01-29-2025

Protecting the Meaning and Value of American Citizenship

Executive OrderView the Original .pdf
View the Original .pdf

The 1-Minute Brief

What: Executive Order 14160, signed on January 20, 2025, directs federal agencies to deny U.S. citizenship to children born in the United States if their mother was unlawfully present or on a temporary visa at the time of birth, and their father was not a U.S. citizen or lawful permanent resident. This action seeks to reinterpret the long-standing application of the 14th Amendment's Citizenship Clause.

Money: There is no official Congressional Budget Office (CBO) score for Executive Order 14160. However, analyses of similar proposals suggest significant economic consequences. Ending birthright citizenship could increase the undocumented population, potentially creating a "permanent underclass" and a larger shadow economy. Some estimates project that verifying the citizenship of every newborn could impose new costs on all American parents, potentially amounting to over $1,000 in government and legal fees per child, and $2.4 billion in direct federal fees annually.

Your Impact: For most Americans who are U.S. citizens, the direct impact is negligible unless they need to prove their children's citizenship under new, more stringent documentation processes. The most significant impact is on the children of non-citizens born in the U.S., who would be denied automatic citizenship, potentially creating a class of stateless individuals. This could lead to a multi-generational underclass with limited access to education, healthcare, and employment.

Status: Signed by the President on January 20, 2025, and was scheduled to take effect for children born after February 19, 2025. The order was immediately challenged in court and is currently blocked by multiple nationwide preliminary injunctions from federal courts. The Supreme Court has ruled on the scope of these injunctions but has not yet ruled on the constitutionality of the executive order itself.

What's Actually in the Bill

Executive Order 14160 fundamentally alters the federal government's policy on birthright citizenship. It instructs all executive departments and agencies, including the Department of Homeland Security, the State Department, and the Social Security Administration, to cease recognizing the U.S. citizenship of certain individuals born within the United States. This marks a significant departure from over 150 years of interpretation of the 14th Amendment.

Core Provisions:

  • The order denies automatic U.S. citizenship to children born in the U.S. under two specific conditions:
    1. The mother was unlawfully present in the U.S. at the time of the child's birth.
    2. The mother was lawfully in the U.S. on a temporary basis (e.g., tourist, student, or work visa) at the time of birth.
  • An exception is made if the child's father is a U.S. citizen or a lawful permanent resident at the time of birth.
  • The policy applies only to persons born in the United States after February 19, 2025.
  • It directs all executive agencies to issue public guidance within 30 days on how they will implement this new policy. [Executive Order 14160, Sec. 3]

Stated Purpose (from the Sponsors):

The executive order states that its purpose is to protect "the meaning and value of American citizenship." [Executive Order 14160, Sec. 1] It argues that the 14th Amendment has been misinterpreted and was never intended to grant citizenship to the children of parents who are in the country unlawfully or temporarily. The administration contends this action will discourage illegal immigration by closing what it views as a "loophole."

Key Facts:

Affected Sectors: Immigration, Healthcare, Social Services, and any sector that requires proof of citizenship for employment or benefits.
Timeline: The order was signed on January 20, 2025, and intended to apply to children born after February 19, 2025. It is currently blocked by federal courts.
Scope: The order has a nationwide scope, affecting all states and U.S. territories. Its primary impact would be on children born to non-citizen parents within U.S. borders.

The Backstory: How We Got Here

Timeline of Events:

Post-Civil War Reconstruction (1860s):

The concept of birthright citizenship, or jus soli ("right of the soil"), was derived from English common law and was a feature of the American colonies. The debate intensified after the Civil War. The Supreme Court's 1857 Dred Scott v. Sandford decision held that people of African descent could not be U.S. citizens. To overturn this, Congress passed the Civil Rights Act of 1866 and then enshrined birthright citizenship into the Constitution with the 14th Amendment, ratified in 1868. The Citizenship Clause was intended to provide a clear, race-blind federal rule for citizenship.

