What to Know About Trump’s Order on Birthright Citizenship and the Legal Battle Around It

Donald Trump is trying to redefine who is allowed to be a U.S. citizen. On the first day of his presidency, Trump signed an order challenging a long-standing constitutional right that people born inside the U.S. are guaranteed citizenship. The right has been considered settled law since it was ratified as part of the Constitution more than 150 years ago.

Trump told federal departments to deny the right known as birthright citizenship from children born to mothers and fathers in the country unlawfully. Under his order, it would also deny citizenship to children born to parents in the U.S. on work or study visas, tourism visas, or when neither parent is a U.S. citizen or permanent resident. The order could impact who is granted passports, social security numbers, and certificates of citizenship. If it stands, the changes would go into effect on Feb. 19.

Within hours, Trump’s action was challenged in court as unconstitutional. A coalition of immigrant rights groups—expecting Trump to quickly sign such an order—filed a lawsuit on Monday night asking a federal court in New Hampshire to declare the order unlawful and stop the federal government from implementing it. “The framers of the Fourteenth Amendment specifically enshrined this principle in our Constitution’s text to ensure that no one—not even the President—could deny children born in America their rightful place as citizens,” read the lawsuit. On Tuesday, the attorneys general for 22 Democratic-led states, Washington, D.C. and the city of San Francisco joined in, filing similar lawsuits in federal courts in Seattle and Boston. 

Here’s what to know about Trump’s order:

Who would the executive order impact?

If allowed to stand, the order would block citizenship for all children born after Feb. 19, 2025, who don’t have at least one U.S. citizen or lawful permanent resident parent.

Trump’s instructions would stop the granting of automatic citizenship for children born in the U.S. to mothers who are not legally in the country, unless their father was a U.S. citizen or lawful permanent resident. It would also deny citizenship from children of mothers who are temporarily in the country on a work visa, student visa or tourist visa, and whose fathers aren’t citizens or permanent residents. 

About 150,000 children are born each year in the U.S. to two parents who don’t have legal status, according to the lawsuit filed by 18 states. “They will all be deportable, and many will be stateless,” says the lawsuit. “And despite the Constitution’s guarantee of their citizenship, they will lose their rights to participate in the economic and civic life of their own country—to work, vote, serve on juries, and run for certain offices.”

What documents would be denied?

The federal government routinely creates certain documents for newborns recognized as U.S. citizens. Those documents include passports issued by the Department of State, social security cards issued by the Social Security Administration and certificates of citizenship issued by U.S. Citizenship and Immigration Services, which falls under the Department of Homeland Security. Trump’s order instructed federal agencies to draft new instructions to guide federal officials on who should be excluded from receiving those documents that confirm citizenship. 

The order could also impact applications for benefits like food assistance for children administered by the Department of Agriculture, and health care services supported by the Health and Human Services.

Trump’s order does not directly affect the granting of birth certificates, which are usually administered by states.

When does the order go into effect?

Trump gave federal agencies 30 days—until Feb. 19—to draft instructions for how to deny citizenship to the categories of people he laid out. The order would only apply to people born on or after that date. If courts intervene, the order’s implementation could be delayed or blocked entirely. 

Does Trump have the power to do this?

Trump’s order hinges on convincing courts to upend a century and a half of judicial rulings by accepting his interpretation of a single clause in the 14th Amendment. “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.” The key phrase there is “subject to the jurisdiction thereof.” Trump’s order instructs agencies to consider people who are in the country on temporary visas or without authorization as being not subject to the jurisdiction of the United States.

Trump’s reading of the Constitution flies in the face of settled law, says Evan Bernick, associate professor of law at Northern Illinois University, and co-author of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. 

The amendment was first designed in the wake of the Civil War by Black activists and abolitionists. The Republican Party decided it should be enshrined in the Constitution in order to protect the citizenship rights of formerly enslaved people and their descendants. 

Bernick says the act was purposely written to be sweeping and broad in scope. The exception to automatic citizenship intended through the phrase “subject to the jurisdiction thereof” primarily applies to children of foreign diplomats, who have diplomatic immunity and are not subject to U.S. laws. The phrasing was debated when it was written and the intended exceptions were made intentionally narrow, Bernick says. 

“Birthright citizenship is a constitutional guarantee that has been settled as a matter of Supreme Court doctrine for over 150 years. The Trump administration’s interpretation, he adds,  ignores both “the meaning of the text of the 14th Amendment and the history behind why that text is the way it is.” Nonetheless, the legal fight over Trump’s executive order is widely expected to end up at the Supreme Court.