Estimated reading time: 8 minutes
Cancelling birthright citizenship
On his first day in office, President Trump issued an executive order (EO) banning birthright citizenship. This directive will impact children born to undocumented parents, and kids born to parents in the US on temporary visas, such as H-1B workers.
Experts predict that 255,000 children each year will be impacted by this new policy, creating an underclass of 2.7 million children by 2045. Many of these children will be rendered stateless.
Trump’s executive order attempts to redefine who can be American and who can participate fully, politically, socially, and economically, in our democracy.
On May 15, the Supreme Court considered the legality of the order and heard arguments from civil rights organizations that filed lawsuits and amicus briefs challenging the executive order.
At a May 16 American Community Media (ACom) briefing co-hosted with Asian Americans Advancing Justice (AAJC), experts examined what’s at stake for our communities and the various attempts to fight back against an order that could affect millions of children. They discussed the historical context of birthright citizenship, emphasizing the order’s threat to citizenship, voting rights, and immigrant integration.
The History of Birthright Citizenship
“We have an unbroken chain of 127 years of the recognition of birthright citizenship,” said Professor Robert Chang, Executive Director, Korematsu Center for Law & Equality at UC Irvine School of Law.
Birthright citizenship is enshrined in the 14th Amendment and has been regarded as a right extended to any child born in the US since 1868. Trump’s executive order attempts to redefine the 14th Amendment and who can participate fully in our democracy.
Professor Chang provided a historical perspective on birthright citizenship, tracing its evolution from the country’s founding to the present. He explained the long history of efforts to limit citizenship based on race and ethnicity, including the Chinese Exclusion Act and the Wong Kim Ark case, and the denaturalization of Bhagat Singh Thind.
“If the US Supreme Court upholds this executive order,” said Chang, then parents of babies born on February 19, 2025, are at risk of the possibility that the US government may denaturalize them. “We know what history has produced for us.”
The Executive Order
“The opponents of a free and open society have always seen… the principle of birthright citizenship as a threat to their racist, exclusionary vision of the US,” said Martin Kim, Director of Immigration Advocacy at Asian Americans Advancing Justice. He clarified that the executive order targets children born to undocumented parents or those on temporary visas, not all immigrants. It’s not meant to strip citizenship away from people who are already citizens. However, are naturalized citizens at risk?
Kim explained that the executive order is based on a fringe legal theory that tries to expand the one limiting clause of the 14th Amendment right, subject to the jurisdiction thereof.
“The actual argument that President Trump is making, and his administration is making, is that the President has the power to unilaterally decide who gets to be a citizen in the US? And that is obviously a very dangerous proposition.”
The 14th Amendment is a cornerstone of American civil rights, guaranteeing citizenship to all persons born or naturalized in the United States and ensuring equal protection under the laws. “They are attacking the sacred foundation of birthright citizenship,” said Kim.
It’s risky to allow citizenship to be taken away based on the whims of a single person said Kim. “The president cannot change the Constitution through an executive order. The president can’t make up a new definition.”
However, Kim was concerned that the lack of clear guidance from the directive would cause potential confusion about how to implement the executive order. The EO, for example, would affect families, but also create additional administrative burdens for states and hospitals that have to issue birth certificates. The government is seeking to overwhelm the community with fear and confusion, said Kim, without really thinking through the consequences or an implementation plan.
Who is impacted?
Julia Gallot of the Migration Policy Institute (MIP) shared findings showing that the executive order could increase the unauthorized immigrant population by 2.7 million over 20 years. Many of these children would be born to U.S.-born parents and would face significant challenges without citizenship, she explained. Children born in the U.S. under the executive order would become potentially stateless, depending on their parents’ home countries’ policies, she said.
Gallot highlighted the multi-generational ripple effects and the administrative burdens the executive order would create. “1.7 million US-born people with U.S.-born parents would be the grandchildren of today’s unauthorized immigrants or temporary visa holders. Therefore, this executive order would have multi-generational ripple effects if it were allowed to go forward by the courts.”
She warned of the long-term consequences of the executive order. MIP estimates that the 255,000 babies born in the U.S. each year without citizenship or legal status will add up to 12.8 million births by 2050. Without birthright citizenship, millions of U.S.-born children would grow up in the United States without access to public benefits, financial aid to pay for college, or the prospect of professional careers and legal work. Not only would the EO damage the United States’ exemplary record of immigrant integration, but it would also exclude U.S.-born workers from legal employment in the United States, which has an aging population, “at a time when immigrants and their kids are driving all of the labor force growth.”
