil as a citizen, in circumstances where their parents would be eligible for deportation as illegal immigrants, would constitute a serious violation of the child’s rights to be raised by his or her biological parents.

Above all, no crime should be rewarded, and unauthorised immigration clearly is a crime under U.S. migration law. Birthright citizenship, introduced by the 14^th Amendment in 1868, was intended to be a transformative policy designed to address the injustices of slavery, not to benefit illegal immigration. Clearly, the intention of the constitutional legislator was never to reward illegal behaviour by illegal immigrants. Trump’s Executive Order, therefore, is valid because it does not violate the spirit and purpose of the 14^th Amendment.

Of course, the constitutionality of Trump’s Executive Order will be vigorously disputed in the courts. Indeed, a federal judge in Seattle has already issued a temporary restraining order to prevent the implementation of Trump’s Executive Order on Protecting the Meaning and Value of American Citizenship. District Judge John Coughenour said in his order that the Executive Order ‘is blatantly unconstitutional’.[9]

The judge’s view may well be bolstered by the U.S. Supreme Court’s decision in Wong Kim Ark.  However, we suspect that the primary purpose of the Executive Order is not to deny the granting of citizenship to children of illegal immigrants, but instead is a convenient, and effective, way to highlight the anomalous consequences of allowing the 14^th Amendment to be used for illegal conduct. At least, the Executive Order will succeed in forcing the Supreme Court to revisit Wong Kim Ark, thereby ensuring that a discussion of an important social issue becomes part of a wider evaluation of America’s immigration laws and policies. Such an outcome could only yield benefits for the American polity

Augusto Zimmermann is a professor of law and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University.

Zimmermann & Moens are the authors of The Unlucky Country (Locke Press, 2024).

[1] Executive Order 14156, ‘Protecting the Meaning and Value of American Citizenship’, available at https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/.

[2] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

[3] Section 1, Executive Order 14156, ‘Protecting the Meaning and Value of American Citizenship’, available at https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/.

[4] ‘Trump has vowed to end birthright citizenship. Can he do it?’, BBC, 22 January 2025, at https://www.bbc.com/news/articles/c7vdnlmgyndo.

[5] Will Cabaniss, ‘S.E. Cupp: Only about 30 other countries offer birthright citizenship, making U.S. ‘anomaly’’, Politifact, 23 August 2015, at https://www.politifact.com/factchecks/2015/aug/23/se-cupp/se-cupp-only-about-30-other-countries-offer-birthr/.

[6] United States v. Wong Kim Ark 169 U.S. 649 (1898)

[7] Tom Ozimek, ’22 States Sue to Block Trump’s Order to End Birthright Citizenship’, The Epoch Times, 21 January 2025, at https://www.ntd.com/18-states-sue-to-block-trumps-order-to-end-birthright-citizenship_1042242.html.

[8] ‘Trump has vowed to end birthright citizenship. Can he do it?’, BBC, 22 January 2025, at https://www.bbc.com/news/articles/c7vdnlmgyndo.

[9] Josh Gerstein, ‘Judger blocks Trump order on birthright citizenship’, Politico, 24 January 2025, at https://www.msn.com/en-us/news/us/judge-blocks-trump-order-on-birthright-citizenship/ar-AA1xKeT5.