Can the President Limit Birthright Citizenship Through Executive Action, or Is Constitutional Change Required?

By Mariel Barnes '29

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Introduction

With the approval of the Fourteenth Amendment in 1868, birthright citizenship became known as an essential part of American constitutional law. The Citizenship Clause states, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof,” are citizens of the United States and the state where they reside. (1) Birthright citizenship is defined through this and has become a constitutionally guaranteed right rather than a changeable immigration law under presidential authority.

On January 20, 2025, President Donald Trump announced Executive Order 14160, causing a new widespread debate on the purpose of the Citizenship Clause. The order intended to deny citizenship to certain American-born children with parents who were either temporarily or illegally in the nation. (2) This eventually led to a conflict between the Fourteenth Amendment's citizenship guarantees and the President's authority to carry out federal law. Historically, almost any individual born in the United States is guaranteed citizenship by the Fourteenth Amendment. The President does not have the ability to carry out an executive order to deny birthright citizenship since the Supreme Court has always guaranteed this rule. A future Supreme Court decision overturning precedent or a constitutional amendment would be the necessary course to change the system in place.

Supreme Court View on Birthright Citizenship

United States v. Wong Kim Ark (1898) is known to be one of the most important birthright citizenship cases. Wong Kim Ark was born in San Francisco to Chinese parents who lived and worked in the United States but were not considered citizens. When Wong was around 21 years old, he returned from a trip to China to the US, but was denied entry by federal officials, stating he was not a citizen of the United States. (3) In response to the Federal government’s claim that Wong was not a US citizen, the Supreme Court decided against this and stated that Wong was a citizen under the Fourteenth Amendment. The Court emphasized that citizenship usually comes from being born on U.S. soil and Wong's parents were foreign nationals, but it still did not exclude Wong from citizenship, since children born to foreign diplomats or enemy forces on American territory were considered the few exceptions accepted by the Court. (4)

In the more recent 2026 case of Trump v. Barbara, the Supreme Court re-examined birthright citizenship. The case addressed whether the Citizenship Clause was violated by Executive Order 14160. The government held the belief that children born to undocumented immigrants or parents who only stayed temporarily in the country were not fully "subject to the jurisdiction" of the country. (5)

The Supreme Court did not agree, deciding that children born in the US to parents who had been either temporarily or illegally present were citizens at birth and fell under US jurisdiction. (6) People who are in the United States must follow its laws and are subject to consequences if they do not; therefore, the United States has legal power over them and their children.

The precedent set by Wong Kim Ark’s case was factored into the Court’s final decision. Trump v. Barbara and Wong Kim Ark reinforced existing law protecting birthright citizenship. These decisions strengthen the main argument that the President is not permitted to issue an executive order that is different from a constitutional judgment. The executive branch is controlled by Supreme Court rulings of the Constitution, even if a sitting president disagrees with them.

Why Executive Order 14160 Failed

Executive Order 14160 is now seen as a failed attempt to limit birthright citizenship after Trump v. Barbara was ruled out in 2026. The guidelines cover two groups of United States-born children. The first group consists of children whose fathers were neither citizens nor legal permanent residents and who also had mothers who lived illegally in the US. The second group includes children who had fathers who were not citizens or legal permanent residents, but had mothers who were legally but temporarily present. These situations may be seen in cases of students, tourists, or work visas. (7)

The current administration argued that citizenship was not just by being born in the United States. It stated that complete political authority and allegiance were essential to "be subject to the jurisdiction thereof." (8) With this, a child’s citizenship would not have full dependence on the immigration or citizenship status of the parents.

The main constitutional issue in this argument is that the Fourteenth Amendment prioritizes how the child was born in the United States and is subject to its jurisdiction. It does not make citizenship dependent on the child's parents' immigration status. The Supreme Court concluded that children included by the order matched the conditions of the Citizenship Clause if they were subject to US law. (9)

Additionally, the order was in violation of federal law. A person born in the United States and under its laws is a citizen at birth, as defined in 8 U.S.C. § 1401(a). (10) A federal statute can not be changed by an executive order, nor can the Constitution's rules be changed. It is the President's job to enforce the law, not to change requirements for constitutional citizenship. Executive Order 14160 failed to overturn the Supreme Court's precedent and the Fourteenth Amendment for these reasons.

Would Congressional Action Be Enough?

Congress holds a large amount of power when it comes to immigration and naturalization, including the ability to establish a basic naturalization rule under Article I of the Constitution. (11) The method to become a citizen if not born as one at birth is known as naturalization. Birthright citizenship comes straight from the Fourteenth Amendment, which is different. 

Furthermore, Congress is not able to pass a law that is in contradiction to the Constitution, but it does have the ability to pass laws that deal with immigration and the citizenship process. Wong Kim Ark and Trump v. Barbara would be contradicted by a government act that did not permit citizenship to children under the Fourteenth Amendment. This present-day constitutional rule would not be changed by congressional laws with the same limits as given by Executive Order 14160.

A constitutional revision would be the clearest legal way to change the Citizenship Clause. Two-thirds of both houses of Congress or a constitutional convention held by two-thirds of the states would be necessary to call for an amendment under Article V. Three-fourths of the states have to then approve it. (12) The important and lasting character of constitutional rights can be seen in this difficult process.

The meaning given to Wong Kim Ark and Trump v. Barbara may also be reversed or changed by a future Supreme Court ruling. The President and Congress, however, are unable to reject those choices on their own. Birthright citizenship is guaranteed unless the Supreme Court officially changes the Constitution or existing law in the Constitution. 

Conclusion

The Fourteenth Amendment is a constitutional right that protects birthright citizenship law. The Supreme Court ruled in Wong Kim Ark that citizenship almost always comes from being born in the United States instead of being dependent on parents' citizenship. The Court ruled in Trump v. Barbara that children born to parents who are either temporarily or illegally in the nation are protected by this guarantee. The power to amend the Fourteenth Amendment by executive order is not a part of the President's powers. Even though Congress has considerable power over naturalization and immigration, regular law cannot substitute for the place of citizenship as established by the Constitution. Limiting birthright citizenship under current law would call for either a future Supreme Court ruling rejecting established law or a constitutional amendment.

Endnotes

1. U.S. Const. amend. XIV, § 1, https://constitution.congress.gov/constitution/amendment-14/.

2. Exec. Order No. 14160, “Protecting the Meaning and Value of American Citizenship,” 90 Fed. Reg. 8449, 8449–50 (January 29, 2025), https://www.federalregister.gov/documents/2025/01/29/2025-02007/protecting-the-meaning-and-value-of-american-citizenship.

3. United States v. Wong Kim Ark, 169 U.S. 649, 652–53 (1898), https://www.law.cornell.edu/supremecourt/text/169/649.

4. Ibid., 682–88, 693

5. Exec. Order No. 14160, §§ 1–2(a), 90 Fed. Reg. at 8449–50.

6. Trump v. Barbara, 609 U.S. ___, slip op. at 10–16 (2026), https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf.

7. Exec. Order No. 14160, § 2(a), 90 Fed. Reg. at 8449–50.

8. Ibid., § 1.

9. Trump v. Barbara, 609 U.S. ___, slip op. at 12–16 (2026).

10. 8 U.S.C. § 1401(a), https://www.law.cornell.edu/uscode/text/8/1401.

11. U.S. Const. art. I, § 8, cl. 4, https://constitution.congress.gov/constitution/article-1/.

12. U.S. Const. art. V, https://www.law.cornell.edu/constitution/articlev.