What Is Birthright Citizenship and Could the Supreme Court End It?
Birthright citizenship was intended to repeal the Supreme Court’s 1857 Dred Scott v. Sandford decision, in which it ruled that Black people, free or enslaved, were not U.S. citizens but rather “a separate class of persons.” The Court later affirmed the principle of birthright citizenship in the 1898 case U.S. v. Wong Kim Ark, which clarified that children born within the United States or its possessions—even to noncitizens—are U.S. citizens. (The Indian Citizenship Act of 1924 separately granted citizenship to all Native Americans born in the United States.)
The concept of birthright citizenship is distinct from naturalization. The latter refers to a process by which a noncitizen can apply for citizenship after meeting specific requirements. These include proving a continuous residence in the country for a certain period of time, passing a civics test, and demonstrating basic English proficiency. In fiscal year 2024, 818,500 people became naturalized U.S. citizens, according to U.S. Citizenship and Immigration Services; this figure was higher than the annual average of 730,100 between 2010 and 2019.
What’s the Debate Over Birthright Citizenship?
Political opposition to birthright citizenship has increased in the United States over the past few decades—and has only grown since Trump’s first term when he pledged to end the practice. His second term began with a widespread crackdown on unauthorized immigration and sweeping moves to roll back legal pathways for immigration. Critics of the current approach argue that Section 1 of the Fourteenth Amendment has long been misinterpreted and that the original intention of the phrase “subject to the jurisdiction thereof” was not meant to apply to children born to parents who are only temporarily living in the United States or are not U.S. citizens.
Other opponents say that the practice incentivizes so-called birth tourism [PDF], which is when foreign expecting mothers intentionally travel to the United States to give birth to obtain U.S. citizenship for their child. In 2020, the U.S. State Department amended some of its regulations to try to restrict instances of birth tourism for category B nonimmigrant visas, which allow temporary entry into the United States for business, tourism, or pleasure. That same year, the Center for Immigration Studies estimated that about thirty-three thousand births each year are linked to women on tourist visas, a figure that the think tank Niskanen Center suggested was exaggerated.
Most legal observers, however, say that the Fourteenth Amendment explicitly endorses jus soli citizenship—pointing to the practice’s longstanding legal precedent—and that repealing it would “create a self-perpetuating class that would be excluded from social membership for generations.” In a January 2025 poll by the Associated Press-NORC Center for Public Affairs Research, 51 percent of respondents said they “somewhat or strongly oppose” changing the Constitution so that children born to parents who are in the United States without authorization are not automatically granted citizenship, compared to 28 percent who “somewhat or strongly favor” doing so.
And ending birthright citizenship would not necessarily curtail unauthorized migration, experts say. In fact, it could increase the population of unauthorized immigrants by an estimated 2.7 million by 2045, according to a joint analysis between the Migration Policy Institute and Pennsylvania State University’s Population Research Institute. Ending the practice could also limit the number of available legal pathways to U.S. residence; currently, U.S. citizen children must be at least twenty-one years old to sponsor their parents for legal permanent residency—an option that could disappear without that child’s citizenship status.
How Many Countries Have Birthright Citizenship?
The United States is one of just thirty-eight countries—the majority of which are in the Americas, including Brazil, Canada, and Mexico—that explicitly grant jus soli citizenship to anyone born there. In contrast, African, Asian, and European countries generally recognize jus sanguinis as a basis for citizenship, although the specific criteria and requirements vary among countries. Irish citizenship, for example, can be obtained through direct descent even if an individual’s parents were not born in the country.
Can Trump Unilaterally Repeal Birthright Citizenship?
No. Although presidents can influence immigration law and policy, repealing birthright citizenship would require a constitutional amendment, the most recent of which was the Twenty-Seventh Amendment that was ratified in 1992. Congress could pass an amendment, but it would need the consent of two-thirds of Congress and then ratification by at least thirty-eight states.
However, Trump’s attempt to crack down on immigration and narrow who is considered a U.S. citizen at birth is not a new effort: Previous legislative attempts have sought to do so, although they failed to advance in Congress. Several federal judges found Trump’s executive order to be inconsistent with the Supreme Court’s longstanding interpretation of the Fourteenth Amendment’s Citizenship Clause and have blocked its implementation. Meanwhile, nearly two dozen states, including Connecticut and New Jersey, as well as civil and immigrant rights’ advocates have filed lawsuits challenging the order’s constitutionality.
Diana Roy is Senior Writer/Editor, Latin America, at CFR. Amelia Cheatham and Esther Sun contributed to this article. This article is published courtesy of the Council on Foreign Relations (CFR).
