Getting Rid of Birthright Citizenship Will Require Serious Legislative Action

Executive orders alone aren’t going to cut it.

At the start of his second term, President Donald Trump signed several executive orders pertaining to immigration restriction. Chief among the immigration reforms was an executive order to repeal birthright citizenship to illegal aliens, Protecting the Meaning and Value of American Citizenship — Executive Order 14156.

Trump’s executive order implements a policy that prevents birthright citizenship from being granted to immigrants illegally or temporarily residing in the United States, and thereby “not subject to the jurisdiction” of the United States, as outlined by the 14th Amendment of the United States Constitution. In sum, children born to illegal aliens, tourists and individuals visiting the country for short-term business purposes, guest workers, and most other individuals on temporary visas would not receive birthright citizenship.

Executive Order 14156 would bar federal agencies from producing documents that recognize American citizenship, or accept documents state or local governments issue that extend US citizenship, to individuals who meet the following conditions:

(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a U.S. citizen or lawful permanent resident at the time of said person’s birth, or

(2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

The Executive Order goes into effect on February 19, 2025, and requires all executive departments and agencies (including the DHS, State, and the Social Security Agency) to issue guidance to implement the President’s policy during that time.

While campaigning, Trump promised to repeal birthright citizenship during his second term. “On day one of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law going forward the future children of illegal aliens will not receive automatic U.S. citizenship,” Trump proclaimed in 2023.

Birthright citizenship is among the most contentious topics in immigration debates. For its part, the United States Supreme Court has never issued a ruling that the children of illegal aliens or noncitizens must receive birthright citizenship. Conservative legal scholars have taken exception to birthright citizenship. They contend the Citizenship Clause of the 14th Amendment does not reward obligatory birthright citizenship to the children of illegal aliens due to how these children are not subject to American laws as spelled out during the time of the ratification of this amendment.

The U.S., along with Canada, is one of the few developed countries that has birthright citizenship for any individual, irrespective of their immigration status, born within its jurisdiction. Only countries in Latin America and the Caribbean along with Chad, Lesotho, and Tanzania have unrestricted birthright citizenship.

CIS research found that roughly 300,000 “anchor babies” were delivered to parents who entered the country illegally. On top of that, approximately 72,000 anchor babies were delivered to foreign students, foreign tourists, and foreign visa workers. Anchor baby refers to the United States-born children of illegal aliens and other foreigners with no connection to the nation.

Anchor babies receive American citizenship through their birthright despite their parents having no legal connections to the United States. Once the anchor baby becomes an adult, they have the power to sponsor their parents and foreign relatives for green cards. In effect, the child’s family is anchored to the United States for multiple generations.

Immigration restriction organizations such as NumbersUSA made similar findings. Roughly 350,000 individuals are born annually to at least one parent who resides in the United States illegally but also one parent who possesses permanent residency or U.S. citizenship, per NumbersUSA’s figures.

Babin’s bill is a good first step in rolling back birthright citizenship and should receive support from other supposed pro-immigration restriction Republicans. If this bill is not passed, it should be emulated in future congressional sessions. The legislative route is the most politically viable way for birthright citizenship to be repealed for good.

The repeal of birthright citizenship by Trump’s executive order has inevitably sparked legal challenges and is already being held up in the courts. The American Civil Liberties Union (ACLU) and its state chapters, along with attorneys general from multiple states, filed lawsuits immediately after the executive order was signed.

Initially, 18 states and the District of Columbia filed a lawsuit in the U.S. District Court for the District of Massachusetts. The number of states involved in legal challenges to Trump’s executive order has since grown to 22.

Some of the states involved in these lawsuits include:

• Arizona

• California

• Colorado

• Connecticut

• Delaware

• Hawaii

• Illinois

• Maine

• Massachusetts

• Maryland

• Michigan

• Minnesota

• Nevada

• New Jersey

• New Mexico

• New York

• North Carolina

• Oregon

• Rhode Island

• Vermont

• Washington

• Wisconsin

U.S. district judges such as Deborah Boardman in Maryland, John Coughenour in Washington, Joseph Laplante in New Hampshire, and Leo Sorokin in Massachusetts have issued a nationwide preliminary injunction against Trump’s executive order. This is to be expected in a kritarchy, a political system where judges are the de facto rulers of the system.

Some elected officials have picked up on the need to pursue a more diversified strategy in terms of repealing birthright citizenship. On Jan. 20, 2025, Rep. Brian Babin (R-TX) announced his introduction of a bill to repeal birthright citizenship for the children of illegal aliens. Under Babin’s bill, only the children of U.S. citizens, legal permanent residents or individuals who possess temporary nonimmigrant legal status actively serving in the U.S. military can obtain birthright citizenship.

While Republicans have solid control of the United States Senate (53-47) , their margins are razor thin in the House (218-215), thereby making any notable factional defection a death sentence for passing controversial bills. Such realities necessitate immigration restrictionists to start thinking five steps ahead of their opposition. Instead of solely focusing on winning presidential elections, a robust strategy of securing pro-immigration restriction majorities in both the House and the Senate while getting Democrats in swing districts and states to flip on immigration is the most viable course of action for making policies like the abolition of birthright citizenship a political reality.

It can’t be overstated that Donald Trump was elected by voters frustrated with the mass migration status quo. According to a Pew Research poll published last year, 74% of Trump supporters indicated the U.S. immigration system needs major changes or needs to be completely overhauled. By the same token, Pew Research polling discovered that 87% of Trump supporters signaled they are very or extremely worried about the number of immigrants entering the country illegally. An NPR/Ipsos poll published earlier this month showed that 88% of Trump supporters support mass deportations of immigrants living in the country illegally.

The question of clamping down on mass migration is one of political will, not state capacity. Not far from the United States’ backyard, the Dominican Republic — a developing country — has taken on the birthright citizenship issue and mass deportations without any hiccups.

Alas, U.S. politics has taught us that the democratic will of the people has been routinely ignored by the political class. The Republican Party has been no exception to this trend, which is still dominated by business interests — big and small — that are addicted to cheap labor.

Relying exclusively on executive orders to implement policies like a birthright citizenship repeal is suboptimal owing to the harsh reality of how subsequent administrations, especially Democratic ones, will likely undermine or outright rescind such measures. When push comes to shove, it will take a multi-prong approach to ensure such pernicious policies are taken off the books. Babin’s bill is a solid first step, but much more work has to be done.

Sticking to the usual script is not going to cut it. In fact, it will only guarantee additional disappointments further down the line.

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