The Wong Kim Ark Precedent (1898):

The Supreme Court case United States v. Wong Kim Ark solidified the modern interpretation of the Citizenship Clause. Wong Kim Ark was born in San Francisco to Chinese parents who were legal residents but ineligible for citizenship under the Chinese Exclusion Act. The Court ruled 6-2 that because he was born in the U.S. and subject to its laws, he was a citizen under the 14th Amendment. This decision has been the controlling precedent for over a century, establishing that children born on U.S. soil are citizens, regardless of their parents' nationality or immigration status, with narrow exceptions for children of foreign diplomats or invading armies.

Modern Immigration Debates (1990s-Present):

Beginning in the 1990s, some conservatives began to challenge this long-standing interpretation, arguing it acts as a "magnet" for illegal immigration. Republicans in Congress have introduced legislation to limit birthright citizenship in nearly every session since 1991, but these bills have never passed. The debate has become a recurring theme in presidential politics, with calls to end birthright citizenship via legislation or executive action.

Why Now? The Political Calculus:

  • Fulfilling a Campaign Promise: The issuance of Executive Order 14160 on the first day of the new administration fulfills a key and long-standing campaign promise aimed at a conservative base focused on restricting immigration.
  • Executive Action Over Legislation: Frustrated by decades of congressional inaction on the issue, the executive order represents a strategy to bypass the legislative process and force a new constitutional showdown in the courts.
  • Shifting Political Landscape: The order capitalizes on heightened public concern over border security and immigration, using a high-profile executive action to demonstrate a hardline stance.

Your Real-World Impact

The Direct Answer: This directly affects children born in the U.S. to non-citizen parents and could create significant administrative burdens and potential costs for all American families.

What Could Change for You:

Potential Benefits:

  • Proponents argue that ending birthright citizenship could reduce incentives for "birth tourism" and illegal immigration, though evidence for this is debated.
  • Supporters believe it would strengthen the perceived value of U.S. citizenship. [Executive Order 14160, Sec. 1]

Possible Disruptions or Costs:

Short-term (First 1-5 years):

  • If the order is upheld, it could create immediate confusion and legal chaos for families, hospitals, and state agencies responsible for issuing birth certificates.
  • All new parents, regardless of their own citizenship, could face new bureaucratic hurdles and costs to prove their child's eligibility for citizenship, potentially costing families $1,200 to $1,600 per child.
  • Hospitals and social service agencies would face increased administrative burdens.

Long-term:

  • The creation of a large, hereditary "underclass" of people born and raised in the U.S. without legal status. This group would have limited access to education, healthcare, and legal employment, potentially increasing poverty and social instability.
  • The Migration Policy Institute estimated that by 2050, such a policy change could increase the unauthorized population by 4.7 million.
  • It could lead to increased use of the shadow economy and create a population of stateless individuals with no country to claim as their own.

Who's Most Affected:

Primary Groups: Children born in the U.S. to parents who are undocumented immigrants or on temporary visas. Latino and Asian communities would be disproportionately affected.
Secondary Groups: All U.S. citizen parents who would need to navigate new, potentially costly processes to verify their children's citizenship. Healthcare providers and state vital records offices would also be impacted.
Regional Impact: States with large immigrant populations like California, Texas, Florida, and New York would see the most significant demographic and social effects.

Bottom Line: While intended to impact only non-citizens, this executive order could create new costs and burdens for all American families and fundamentally alter the social and economic landscape by creating a permanent, disenfranchised population.

Where the Parties Stand

Republican Position: "End the Magnet for Illegal Immigration"

Core Stance: The Republican party has increasingly moved to support ending the current practice of birthright citizenship, arguing it is a misinterpretation of the 14th Amendment.

Their Arguments:

  • ✓ Proponents argue the policy would discourage illegal immigration by removing a key incentive.
  • ✓ They believe it clarifies and restores the original intent of the 14th Amendment's "subject to the jurisdiction thereof" clause.
  • ⚠️ Some Republicans express concern over the use of executive action to change constitutional interpretation, preferring a legislative approach or a constitutional amendment.
  • ✗ The executive order's legal standing is a point of internal debate, but the policy goal is widely supported within the party.

