Natural-Born or Non-Citizen? Birthright Citizenship in a Second Trump Presidency

President-elect Trump has made immigration and the U.S.-Mexico border critical issues in all three of his presidential campaigns. Amidst his recent re-election, one of Trump’s past key issues has resurfaced—birthright citizenship. In 2023, Trump claimed he would do away with this long-standing American right if elected president again. Despite birthright citizenship being deeply enshrined in United States law and history, the former president has continually advocated for its revocation. Still, constitutional barriers such as the 14th Amendment's Citizenship Clause and the landmark Supreme Court case United States v. Wong Kim Ark both threaten the legal viability of Trump’s potential birthright citizenship erasure. Trump is far from the only political figure who has advocated for its removal. Contemporary arguments against birthright citizenship universally harken back to 19th-century racial and national arguments made in United States v. Wong Kim Ark. Trump’s presidential win has reinvigorated challenges, especially as current anti-immigration sentiment grows. If instituted, the removal of birthright citizenship would uproot centuries of U.S. legal precedent and have disastrous implications for the citizenship status of children of immigrants now and for years to come. 

Birthright citizenship, known in legal terminology as jus soli, has remained constant in United States law since the country’s origin. The United States’ birthright citizenship law was adapted from English common law under which a person’s citizenship was expressed “based upon place of birth,” automatically allowing them to fall under the jurisdiction of that region. Though practiced in the United States throughout the 18th and early 19th centuries, the 14th Amendment cemented birthright citizenship into law. The Citizenship Clause of this amendment emphasizes that any individual “born or naturalized” in the United States and subject to the country’s jurisdiction is a citizen. Though this Reconstruction-era amendment was ratified primarily to ensure the citizenship and legal protections of formerly enslaved individuals, it further ensured the rights to citizenship for children of immigrants and non-citizen parents. Save for a few legal challenges since this amendment’s ratification, birthright citizenship has seldom wavered throughout history. 

United States v. Wong Kim Ark was the major Supreme Court case that cemented birthright citizenship in the country. This 1898 decision emerged from a test case brought forth by the federal government in an attempt to restrict birthright citizenship. An influx of Chinese immigration characterized this period in United States history. This trend created racial anxieties that birthed legislation such as the Chinese Exclusion Act, barring Chinese laborers from immigrating to the United States. Wong Kim Ark, a United States citizen born in San Francisco to Chinese parents, served as the central figure in this landmark case. After a steamship voyage back to the United States from China, a customs officer prevented Wong from de-boarding the ship, denying him claims to citizenship under the Chinese Exclusion Act. Despite the fact that Wong was born in the United States and his parents were lawful residents of the country, customs officers prevented his entry on the basis of “race, language, color, and dress.” Though a California state court found that Wong was a lawful citizen under the 14th Amendment’s Citizenship Clause, the United States government appealed this decision to the Supreme Court. Lawyers arguing on behalf of the United States zeroed in on the “jurisdiction” component of the 14th Amendment, emphasizing that although Wong was born in America, he and his parents still harbored loyalties to China and were therefore under the jurisdiction of the Chinese emperor. The Fuller Court, despite its reputation as one of the most racist iterations of the Court, ruled in favor of Wong Kim Ark. The majority opinion claimed that the 14th Amendment expressly states that all persons born in the United States, with few exceptions, are automatically citizens and fall under U.S. jurisdiction. It asserted that the status of Wong and his parents as permanent residents implies that they are not diplomatically or legally tied to the Chinese emperor. Still, this decision was not made out of pure sympathy for Chinese immigrants or a desire for their acceptance into society. Rather, United States v. Wong Kim Ark focused on the implications of eradicating birthright citizenship in America, a country built on immigration. Eliminating birthright citizenship would mean the repeal of citizenship for all Americans of European descent whose parents are non-citizens. Though the core motives of this ruling harbored racist sentiments and aimed to preserve American white supremacy, it inadvertently protected the citizenship of children of immigrants for years to come.

Despite this Court precedent protecting birthright citizenship for the decades to follow, this right has faced constant threats from political figures and government officials. Recent challenges from individuals including President-elect Donald Trump illustrate that attacks on birthright citizenship have endured far past the 19th century. Trump claimed in 2018 and throughout his 2024 campaign that he seeks to end birthright citizenship for children of undocumented immigrants through executive order. A campaign press release outlining his immigration policy plan stated that if at least one parent is not a lawful permanent resident, a U.S.-born child of an immigrant will not receive automatic citizenship nor legal documents such as a passport and social security card. President-elect Trump claims automatic birthright citizenship creates a “magnet for illegal immigration.” He asserts that his anti-immigrant policies will deter illegal immigration alongside “Birth Tourism,” in which individuals pay U.S.-based entities to give birth to children in the United States for automatic citizenship. However, the prevalence and scale of this phenomenon are likely grossly exaggerated. Trump’s press release outlining his immigration plans seems to use the same argument employed by the United States in United States v. Wong Kim Ark. It claims that simply being born in the country is not enough for citizenship, emphasizing that one must be under the “jurisdiction thereof.” Although the press release does not expand upon Trump officials’ definition of “jurisdiction,” it implies that these individuals’ disloyalty to the United States should prevent them from obtaining citizenship. Trump’s is not the only contemporary challenge to birthright citizenship that references 19th-century arguments. The 2023 proposed House bill, End Birthright Citizenship Fraud, also emphasizes that citizenship requires an ambiguously defined “national loyalty.”

Among other attempts to revoke birthright citizenship, Trump’s efforts will undoubtedly face significant legal challenges due to the Supreme Court precedent of United States v. Wong Kim Ark. Though arguments against birthright citizenship regularly cite the 14th Amendment’s emphasis on jurisdiction, most interpretations of this amendment favor the preservation of birthright citizenship, highlighting its declaration that those born within the United States are automatically citizens. Even when Trump made similar claims to revoke birthright citizenship in 2018, legal scholars were skeptical of whether Trump could achieve such an action via executive order. Moreover, the judicial review capabilities on executive orders could result in Courts striking down these efforts as unconstitutional. Still, given the current conservative majority in the Supreme Court, it is possible that the Court could greenlight Trump’s executive order. Regardless, as emphasized in the Wong decision, birthright citizenship revocation would have transformative impacts on American law and subvert centuries of precedent. It would undoubtedly create unknown challenges for children of immigrants going forward.

Sinclair Harris is a sophomore concentrating in History and International & Public Affairs. She is a blog staff writer for the Brown Undergraduate Law Review. She can be reached at sinclair_harris@brown.edu.

Maia Eng is a junior at Brown University concentrating in International and Public Affairs. He is an editor for the Brown Undergraduate Law Review and can be contacted at maia_lourdes_eng@brown.edu