By FAIR
In 1868, following the Civil War, the 14th Amendment of the United States Constitution was adopted to ensure that emancipated slaves were recognized as American citizens. Section 1 of the amendment states that “[a]ll 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.”[1]
The Meaning of Jurisdiction and Legislative Intent
Debates over the extent and proper understanding of birthright citizenship – and, particularly although not exclusively, whether it applies to the U.S.-born children of illegal aliens – hinge upon the meaning of “subject to the jurisdiction” of the United States.
At the time, being “subject to the jurisdiction of the United States” meant being “not subject to any foreign power,” i.e., not owing allegiance to another nation.[2] The latter formulation was employed in the Civil Rights Act of 1866, which the 14th Amendment was designed to affirm and fortify due to fears at the time that the Civil Rights Act might not survive.
Michigan Senator Jacob M. Howard, who introduced the citizenship clause in 1866, emphasized, in the context of the amendment, that his understanding of birthright citizenship “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States (…).”[3]
Much of the debate about birthright citizenship and its extent turns on the issue of partial versus complete jurisdiction. As one legal analyst points out, “the legislative history makes clear that the drafters of the Citizenship Clause understood there to be two distinct ways in which a person could be subject to the jurisdiction of the United States and that only one of them—complete jurisdiction on par with that experienced by current citizens—was sufficient for purposes of birthright citizenship. In other words, an individual may be subject to some level of United States jurisdiction without his or her U.S.-born child being entitled to birthright citizenship.”[4] Oregon Senator George Henry Williams emphasized at the time: “[i]n one sense, all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. (…) I understand the words here, ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.”[5]
The Wong Kim Ark Case (1898)
The U.S. Supreme Court ruled on a specific point of birthright citizenship in 1898 in the case of Wong Kim Ark. Born in in the U.S. in 1873 to parents who were Chinese subjects, the court ruled that Wong Kim Ark was entitled to U.S. citizenship because his parents were not Chinese diplomats and had “a permanent domicile and residence in the United States.”[6] Wong Kim Ark’s parents can thus best be understood as in category akin to modern-day lawful permanent residents (green card holders). The court did not, however, rule that the U.S.-born children of those in the country illegally are entitled to automatic birthright U.S. citizenship, nor did the Supreme Court rule on the matter subsequently.[7]
Later Developments
Over time, with each iteration of the Immigration and Nationality Act, Congress has steadily increased restrictions on immigration. As a result, rewarding the children of illegal aliens with citizenship is in conflict with legislation that made it both a civil and a criminal offense to enter the United States without authorization.[8] Nevertheless, during the past several decades, automatic birthright citizenship was granted to the U.S.-born children of illegal aliens, both due to institutional inertia and support from the pro-mass-immigration lobby.
It has been estimated that, in 2023, approximately 225,000 to 250,000 children were born on U.S. soil to illegal alien mothers.[9] As of the end of 2021, FAIR estimates that there were over 5.3 million U.S.-born children of illegal aliens living in the U.S.[10] Further complicating the issue, supporters of open borders frequently invoke the presence of U.S.-born children in illegal-alien-headed households as an argument against removing foreign nationals in the country illegally.
The Abuse of Birthright Citizenship
Granting automatic birthright citizenship to the U.S.-born children of illegal aliens incentivizes and rewards mass illegal migration. Automatic birthright citizenship also allows access to an entire array of taxpayer-funded benefits, for which the U.S.-born children of illegal aliens qualify as American citizens, with their illegal alien parents allowed to administer the benefits on behalf of their children.[11]
FAIR’s study of the fiscal burden of illegal immigration – which estimated that, as of early 2023, illegal aliens and their U.S.-born children cost taxpayers almost $151 billion annually – shows that a significant amount of this burden is directly attributable to granting birthright citizenship to the children of illegally-present foreign nationals.[12]
This issue manifests in several ways. Foreign nationals regularly present themselves at the U.S.-Mexico border to give birth in hospitals on the American side at U.S. taxpayer expense.[13] That practice has a well-documented history stemming back to at least the 1980s and 1990s.[14] On top of that, an entire industry now exists to facilitate the abuse of birthright citizenship by means of “birth tourism,” with companies offering so-called “birthing packages.” These packages cover the cost of everything from air travel to lodging, meals, transportation, and medical fees, and run into the tens of thousands of dollars.[15] Citizens of China and Russia are prominently represented among customers for these “birthing packages.”[16]
Recent Executive and Legislative Actions
On his first day back in office (January 20, 2025), President Trump issued an executive order whereby birthright U.S. citizenship shall no longer be granted:
“(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.”[17] The legal reasoning undergirding the executive order was that illegal aliens and temporary visitors are not subject to the jurisdiction of the U.S.[18]
Twenty-two Democratic state attorneys general quickly filed suits against the executive order, and federal district judges blocked its implementation on January 23 and February 5, 10, and 13 of 2025. On March 13, Acting Solicitor General Sarah Harris filed three concurrent, almost identical, applications for emergency stay with the U.S. Supreme Court.[19] Those applications give the Supreme Court an opportunity to weigh in on and clarify the extent of birthright citizenship.[20]
