Is Birthright Citizenship Fragile?
- James Davis
- Jul 19, 2025
- 3 min read
Birthright citizenship in the United States, primarily enshrined in the Fourteenth Amendment of the Constitution, is quite robust and has been consistently upheld by Supreme Court precedent (most notably in United States v. Wong Kim Ark in 1898). It 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."
The interpretation that this applies to nearly all individuals born on U.S. soil, regardless of their parents' immigration status (with very limited exceptions like children of foreign diplomats), has been the prevailing legal understanding for over a century.
What Congress and the President Can Do to Change It:
1. Constitutional Amendment (Most Difficult, Most Durable):
This is the most direct and legally sound way to alter birthright citizenship, but also the most challenging.
Process: An amendment must be proposed by either:
A two-thirds majority vote in both the House of Representatives and the Senate, OR
A constitutional convention called for by two-thirds of the state legislatures (34 out of 50 states).
Ratification: Once proposed, the amendment must then be ratified by three-fourths of the states (38 out of 50 states).
Votes Needed: This requires significant bipartisan agreement and political will, making it extremely difficult to achieve. The last amendment was ratified in 1992.
2. Legislation (Highly Unlikely to Succeed Alone):
Congress could pass a federal law attempting to redefine "subject to the jurisdiction thereof" in the Fourteenth Amendment, or to create a statutory exception to birthright citizenship.
Votes Needed: A simple majority vote in both the House and Senate (218 in the House, 51 in the Senate, assuming all members are present and voting).
Presidential Approval: The bill would then need to be signed by the President.
Likely Outcome: Such a law would almost certainly face immediate legal challenges and would very likely be struck down by the Supreme Court as unconstitutional, given existing precedent. Congress generally cannot pass laws that directly contradict the Constitution without an amendment.
3. Executive Order (Highly Unlikely to Succeed, Legally Dubious):
A President could issue an executive order attempting to limit birthright citizenship.
Legality: Legal scholars widely agree that a President does not have the authority to unilaterally change or nullify a constitutional amendment like the Fourteenth Amendment. Executive orders are meant to direct the executive branch in implementing existing laws, not to rewrite the Constitution.
Legal Challenges: Any such executive order would face immediate and extensive legal challenges, as demonstrated by attempts in recent years. Courts have consistently blocked such orders, ruling them unconstitutional or unlawful. The Supreme Court has recently narrowed the scope of "universal injunctions," meaning that while an executive order might be blocked for specific plaintiffs, it could potentially take effect in other areas if not challenged. However, the underlying legal consensus remains that the President cannot change the Constitution by executive action.
Votes Needed: None directly, but the executive order would depend on the willingness of the executive branch agencies to implement it, and its ultimate fate would be decided in the courts.
In summary, while there are political discussions and proposals to alter birthright citizenship, it is deeply embedded in the Constitution and upheld by significant legal precedent. Changing it would require a profound shift in constitutional interpretation by the Supreme Court or the arduous process of amending the Constitution, which demands broad political consensus that currently does not exist. Any attempt by Congress or the President to change it through less rigorous means would face considerable legal hurdles.
But in our current political environment, anything is possible.
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