Executive Order on Birthright Citizenship for International IPs

Overview of Birthright Citizenship

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Academy of Adoption & Assisted  
Reproduction Attorneys
July 30, 2025
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Susan Garner Eisenman Attorney at Law
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4900 Reed Rd, Suite 204, Columbus, OH, 43220
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Birthright citizenship, based on birth in America, was the law of England at the time the  United States was founded. It has been the substantive law in America since 1868. The principle was confirmed by the Fourteenth Amendment, introduced by the post-Civil War Republican Congress. The Fourteenth Amendment has been confirmed both by national legislation enacted by Congress and by several U.S. Supreme Court decisions. 8 U.S.C. 1401 (1952); United States v. Wong Kim Ark, 169 U.S. 649 (1898) and Plyler v. Doe, 457 U.S. 202 (1982)

“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers … or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes… To hold that the Fourteen  Amendment of the Constitution excludes from citizenship the children, born in the United States,  of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of  English, Scotch, Irish, German or other European parentage, who have always been considered  and treated as citizens of the United States.” United States v. Wong Kim Ark.

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This was affirmed in 1981 by Plyler v. Doe. Likewise, federal legislation extended citizenship to the children of Native American tribes in 1924.
In recent years, the issue of birthright citizenship has become a political issue. It was raised in two presidential campaigns to question a candidate’s qualifications to run for president.  In January 2025, by executive order of the current president, there was an attempt to set aside the Fourteenth Amendment. The executive order is available online. The justification for this position is set out in HR 4864 – 118th Congress, entitled “End Birthright Citizenship Fraud Act of 2024”. This bill was not enacted. The justification for the bill includes:

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1. The claim that legislative histories indicate that two of the proponents of the 14th Amendment construed that the language of the Amendment to state that families of  ambassadors or foreign ministers and persons subject to the jurisdiction of thereof were extended to exclude the children of “aliens”;  
2. That birthright citizenship was an incentive for illegal immigration;
3. That it encouraged chain immigration and “anchor baby” births;
4. That it allowed children of immigrants to take advantage of publicly funded education,  welfare, and medical programs; and
5. That it encourages immigration fraud.
In contrast, opponents argue:
1. That evidence does not support the proponents’ fears or statements of intent.  2. Ending birthright citizenship would not end illegal immigration.
3. That the change would be enormously expensive and burdensome.
4. The change would result in hair-splitting litigation.
5. The citizenship of millions of Americans could be in doubt.
6. It would increase the number of illegal aliens.
7. It would result in “baby” deportations.
8. That it would create a permanent underclass of unassimilated persons.

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Subsequent to the executive order, a number of federal courts granted preliminary injunctions, blocking the implementation of the executive order. Approximately half the state governments brought suit over the executive orders.

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A recent case, Trump v. CASA, before the U.S. Supreme Court, concerned birthright citizenship. The court decided the case solely on the issue of the nationwide preliminary injunctions and left the constitutional issue unresolved. The oral argument on the case is available online.  

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This is a crucial issue because if the Constitution can be altered by executive order, the disability of the president provision and the two-term limit on presidents provision could also be eliminated by executive order.  

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The consensus seems to be that to change the 14th Amendment, a constitutional amendment would be necessary. This process required action by two-thirds of the Senate and the House and ratification by three-fourths of the states.

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Subsequent to the Supreme Court decision, three federal courts have reinstated the injunction utilizing specific language of the prior Supreme Court decision.

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Citizenship of Children of Citizens Born Abroad

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In addition to birthplace-based citizenship (Jus soli), citizenship can also be obtained based  upon the citizenship of the child’s parents (Jus Sanguinis)

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“A child born in a foreign country can obtain U.S. citizenship at birth if they meet several requirements. A child can obtain U.S. citizenship if they are born:  

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• In wedlock to two parents who are U.S. citizens
• In wedlock to a parent who is a U.S. citizen and a parent who is a U.S. national • In wedlock to a parent who is a U.S. citizen and a parent who is a citizen of a foreign  country
• Out of wedlock to two parents who are U.S. citizens
• Out of wedlock to a father who is a U.S. citizen
• Out of wedlock to a mother who is a U.S. citizen
A child is born “in wedlock” or “of wedlock” when:  
• The parents are legally married to each other at the time of the child’s birth, or • The child is born within 300 days of the end of the marriage by death or divorce”*

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Other countries apply Jus Sanguinis citizenship rules differently. In Israel, the genetic link must be through the mother. In Saudi Arabia, the link must be through the father. If the parents are not married, a paternity action may be necessary. Some families will have difficulty bringing and/or financing such actions.  

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*U.S. State Department Website

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Online Resources:
1. Protecting the Meaning and Value of American Citizenship – Whitehouse – 1/20/25 2. End Birthright Citizenship Fraud Act of 2023 – H.B. 4864 – Rep. Gaetz, Matt – 12/18/24 3. 10 Reasons Amending the Constitution to End Birthright Citizenship is a Terrible Idea – Gred Siskind, AILA Board of Governors - 8/9/10
4. NPR – Supreme Court Justices Appear Divided in Birthright Citizenship Arguments – 5/15/2025
5. U.S. State Department Obtaining U.S. Citizenship for a Child Born Abroad – U.S. State  Department
6. Assisted Reproductive Technology (ART) and Surrogacy Abroad, October 31, 2024 7. American Immigration Council Org. Fact Sheet – Eliminating Birthright Citizenship  Would not Solve the Problem of Unauthorized Immigration – November 4, 2011 8. CATO Initiative – Birthright Citizenship isn’t Just the Law, it’s Crucial to Assimilation in  the U.S. – November 1, 2018
9. National Archives – Constitutional Amendment Process

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