Legislative Strategy: To support the executive order through legal challenges and introduce clarifying legislation, such as the "Birthright Citizenship Act," to codify this interpretation into law.

Democratic Position: "A Vile Betrayal of Our Constitution"

Core Stance: Democrats overwhelmingly oppose the executive order, viewing it as a cruel, unconstitutional attack on a fundamental American principle.

Their Arguments:

  • ✓ They uphold the long-standing legal precedent of United States v. Wong Kim Ark, affirming that anyone born on U.S. soil is a citizen.
  • ✓ Democrats argue that birthright citizenship is a cornerstone of American equality and has been crucial for integrating generations of immigrants.
  • ✗ They contend the order is an unconstitutional overreach of executive power.
  • ✗ Opponents warn it would create a stateless underclass, harm children, and tear families apart.

Legislative Strategy: To fight the executive order in court, file amicus briefs, and publicly condemn the action while protecting the current interpretation of the 14th Amendment.

Constitutional Check

The Verdict: ✗ Unconstitutional

Basis of Authority:

The executive order seeks to reinterpret the Citizenship Clause of the Fourteenth Amendment. [Executive Order 14160, Sec. 1]

The Fourteenth Amendment, Section 1: "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."

Constitutional Implications:

[Legal Principle]: The central legal debate is over the phrase "subject to the jurisdiction thereof." For over a century, courts have held that this phrase applies to nearly everyone physically present in the U.S., excluding foreign diplomats and hostile forces. The executive order advances a narrower interpretation, arguing it means owing complete political allegiance to the U.S., thereby excluding children of parents who are not citizens or permanent residents. [Executive Order 14160, Sec. 1]

[Precedent]: The Supreme Court's 1898 decision in United States v. Wong Kim Ark is the key precedent. The Court explicitly held that a child born in the U.S. to foreign parents who are permanent residents is a U.S. citizen. This ruling has been consistently upheld and is widely considered to have settled the matter, extending citizenship to the U.S.-born children of all immigrants, regardless of their legal status.

[Federalism]: The order attempts to use federal executive power to override what has been a constitutionally guaranteed right applied uniformly across all states. While the federal government has power over immigration and naturalization, the executive branch cannot unilaterally change the Constitution.

Potential Legal Challenges:

The executive order was immediately met with numerous lawsuits from states, immigrant rights organizations, and individuals. The primary arguments in these lawsuits are:

  • The order is a direct violation of the 14th Amendment as interpreted by the Supreme Court in Wong Kim Ark.
  • The President does not have the authority to alter the Constitution via executive order; such a change would require a constitutional amendment.
  • Every federal court that has reviewed the order on its merits has found it likely unconstitutional.

Your Action Options

TO SUPPORT THIS BILL

5-Minute Actions:

  • Call Your Rep/Senators: Capitol Switchboard: (202) 224-3121. "I'm a constituent from [Your City/Town] and I urge [Rep./Sen. Name] to support Executive Order 14160 and legislation to end birthright citizenship."

30-Minute Deep Dive:

  • Write a Detailed Email: Contact members of the House and Senate Judiciary Committees to express your support for the reinterpretation of the 14th Amendment.
  • Join an Organization: Groups that advocate for restricting birthright citizenship include NumbersUSA.

TO OPPOSE THIS BILL

5-Minute Actions:

  • Call Your Rep/Senators: Capitol Switchboard: (202) 224-3121. "I'm a constituent from [Your City/Town] and I urge [Rep./Sen. Name] to oppose Executive Order 14160 and protect birthright citizenship as guaranteed by the 14th Amendment."

30-Minute Deep Dive:

  • Write a Letter to the Editor: Submit a letter to your local newspaper arguing against the executive order, highlighting its constitutional and social implications.
  • Join an Organization: Advocacy groups fighting the order include the American Civil Liberties Union (ACLU), American Immigration Lawyers Association, League of United Latin American Citizens (LULAC), and Common Cause.