On January 20, 2025, President Donald Trump issued an executive order aiming to end birthright citizenship for children born in the United States to parents without legal immigration status.
The executive order redefines the scope of birthright citizenship under the 14th Amendment by excluding certain children born in the United States from automatically receiving U.S. citizenship. Specifically, it states that citizenship will not be granted to individuals born to mothers who were unlawfully present in the United States at the time of birth, if the father was neither a U.S. citizen nor a lawful permanent resident. Additionally, children born to mothers lawfully but temporarily present in the United States (e.g., on tourist, student, or work visas) are also excluded if the father does not meet the same citizenship or residency criteria. The order applies only to individuals born in the U.S. 30 days after its issuance, and it does not affect children of lawful permanent residents or others entitled to citizenship under existing law.
In our view, the executive order’s applicability to children born to pending asylees or individuals with pending green card applications is arguably limited, as these individuals are legally authorized to remain in the United States while their cases are adjudicated. Unlike individuals unlawfully present or those temporarily visiting on visas, pending asylees and green card applicants fall into a distinct legal category, granting them lawful presence under immigration regulations. Consequently, the order’s exclusion of children born to those “unlawfully present” or “temporarily present” does not appear to encompass children of pending asylees or green card applicants, whose status provides a legal basis for their stay in the country. However, this distinction will likely be tested in court, given the complex interplay between immigration policies and constitutional protections.
To enforce this policy, federal agencies are directed to ensure compliance and issue guidance within 30 days of the order’s issuance. The order also includes provisions clarifying its implementation, stating that it does not impair legal authority granted to federal departments, nor does it create new enforceable rights against the government. Key definitions, such as “mother” and “father,” are strictly biological, emphasizing the scope of the policy. While the order claims to operate within the boundaries of existing laws, it has significant implications for birthright citizenship, challenging long-standing interpretations of the 14th Amendment.
In my personal capacity as an immigration attorney and advocate for legal and effective immigration policies, I firmly believe in the importance of securing the US borders and maintaining the integrity of our immigration system. Policies such as ending “catch and release” for individuals claiming asylum and the “Remain in Mexico” program have addressed pressing concerns about border security and systemic abuse of immigration processes. However, the recent executive order attempting to deny U.S. citizenship to certain children born on American soil crosses an unmistakable constitutional line. While I support robust immigration enforcement, this order undermines the very principles upon which our democracy is built and flagrantly disregards the Constitution’s guarantees.
The American Civil Liberties Union (ACLU), joined by a coalition of advocacy organizations, has filed a lawsuit to challenge this unconstitutional action. This case represents a critical defense of birthright citizenship, a principle enshrined in the 14th Amendment of the U.S. Constitution. The amendment explicitly states, “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.” Ratified in 1868 to overturn the Dred Scott decision, the 14th Amendment guarantees equal rights for all individuals born in the United States, regardless of race, color, or ancestry. This bedrock principle was further cemented in United States v. Wong Kim Ark (1898), where the Supreme Court affirmed that children born to immigrant parents on U.S. soil are entitled to citizenship.
The lawsuit contends that the executive order is unconstitutional, violating not only the 14th Amendment but also long-standing Supreme Court precedent and congressional intent. As Cody Wofsy, deputy director of the ACLU’s Immigrants’ Rights Project, aptly stated, “Denying citizenship to babies born on U.S. soil is illegal, profoundly cruel, and contrary to our values as a country.” This reckless policy seeks to create a permanent underclass of stateless individuals, a move that is not only legally indefensible but also morally reprehensible.
The human toll of such a policy is undeniable. Take, for instance, a couple represented in the lawsuit: asylum seekers and members of New Hampshire Indonesian Community Support. As they await a decision on their asylum application, they face the grim reality that their child, due in just weeks, could be born without citizenship, deprived of basic rights and protections. Such children would be denied access to healthcare, identification, and the full benefits of American society, even though they were born on U.S. soil and have no ties to any other country. This is not just a legal issue—it is a question of whether we will honor the fundamental values of fairness, equality, and inclusivity.
Furthermore, this executive order sends a damaging message that undermines the very fabric of our nation. As Aarti Kohli, executive director of the Asian Law Caucus, emphasized, “If you’re born here, you are a citizen — period. No politician, including President Trump, can decide who is American and who is not.” Birthright citizenship has been especially critical to immigrant communities, including Asian Americans, who have faced decades of exclusionary laws. The legacy of Wong Kim Ark reminds us that America’s strength lies in its diversity and its commitment to the principles enshrined in the Constitution.
This issue has significant legal and societal implications that will likely culminate in a review by the U.S. Supreme Court. The Court will be tasked with reaffirming the constitutional guarantee of birthright citizenship, a cornerstone of American democracy for over 150 years. The stakes could not be higher, as the decision will not only impact countless U.S.-born children but also define how this nation upholds its constitutional commitments to equality and justice. Advocates, including myself, remain confident that the Supreme Court will uphold the principles of the 14th Amendment, delivering a decisive rebuke to any attempt to undermine the rights of those born on American soil.
At Bogin, Munns & Munns, we understand the complexities and emotional toll of navigating immigration policies, particularly during times of uncertainty and change. Our dedicated Immigration Department is here to provide clarity, guidance, and strong advocacy for individuals and families facing these challenges. If you or your loved ones have questions about how this executive order or other immigration policies may impact your rights, don’t hesitate to reach out. Contact us today to schedule a consultation and let our experienced team help you protect what matters most.
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