Impact on Democracy
The EO poses “a really significant risk to our democracy that is already dealing with a lot of blows,” said Cesar Ruiz, Associate Counsel at LatinoJustice. He addressed the broader policy issues driving the effort to restrict birthright citizenship, including xenophobia and racism, referring to “an egregious overstep by the administration to target the Latino community” by deporting Venezuelans and Salvadorans, some of whom were wrongfully removed even though they had permanent status.
The EO would fundamentally undermine all the rights that flow from citizenship, the right to vote for many groups, including Latinos, Asians, and African Americans, he added. “We’ve done a lot of fights over redistricting. This would have a direct impact on representation in cities with large immigrant populations … it would have impacts on representation in battleground states that determine the president.”
A potential threat said Ruiz, is this “stripping away power through redistricting and representation, and then this is chipping away at power of immigrants who have been a part of cities where that population is counted toward the census, and so those are some of the more direct ways that we could see impacts on democracy,
Professor Chang highlighted the potential risks of the executive order in undermining voting rights by retroactively undoing the voting rights of people after they become naturalized, even though they thought they were U.S. citizens. States are responsible for registering voters, said Chang, so if a state wants to act on the executive order, they could say that if you can’t prove that you are a U.S. citizen, then you can’t register to vote in that state.
Another consequence could be losing the right to travel freely, added Chang. A person will not be issued a passport if their parents become denaturalized and cannot prove they are U.S. citizens. “If the Department of Justice wanted to denaturalize or possibly even engage in citizenship stripping, history teaches us that they’ve done it before. This current effort is actually connected to those earlier efforts, and that’s why many of us are so fearful about this.”
Chang emphasized the importance of understanding the broader social justice implications and the need for vigorous advocacy to protect birthright citizenship. “The stakes in this are so great, and that’s why it’s amazing to be part of an advocacy community that is fighting hard to make sure that this doesn’t happen.”
“There’s all sorts of mischief that might be produced.”
The Lawsuits
It appears unlikely that in its May 15 hearing, the Supreme Court would examine “the core question of the legality of the executive order that the Trump administration attempted to implement,” explained Kim. The court’s immediate focus on the core arguments of the three consolidated cases is a procedural issue on whether federal courts can issue nationwide injunctions.
“The decisions are essentially caught on a pause until the Supreme Court decides this procedural issue,” added Cesar Ruiz of LatinoJustice. The timeline is not clear because briefing schedules need to be set, and then it would have to work its way through the appellate process.
His organization, LatinoJustice, has filed a challenge after the executive order was put in place, arguing for the human right to citizenship and the need to protect the rights that flow from citizenship. The lawsuit was filed on behalf of the New York Immigration Coalition and a second organization comprised of rural and migrant ministries, both of which have deep roots in immigrant communities, explained Ruiz. Two pregnant mothers who are directly in the crosshairs of the EO are also represented.
“Birthright citizenship is largely the exclamation point on actions that we’ve seen that dehumanize and that try and strip away rights from Latino and other immigrant groups,” said Ruiz. He emphasized that birthright citizenship is a human right, embedded not only in the Constitution but also in human history.
“There is no justification in the Constitution or in any of our laws for the position that this administration was taking,” he emphasized.
The Need for Advocacy
The panel shared perspectives on how to ensure that the Supreme Court’s decision on the procedural issues does not undermine the broader fight to protect birthright citizenship. The key, they agreed, was to view this as an ongoing fight, not a single court battle, and maintain strong legal challenges across multiple courts.
They encouraged community organizations to mobilize advocacy efforts against the executive order and continue pressuring the Supreme Court against any attempts to restrict birthright citizenship. It was also essential, they said, to keep the focus on the fundamental constitutional principle of birthright citizenship by highlighting its historical significance while building broad public awareness about the constitutional implications. But it also was necessary, they added, to prepare for potential legislative and legal strategies if the procedural ruling was unfavorable.
“President Trump actually weakens citizenship for everyone, not just those directly affected by the executive order,” warned Kim.
“