A politically powerful opponent of birthright citizenship railed that the United States cannot “give up the right” to “expel” dangerous “trespassers” who “invade [our] borders,” “wander in gangs,” and “infest society.”
Was this Donald Trump speaking in 2024? No, the quote is from an 1866 speech on the Senate floor by Senator Edgar Cowan of Pennsylvania, a leading opponent of adding a provision to the U.S. Constitution granting citizenship based solely on birth on U.S. soil. Who were the “invaders” that Senator Cowan so feared? “I mean the Gypsies,” Cowan explained, despite offering no evidence that Roma migration posed a risk to the United States.
Senator Cowan lost the fight. In 1868, the nation ratified the Fourteenth Amendment, the first sentence of which guarantees birthright citizenship. The amendment invalidated the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, which declared that no Black person could ever be a U.S. citizen. Equally important, the Constitution now guaranteed citizenship to the children of immigrants born on U.S. soil, “no matter from what quarter of the globe he or his ancestors may have come,” as one senator later put it in a speech to his constituents.
More than 150 years later, Trump has vowed to end birthright citizenship on “day one” of his new administration for children without at least one parent who is a citizen or green-card holder. He made that announcement in a three-minute video prominently posted on his campaign website, which he repeated in an interview with NBC’s Meet the Press last month.
In 2025, the end of birthright citizenship is more than just an applause line at the Conservative Political Action Conference. It has a genuine, if slim, chance of making its way into law. If it does, it will upend the lives of millions, and create a caste system in which a new set of people—native-born non-Americans—can never work or live in the open.
This prospect ought to be taken seriously. How would President Trump implement such a plan? Is it constitutional? And would the U.S. Supreme Court back him up?
The first question is easy, because Trump has told us exactly how he intends to proceed. In the video, the president-elect commits to issuing an executive order on January 20, 2025, that would deny citizenship not only to the children of undocumented immigrants but also to those born to parents who both are legally in the United States on a temporary visa for study or work. (Trump’s order as proposed would apply only to children born after it is issued.)
The consequences would be immediate. Trump says he will order government officials to deny these children passports and Social Security numbers. They will be prohibited from enrolling in federal programs such as Medicaid, the Children’s Health Insurance Program, and the Supplemental Nutrition Assistance Program, and likely state benefits as well.
As adults, if all goes according to Trump’s plan, they will be barred from voting, holding elected office, and serving on juries. States could deny them a driver’s license and block them from attending state universities. They would be prohibited from working in the United States, and any U.S. citizen who employs them could be fined or even jailed under federal immigration laws. Many would be rendered stateless. Perhaps worst of all, they would live in perpetual fear of being deported from the only country in which they have ever lived.
Ending birthright citizenship for these children would affect everyone in America. Everyone would now have to provide proof of their parents’ citizenship or immigration status on the date of their birth to qualify for the rights and benefits of citizenship. The new law would necessitate an expanded government bureaucracy to scrutinize hospital records, birth certificates, naturalization oaths, and green-card applications.
Lawsuits are sure to follow, which leads to the second question: Will Trump have the constitutional authority to end birthright citizenship for the children of undocumented immigrants?
Per the text of the Constitution, the answer is a hard no. Some constitutional provisions are fuzzy, but the citizenship clause is not one of them. 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.”
Even the deeply racist Supreme Court back in 1898 couldn’t find any wiggle room in that language. Just two years before, in 1896, the Court had somehow read the Constitution’s equal-protection clause to permit “separate but equal” in Plessy v. Ferguson, ushering in the Jim Crow era. But when the U.S. government argued in United States v. Wong Kim Ark that the children of Chinese immigrants were not birthright citizens, the justices balked. The language granting citizenship to “all persons born” in the United States was “universal,” the Court explained, restricted “only by place and jurisdiction.” More recently, the Supreme Court reaffirmed that point, stating as an aside in a 1982 opinion addressing the rights of undocumented children to attend school: “No plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
Despite the clear text and long-standing judicial precedent, Trump claims that undocumented immigrants and their children are not “subject to the jurisdiction” of the United States, and so fall within the exception to universal birthright citizenship.
That is nonsense. Undocumented immigrants must follow all federal and state laws. When they violate criminal laws, they are jailed. If they park illegally, they are ticketed. They are required to pay their taxes and renew their driver’s license, just like everyone else. Trump certainly agrees that undocumented parents of native-born children can be deported for violating immigration laws at any time. So in what way are these immigrants and their children not subject to U.S. jurisdiction?
The citizenship clause’s exception for those not “subject to the jurisdiction” of the United States applies only to children born to members of American Indian tribes and the children of diplomats, as Congress explained when drafting that language in 1866. In contrast with undocumented immigrants, both groups owe allegiance to a separate sovereign, and both are immune from certain state and federal laws. (Native Americans were granted birthright citizenship by federal statute in 1924.)
