An IMGlobalWealth.News Report
America’s Supreme Court appeared to settle the question of birthright citizenship in June. Barely five weeks later, President Donald Trump has reopened the argument with two narrower executive orders. The resulting legal battle highlights just how unusual the American approach remains among developed economies.
For the moment, the central rule governing American citizenship remains clear: almost everyone born on US soil is an American citizen, irrespective of whether their parents are citizens, permanent residents, temporary visa holders or undocumented migrants.
That principle received unusually strong reinforcement on June 30th, when the US Supreme Court ruled 6-3 in Trump v. Barbara that children born in America to parents who are unlawfully or temporarily present are nevertheless “subject to the jurisdiction” of the United States and therefore citizens from birth under the Fourteenth Amendment. (Supreme Court)
The judgment struck down President Trump’s January 2025 attempt to substantially narrow birthright citizenship. It also reaffirmed the interpretation associated with the landmark 1898 decision United States v. Wong Kim Ark. (Reuters)
Yet the dispute is not over.
On August 6th, Trump signed two fresh executive orders. The more constitutionally contentious, Executive Order 14418, instructs federal agencies not to recognise citizenship in several circumstances when neither parent is an American citizen. These include children whose parents are classified as “alien enemies”, certain employees of foreign governments and international organisations, and cases involving commercial arrangements or alleged fraud designed to obtain birthright citizenship. It also includes certain births in US territories where citizenship is not conferred by federal statute. (Federal Register)
“(…) For now, therefore, US birthright citizenship survives“
A second order, Executive Order 14419, takes direct aim at “birth tourism”, defined as entering the United States on a non-immigrant visa for the purpose of giving birth. It authorises measures including refusing or revoking visas, denying entry and taking action against businesses facilitating such arrangements. (The White House)
That distinction matters. Washington has considerable authority over who may enter the country and on what visa. Its ability to decide that a child already born inside the country is not a citizen faces a much higher constitutional hurdle.
Civil-rights organisations have now returned to court.
On August 11th, the American Civil Liberties Union and other groups asked a federal judge in New Hampshire to prevent the administration from using the new measures to deny citizenship to children protected by the Supreme Court’s June ruling. They argue that the president is attempting, through narrower categories, to achieve something the Supreme Court has already said cannot be done by executive order. The White House maintains that the new measures comply with the Court’s judgment. (Reuters)
America remains an international outlier
The argument is particularly striking when the United States is compared with other advanced economies.
Canada remains the closest major developed-country comparison. A child born in Canada is generally Canadian automatically, regardless of parental immigration status, with the principal exception involving children of accredited foreign diplomats. (Canada)
The United Kingdom, by contrast, abandoned unconditional birthright citizenship in 1983. A child born there today is generally automatically British only when at least one parent is British or “settled” in the country at the time of birth. (GOV.UK)
Australia similarly moved away from automatic territorial citizenship in 1986. Birth in Australia alone is insufficient in most cases: citizenship typically depends upon a parent being an Australian citizen or permanent resident, although a child ordinarily resident in Australia throughout the first ten years of life can acquire citizenship under separate provisions. (Immigration and citizenship Website)
Across the European Union, citizenship rules remain a national competence rather than an EU-wide system. European countries generally place considerably greater emphasis on descent, parental nationality or residence than the traditional American model. Conditional forms of jus soli exist in several countries, but Europe has largely moved away from the proposition that mere birth on the territory, regardless of parental circumstances, should automatically confer nationality. (European Union Agency for Asylum)
That makes the United States, alongside Canada and a number of predominantly American-hemisphere states, relatively unusual among wealthy democracies.
A constitutional question, not merely an immigration policy
The difference is that America’s system is not simply an immigration policy that a government can readily rewrite. It is anchored in the Fourteenth Amendment.
The Supreme Court has now expressly held that even parents who are unlawfully or temporarily in the country remain sufficiently subject to US jurisdiction for their American-born children to acquire citizenship. (Supreme Court)
Trump’s latest strategy therefore appears considerably narrower than his first. Measures against visa abuse or fraudulent entry may give the administration more room to manoeuvre. Attempts to use those circumstances to deprive an American-born child of citizenship are likely to encounter the same constitutional question the Supreme Court answered in June.
For now, therefore, US birthright citizenship survives.
But the August orders show that the political battle over who becomes American at birth is far from finished. The next test will be whether the courts regard Trump’s new categories as genuine exceptions left open by the Supreme Court, or simply a narrower route towards a destination the Constitution has already placed beyond presidential reach.
