Trump Administration Tries to Strip U.S. Citizenship from Children and Is Sued

In one of its very first actions, the Trump administration issued an executive order to deny U.S. citizenship to children to be born in the U.S. to many noncitizen parents.

This attack, while expected, is unprecedented, and widely held by lawyers and legal scholars to be unlawful. Legal challenges have begun.

Key Points

• This action targets all children to be born February 20, 2025 or later, to parents who are not both green card holders or U.S. citizens at the time of the birth. 
  • This includes children of parents on visas like H-1B and TN
• This action does not affect any children born before February 20, 2025.
• This action is not effective immediately, and may not go into effect at all, due to already filed litigation.

Legal Background

The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, reads in relevant part:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.

This clause is known as the “birthright citizenship” clause. In 1898, the Supreme Court case confirmed that children born in the U.S. to noncitizen parents are included in this clause. In 1940, Congress enacted this clause into legislation. Generations of judges, lawyers, and legislators have agreed that virtually all children born in the U.S. are “subject to the jurisdiction” of the U.S. and consequently are U.S. citizens. (The only exception remaining today are children born to diplomats or diplomatic staff.)

However, despite the plain text of the birthright citizenship clause and the clear history of its interpretation, Trump’s January 20, 2025 Executive Order reads:

Sec. 2.  Policy.  (a)  It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States 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.

(b)  Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.

In other words, this Executive Order targets all children soon to be born to parents who are not both green card holders or U.S. citizens at the time of the birth.

In an unprecedented move, Trump is challenging established interpretation of the Constitution, case law, and statute to remove a longstanding legal right protecting millions of people. 

This Executive Order does not take effect immediately without agency action. Further, the Executive Order is already facing a legal challenge though at least one federal lawsuit alleging that the administration has acted unlawfully and that several plaintiffs’ soon-to-be-born children will be harmed without U.S. citizenship. Other lawsuits are expected to follow.

How to Respond

It is still unclear whether this Executive Order will go into effect at all and if so, whether it will succeed despite legal challenges.

For children born in the U.S., we advise that parents should continue to apply for the children’s legal identity documents (such as birth certificates, Social Security cards, and U.S. passports) as usual. If any local, state, or federal agency refuses to issue these documents on the basis of the parents’ immigration status or citizenship, speak to your designated Meltzer Hellrung attorney.