As nonsensical as they are in an American context, Trump’s ideas didn’t come out of nowhere. In 1985, the law professor Peter Schuck and the political scientist Rogers Smith wrote an influential book, Citizenship Without Consent, arguing that the Fourteenth Amendment’s citizenship clause did not apply to the children of undocumented immigrants. These scholars asserted that “immigration to the United States was entirely unregulated” before the 1870s, and so there was no such thing as an “illegal immigrant” and likewise no intent to grant birthright citizenship to their children. Many scholars and commentators, including some members of Congress, have repeated that same claim. In 2015, the law professor Lino Graglia testified before the House Judiciary Committee that “there were no illegal aliens in 1868 because there were no restrictions on immigration.” Then-Representative Raúl Labrador repeated the same point at that hearing, asserting as fact that there was “no illegal immigration when the Fourteenth Amendment came into being.” In an op-ed in June 2023, a former Department of Homeland Security policy adviser declared, “There were no immigrant parents living unlawfully in the United States” in the 19th century.
These critics have their facts wrong. In a recent law-review article, the legal scholars Gabriel Chin and Paul Finkelman explained that for decades, Africans were illegally brought to the United States as slaves even after Congress outlawed the international slave trade in 1808, making them the “illegal aliens” of their day. The nation was well aware of that problem. Government efforts to shut down the slave trade and deport illegally imported enslaved people were widely reported throughout the years leading up to the Civil War. Yet no one credible, then or now, would argue that the children of those slaves were to be excluded from the citizenship clause—a constitutional provision intended to overrule Dred Scott v. Sandford by giving U.S. citizenship to the 4.5 million Black people then living in the United States.
Even so, these ideas have gained traction in the right-wing legal community—a group that will be empowered in Trump’s next term. The Fifth Circuit judge James C. Ho, who is regularly floated as a potential nominee to the Supreme Court, recently said in an interview that children of “invading aliens” are not citizens, because “birthright citizenship obviously doesn’t apply in case of war or invasion”—a reversal of his previous position on this issue. (This is the judicial equivalent of shouting, “Pick me! Pick me!”) Never mind that undocumented immigrants—a majority of whom entered the United States legally and then overstayed their visa—don’t qualify as invaders under any definition of the word. And never mind that there is no support for that idea in either the Constitution’s text or its history. In 1866, Senator Cowan opposed granting citizenship to the children of the “flood” of Chinese immigrants into California, as well as to Gypsy “invaders” of his own state. His colleagues pointed out that the only invasion of Pennsylvania was by Confederate soldiers a few years before. Birthright citizenship, they explained, would ensure that the United States would never revert back to the slave society that the Confederates invaded Pennsylvania to preserve.
In truth, all of these baseless arguments are window dressing for the real goal. The Fourteenth Amendment’s overarching purpose was to end a caste system in which some people had more rights under the law than others. To be sure, that ideal has always been a work in progress. But many opponents of birthright citizenship don’t even hold out that ideal as a goal; they would rather bring caste back, and enshrine it in our laws.
If birthright citizenship were to end tomorrow for children without at least one parent who was a citizen or lawful permanent resident, it would bar from citizenship hundreds of thousands of people each year. These people wouldn’t be eligible to participate in our democracy, and they would be forced to live and work in the shadows, as would their children and their children’s children. The end of birthright citizenship would create a caste of millions of un-Americans, locked in perpetuity into an inferior, exploitable status. Ironically, if Trump were to succeed in ending birthright citizenship, he would preside over the most dramatic increase of undocumented immigrants in U.S. history.
That brings us to the third question: Would five members of the Supreme Court uphold Trump’s proposed executive order?
No sitting justice has addressed this question directly. At his confirmation hearing in 2006, Justice Samuel Alito was asked whether he thought the children of undocumented immigrants qualified for birthright citizenship under the Fourteenth Amendment. He refused to answer on the grounds that a future case might come before him, but he also observed: “It may turn out to be a very simple question. It may turn out to be a complicated question. Without studying the question, I don’t know.” Justice Amy Coney Barrett declined to respond to the same question for the same reason. (These two justices also dodged questions about whether they would overturn Roe v. Wade on those grounds.)
The Georgetown law professor Steve Vladeck, an expert on the Supreme Court, believes that, at most, “two” or “maybe … even three justices” on the current Court would vote to end birthright citizenship. But all it takes is five, and the Court’s composition may well change. Trump appointed three justices during his first term in office, and he could appoint a few more before the end of his second. It is they who will have the last word.
